[Federal Register Volume 89, Number 13 (Friday, January 19, 2024)]
[Rules and Regulations]
[Pages 3577-3581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00980]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 391

[Docket No. FMCSA-2022-0111]


Qualifications of Drivers: Medical Advisory Criteria

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

ACTION: Final rule.

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SUMMARY: FMCSA updates the Medical Advisory Criteria published as an 
appendix in the Code of Federal Regulations (CFR). The appendix 
provides guidance for medical examiners listed on FMCSA's National 
Registry of Certified Medical Examiners (National Registry) on the 
applicability and interpretation of the physical qualification 
standards for operators of commercial motor vehicles. The advisory 
criteria in the appendix are also intended to provide recommendations 
and information to assist medical examiners in applying the standards, 
basic information related to testing, and matters to consider when 
making a qualification determination. The updated Medical Advisory 
Criteria replace all previous versions of the criteria.

DATES: This final rule is effective on January 19, 2024.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief, 
Medical Programs Division, FMCSA, 1200 New Jersey Avenue SE, 
Washington, DC 20590, (202) 366-4001, <a href="/cdn-cgi/l/email-protection#bbfdf6f8e8fad6dedfd2d8dad7fbdfd4cf95dcd4cd"><span class="__cf_email__" data-cfemail="b2f4fff1e1f3dfd7d6dbd1d3def2d6ddc69cd5ddc4">[email protected]</span></a>. If you have 
questions on viewing material in the docket, call Dockets Operations at 
(202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Availability of Documents

    To view comments or any documents mentioned as being available in 
the docket, go to https://www.regulations.gov/docket/FMCSA-2022-0111/document and choose the document to review. To view comments, 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., 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.

II. Legal Basis

    FMCSA has statutory authority under 49 U.S.C. 31136(a)(3) and 
31149(c)(1)(A)(i)--delegated to the Agency by 49 CFR 1.87(f)--to 
establish regulations to ensure the physical condition of commercial 
motor vehicle operators is adequate to enable them to operate the 
vehicles safely. The guidance in the Medical Advisory Criteria is 
related to the physical qualification regulations required by those 
sections.
    The notice and comment rulemaking procedures of the Administrative 
Procedure Act (APA) do not apply to interpretative rules and general 
statements of policy (commonly called ``guidance'') (5 U.S.C. 
553(b)(A)). The Medical Advisory Criteria are interpretative rules that 
provide guidance, but do not amend any Agency regulation or establish 
any requirements for medical examiners or drivers not found in existing 
regulations. Accordingly, FMCSA was not required under the APA to 
solicit public comment on the criteria. Nevertheless, to ensure that 
the Medical Advisory Criteria provide clear, useful, and relevant 
information for stakeholders and as encouraged by DOT policy,\1\ FMCSA 
opted to make a draft of the criteria available for public review and 
comment (87 FR 50282 (Aug. 16, 2022)). Although FMCSA voluntarily 
provided an opportunity for public comment on the Medical Advisory 
Criteria, its decision to do so does not make applicable any of the 
other procedural requirements in the APA or most of the other statutes 
or executive orders that would apply if the opportunity for prior 
notice and public comment were required.
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    \1\ Section 14(f) of DOT 2100.6A (Rulemaking and Guidance 
Procedures) states that it is DOT policy to encourage providing an 
opportunity for public comment on guidance documents, as public 
input can be very helpful in formulating and improving the guidance 
that DOT offers.
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    Further, the APA does not require interpretive rules such as this 
to be published in the Federal Register with an effective date that is 
not less than 30 days after publication (5 U.S.C. 553(d)(2)). 
Therefore, this rule is effective on the date of publication in the 
Federal Register to coincide with the publication of the revised 
Medical Examiner's Handbook (MEH).

III. Background

    In 2000, FMCSA adopted a revised medical examination report that 
also contained the Agency's guidelines to help medical examiners assess 
an individual's physical qualifications. These guidelines, in the form 
of advisory criteria, were strictly advisory and were established after 
consultation with physicians, States, and industry representatives (65 
FR 59363, 59364 (Oct. 5, 2000)). Subsequently, when FMCSA revised the 
report form again, the medical advisory criteria were removed from the 
report form and published as Appendix A to 49 CFR part 391 (80 FR 22790 
(Apr. 23, 2015)).
    On August 16, 2022, FMCSA made available for public comment a 
revised and updated draft MEH, which included updates to the Medical 
Advisory Criteria (87 FR 50282). The goal of the updated Medical 
Advisory Criteria was to provide guidance for medical examiners to 
consider when making physical qualification determinations in 
conjunction with established best medical practices. Information that 
was outdated, obsolete, or no longer relevant was removed from the 
Medical Advisory Criteria. The Agency stated that the revised Medical 
Advisory Criteria would be included in the MEH and would also be 
published in Appendix A to 49 CFR part 391. The final version of the 
criteria would be identical in both publications.
    FMCSA notes that, as a procedural matter, a final rule is required 
by the Office of the Federal Register to change any text included in 
the CFR. This is so even if the CFR text changed is guidance in an 
interpretive rule, as is the case here.

[[Page 3578]]

IV. New Regulatory Guidance

    After consideration of the public comments and further internal 
review, FMCSA has published a revised MEH that includes revisions to 
the Medical Advisory Criteria. A Federal Register notice about this 
publication of the MEH and the treatment of some of the public comments 
is being issued concurrently with this notice. The revised criteria 
included in the MEH are identical to the criteria published by this 
notice in Appendix A to 49 CFR part 391; although, the order of the 
criteria differs. The criteria in the MEH reflects the order in which a 
medical examiner typically conducts the physical qualification 
examination, while Appendix A organizes the criteria in the same order 
that the physical qualification standards appear in 49 CFR 391.41(b). 
Consistent with previous practice, the Medical Advisory Criteria are 
advisory and are therefore considered guidance because they provide 
interpretations and recommendations for the physical qualification 
standards contained in the Federal Motor Carrier Safety Regulations. 
The updated Medical Advisory Criteria replace all previous versions of 
the criteria. Previous versions of the Medical Advisory Criteria should 
not be relied upon.

V. Publication of the Regulatory Guidance

    Each guidance document issued by FMCSA must be published on a 
publicly accessible DOT internet website on the date of issuance (49 
U.S.C. 113 note).\2\ Accordingly, in addition to being available in 
this docket and the MEH, the Medical Advisory Criteria will be 
available in FMCSA's Guidance Portal (https://www.fmcsa.dot.gov/guidance). The criteria also will be available on FMCSA's website at 
https://www.fmcsa.dot.gov/regulations/medical/medical-regulations-and-guidance-resource-links and on the National Registry website at https://nationalregistry.fmcsa.dot.gov/resource-center.
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    \2\ See section 5203(a)(2)(A) and (a)(3) of the Fixing America's 
Surface Transportation Act, Public Law 114-94, 129 Stat. 1312, 1535 
(Dec. 4, 2015).
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    FMCSA expects to review the guidance no later than 5 years after it 
is published and will consider at that time whether the guidance should 
be withdrawn, reissued, or incorporated into FMCSA's regulations.

VI. Regulatory Analysis

A. Regulatory Flexibility Act (Small Entities)

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), 
FMCSA is not required to complete a regulatory flexibility analysis 
because, as discussed earlier in the Legal Basis section, this action 
is not subject to notice and public comment under section 553(b) of the 
APA.

B. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 
29, 1996), FMCSA wants to assist small entities in understanding this 
final rule so they can better evaluate its effects on themselves and 
participate in the rulemaking initiative. If the final rule will affect 
your small business, organization, or governmental jurisdiction and you 
have questions concerning its provisions or options for compliance; 
please consult the person listed under the FOR FURTHER INFORMATION 
CONTACT section of this final rule.

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $192 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2022 levels) or more in any 1 year. This final rule will not result in 
such an expenditure.

D. Paperwork Reduction Act

    This final rule contains no new information collection requirements 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 
13132 if it has ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' FMCSA has determined that this rule will not have 
substantial direct costs on or for States, nor will it limit the 
policymaking discretion of States. Nothing in this action preempts any 
State law or regulation. Therefore, this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Impact Statement.

F. Privacy Act

    The Consolidated Appropriations Act, 2005 (Pub. L. 108-447, 118 
Stat. 2809, 3268, Dec. 8, 2004 (5 U.S.C. 552a note)), requires the 
Agency to conduct a privacy impact assessment of a regulation that will 
affect the privacy of individuals. Privacy impact assessments were 
completed when the physical qualification regulations relating to the 
guidance were adopted. The guidance in the Medical Advisory Criteria 
does not present any new privacy concerns that were not previously 
addressed in those assessments. Also, because this interpretive rule 
does not require the collection of personally identifiable information, 
the Agency is not required to conduct a privacy impact assessment.

G. E.O. 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

H. National Environmental Policy Act of 1969

    FMCSA analyzed this rule pursuant to the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action 
is categorically excluded from further analysis and documentation in an 
environmental assessment or environmental impact statement under FMCSA 
Order 5610.1 (69 FR 9680, Mar. 1, 2004), Appendix 2, paragraph 1.a. 
regarding guidance documents.

List of Subjects in 49 CFR Part 391

    Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor 
carriers, Reporting and recordkeeping requirements, Safety, 
Transportation.

    For the reasons stated in the preamble, FMCSA amends 49 CFR part 
391, as follows:

PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE 
(LCV) DRIVER INSTRUCTORS

0
1. The authority citation for part 391 continues to read as follows:


[[Page 3579]]


    Authority:  49 U.S.C. 504, 508, 31133, 31136, 31149, 31502; sec. 
4007(b), Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114, Pub. L. 
103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat. 
1748, 1767; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; secs. 
5403 and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1560; sec. 2, 
Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.


0
2. In part 391, Appendix A is revised to read as follows:

Appendix A to Part 391--Medical Advisory Criteria

I. Introduction

    This appendix contains the Federal Motor Carrier Safety 
Administration's recommendations and guidance in the form of Medical 
Advisory Criteria to help medical examiners assess a driver's 
physical qualification. These recommendations and guidance are 
strictly advisory and do not have the force and effect of law. They 
were established after consideration of public comments and after 
consideration of recommendations from the Agency's Medical Review 
Board.

II. Interpretation of Medical Standards

    Since the issuance of the regulations for physical 
qualifications of commercial motor vehicle drivers, the Federal 
Motor Carrier Safety Administration has published recommendations 
and guidance called advisory criteria to help medical examiners in 
determining whether a driver meets the physical qualification 
standards for commercial driving. These recommendations have been 
derived from the Medical Examiner's Handbook to provide information 
to medical examiners that is directly relevant to the physical 
qualification examination.

A. Medical Advisory Criteria for 49 CFR 391.41(b)(1)

    1. Only individuals with loss of all five fingers are considered 
to have loss of a hand under Sec.  391.41(b)(1).
    2. Unless an individual possesses a skill performance evaluation 
certificate, loss of a foot, a leg, a hand, or an arm precludes 
physical qualification. Even if an individual has a prosthesis that 
replaces the foot, leg, hand, or arm, as applicable, certification 
is precluded without a skill performance evaluation certificate.
    3. An individual may be eligible for a skill performance 
evaluation certificate under Sec.  391.41(b)(1) or Sec.  
391.41(b)(2), or both.

B. Medical Advisory Criteria for 49 CFR 391.41(b)(2)

    1. Individuals with loss of fewer than all five fingers or any 
number of toes should be evaluated under Sec.  391.41(b)(2) to 
determine whether there is an impairment, defect, or limitation of a 
hand or foot that interferes with the ability to perform normal 
tasks associated with operating a commercial motor vehicle.
    2. A skill performance evaluation certificate is only available 
under Sec.  391.41(b)(2) for impairment, defect, or limitation of a 
limb. A skill performance evaluation certificate is not available 
for impairment of the spine or torso that does not result in 
impairment, defect, or limitation of a limb.
    3. An individual may be eligible for a skill performance 
evaluation certificate under Sec.  391.41(b)(1) or Sec.  
391.41(b)(2), or both.

C. Medical Advisory Criteria for 49 CFR 391.41(b)(4)

    1. The phrase ``has no current clinical diagnosis of'' is 
specifically designed to encompass a clinical diagnosis of a current 
cardiovascular condition, or a cardiovascular condition that has not 
fully stabilized. The phrase ``known to be accompanied by'' is 
designed to include a clinical diagnosis of a cardiovascular disease 
that is accompanied by, or is likely to cause, symptoms of syncope, 
dyspnea, collapse, or congestive cardiac failure.
    2. Coronary artery bypass surgery and pacemaker implantation are 
remedial procedures and, thus, do not preclude medical 
certification. Implantable cardioverter-defibrillators are installed 
to address an ongoing underlying cardiovascular condition and are 
likely to cause syncope or collapse as a result of the underlying 
cardiovascular condition, as well as when they discharge.
    3. Anticoagulation therapy is a medical treatment, which can 
improve the health and safety of the individual, and should not, by 
its use alone, preclude certification of the individual. The 
emphasis should be on the underlying medical condition(s) that 
requires treatment and the general health of the individual.

D. Medical Advisory Criteria for 49 CFR 391.41(b)(5)

    1. Many conditions interfere with oxygen exchange and may 
interfere with the ability to control and drive a commercial motor 
vehicle safely. These include, but are not limited to, emphysema, 
chronic asthma, carcinoma, tuberculosis, chronic bronchitis, and 
obstructive sleep apnea.
    2. If the medical examiner detects a possible undiagnosed or 
inadequately treated respiratory dysfunction that may be likely to 
interfere with the individual's ability to control and drive a 
commercial motor vehicle safely, the medical examiner should confer 
with the treating provider or should recommend that the individual 
be referred to a specialist for further evaluation and therapy.

E. Medical Advisory Criteria for 49 CFR 391.41(b)(6)

    1. An elevated blood pressure finding should be confirmed by at 
least two subsequent measurements.
    2. Hypertension alone is unlikely to interfere with the ability 
to operate a commercial motor vehicle safely; however, the 
likelihood increases when target organ damage, particularly cerebral 
vascular disease, is present. The guidance on the stages of 
hypertension below is based on the Federal Motor Carrier Safety 
Administration's Cardiovascular Advisory Panel Guidelines for the 
Medical Examination of Commercial Motor Vehicle Drivers (October 
2002), which adopted the sixth report of the Joint National 
Committee on Detection, Evaluation, and Treatment of High Blood 
Pressure (1997).
    3. Stage 1 hypertension corresponds to a systolic blood pressure 
of 140-159 mmHg and/or a diastolic blood pressure of 90-99 mmHg. An 
individual with a blood pressure in this range is at low risk for a 
hypertension-related event that is likely to interfere with the 
ability to operate a commercial motor vehicle safely and may be 
medically certified to drive for a 1-year period. Certification 
examinations should be done annually thereafter and should be at or 
less than 140/90. If less than 160/100 but greater than 140/90 at 
the subsequent examinations, the individual may be given a one-time 
certification of 3 months to reduce the blood pressure to less than 
or equal to 140/90.
    4. A blood pressure of 160-179 systolic and/or 100-109 diastolic 
is considered Stage 2 hypertension. A blood pressure in this range 
is an absolute indication for antihypertensive drug therapy. The 
individual may be given a one-time certification of 3 months to 
initiate or adjust antihypertensive drug therapy and to reduce the 
blood pressure to less than or equal to 140/90. Provided treatment 
is well tolerated and the driver demonstrates a blood pressure value 
of 140/90 or less, the individual may be certified for 1 year.
    5. A blood pressure at or greater than 180 (systolic) and 110 
(diastolic) is considered Stage 3 and carries a high risk for an 
acute blood pressure-related event that is likely to interfere with 
the ability to operate a commercial motor vehicle safely. The 
individual should not be qualified, even for a short period, until 
the blood pressure is reduced to 140/90 or less and treatment is 
well tolerated. The individual may be certified for 6 months and 
biannually (every 6 months) thereafter if at recheck blood pressure 
is 140/90 or less.
    6. Annual certification is recommended if the medical examiner 
does not know the severity of hypertension prior to treatment.
    7. Treatment includes non-pharmacologic and pharmacologic 
modalities as well as counseling to improve or eliminate the factors 
that contributed to the hypertension. Most antihypertensive 
medications also have side effects, such as somnolence or syncope. 
The importance of side effects must be evaluated on an individual 
basis and considering the underlying hypertension. Individuals 
should be alerted to the possibility that antihypertensive 
medications may interfere with the ability to operate a commercial 
motor vehicle safely.
    8. Medical certification for secondary hypertension is based on 
the above stages. Evaluation is warranted if an individual is 
persistently hypertensive on maximal or near-maximal doses of two to 
three pharmacologic agents. Some causes of secondary hypertension 
may be amenable to surgical intervention or specific pharmacologic 
treatment.

F. Medical Advisory Criteria for 49 CFR 391.41(b)(7)

    1. Once an individual has been diagnosed as having a rheumatic, 
arthritic, orthopedic, muscular, neuromuscular, or vascular disease, 
then the individual has an established history of that disease.

[[Page 3580]]

    2. The medical examiner, when examining an individual, should 
consider the following: the nature and severity of the individual's 
condition (such as sensory loss or loss of strength); the degree of 
limitation present (such as range of motion); the rate or stage of 
progression (symptoms may not be present initially but may manifest 
over time); and whether symptoms are likely to interfere with the 
ability to control and operate a commercial motor vehicle safely.
    3. If severe functional impairment exists, the individual does 
not physically qualify. In cases where more frequent monitoring is 
required, a Medical Examiner's Certificate, Form MCSA-5876, for less 
than the maximum certification period may be issued.

G. Medical Advisory Criteria for 49 CFR 391.41(b)(8)

    1. Epilepsy is a chronic functional disease characterized by 
seizures or episodes that usually occur without warning, resulting 
in loss of voluntary control that may lead to loss of consciousness. 
Therefore, the following individuals are not physically qualified:
    <bullet> An individual who has a medical history of epilepsy or 
a seizure disorder, unless the individual satisfies the criteria 
described in paragraph 5 of the Medical Advisory Criteria for Sec.  
391.41(b)(8);
    <bullet> An individual who has a current clinical diagnosis of 
epilepsy or a seizure disorder; or
    <bullet> An individual who is taking antiseizure medication to 
prevent seizures.
    2. When an individual has had a single unprovoked episode of 
loss of consciousness (i.e., the cause is unknown or there is no 
clear provoking trigger) that is determined not to have been a 
seizure, the medical examiner may certify the individual if the 
medical examiner determines recurrence of loss of consciousness or 
loss of ability to control a commercial motor vehicle is unlikely 
and the individual is not taking antiseizure medication. The 
determination should be made on an individual basis by the medical 
examiner in consultation with the treating provider. Before 
certification is considered, it is recommended that a 6-month 
waiting period elapse from the time of the episode.
    3. When an individual has had a single unprovoked nonepileptic 
seizure (i.e., the cause is unknown or there is no clear provoking 
trigger) that was treated with antiseizure medication or left 
untreated, the medical examiner may certify the individual if the 
individual is both off antiseizure medication and seizure free for 5 
years of more.
    4. When an individual has had a single provoked nonepileptic 
seizure or episode of loss of consciousness (i.e., there is a known 
medical condition or a clear provoking trigger that is reversible or 
avoidable, such as a drug reaction, alcohol or illicit drug 
withdrawal, high temperature, acute infectious disease, dehydration, 
or acute metabolic disturbance), the medical examiner may certify 
the individual if the individual has fully recovered, has no 
existing residual complications, and is not taking antiseizure 
medication and seizure recurrence and exposure to the provoking 
trigger in the future is unlikely.
    5. When an individual has a medical history of epilepsy or a 
seizure disorder, the medical examiner may certify the individual if 
the individual is both off antiseizure medication and seizure free 
for 10 years or more.
    6. If a medical examiner is unsure about whether to qualify an 
individual with a diagnosis of epilepsy or a seizure disorder, or a 
single nonepileptic seizure, the medical examiner may refer the 
individual to the Federal Motor Carrier Safety Administration for 
evaluation under the criteria for a Federal seizure exemption.

H. Medical Advisory Criteria for 49 CFR 391.41(b)(9)

    1. Emotional or adjustment disorders contribute directly to an 
individual's level of memory, reasoning, attention, and judgment, 
and are often caused by physical disorders. A variety of functional 
disorders can cause drowsiness, dizziness, confusion, weakness, or 
paralysis that may lead to incoordination, inattention, or loss of 
functional control that may be likely to interfere with the ability 
to drive a commercial motor vehicle safely. Physical fatigue, 
headache, impaired coordination, recurring physical ailments, and 
chronic ``nagging'' pain may be present to such a degree that they 
may be likely to interfere with the ability to drive a commercial 
motor vehicle safely. Somatic and psychosomatic complaints should be 
thoroughly evaluated when examining an individual.
    2. The degree to which an individual is able to appreciate, 
evaluate, and adequately respond to environmental strain and 
emotional stress is critical when assessing an individual's mental 
alertness and flexibility to cope with the stresses of commercial 
motor vehicle driving.
    3. It is unlikely that individuals who are highly susceptible to 
frequent states of emotional instability (e.g., due to 
schizophrenia, affective psychoses, paranoia, severe anxiety, or 
depressive neuroses) would satisfy the physical qualification 
standard.
    4. Careful consideration should be given to the side effects and 
interactions of medications in the overall qualification 
determination. Medications used to treat mental, nervous, organic, 
or functional disease or psychiatric disorder may be likely to 
interfere with the ability to drive a commercial motor vehicle 
safely.

I. Medical Advisory Criteria for 49 CFR 391.41(b)(11)

    1. Since the prescribed standard under the Federal Motor Carrier 
Safety Regulations is from the American National Standards Institute 
(ANSI), formerly the American Standards Association, it may be 
necessary to convert the audiometric results from the International 
Organization for Standardization (ISO) standard to the ANSI 
standard. To convert audiometric test results from ISO to ANSI, 
subtract 14 decibels (dBs) from the ISO result for 500 Hertz (Hz), 
subtract 10 dBs for 1,000 Hz, and subtract 8.5 dBs for 2000 Hz. To 
average, add the readings for the 3 frequencies tested and divide by 
3.
    2. For the whispered voice test, the individual should be 
stationed at least 5 feet from the medical examiner with the ear 
being tested turned toward the medical examiner. The other ear is 
covered. Using the breath that remains after a normal expiration, 
the medical examiner whispers words or random numbers such as 66, 
18, 3, etc. The medical examiner should then ask the individual to 
repeat the words or sequence. The medical examiner should not use 
only sibilants (``s'' sounding materials). The opposite ear should 
be tested in the same manner. If the individual fails the whispered 
voice test in both ears, the audiometric test should be 
administered.
    3. If an individual does not meet the requirements with the use 
of a hearing aid and requires a Federal hearing exemption, the box 
for ``Wearing hearing aid'' should NOT be selected on either the 
Medical Examination Report Form, MCSA-5875, or Medical Examiner's 
Certificate, Form MCSA-5876. Instead, only the box for accompanied 
by a hearing exemption is selected on the Medical Examination Report 
Form, MCSA-5875, and the Medical Examiner's Certificate, Form MCSA-
5876.
    4. To obtain an application for a hearing exemption, individuals 
who do not meet the Federal hearing standard may call (202) 366-
4001, email <a href="/cdn-cgi/l/email-protection#91f7fcf2e2f0f9f4f0e3f8fff6f4e9f4fce1e5f8feffe2d1f5fee5bff6fee7"><span class="__cf_email__" data-cfemail="fd9b909e8e9c95989c8f94939a988598908d899492938ebd999289d39a928b">[email protected]</span></a>, or go to https://www.fmcsa.dot.gov/medical/driver-medical-requirements/new-hearing-applicant-doc-email-version.

J. Medical Advisory Criteria for 49 CFR 391.41(b)(12)

    1. Federal law prohibits Schedule I drugs or substances listed 
on 21 CFR 1308.11 from being prescribed for any purpose. Therefore, 
a medical examiner cannot physically qualify an individual who uses 
Schedule I drugs or substances.
    2. A medical examiner may physically qualify an individual who 
uses an amphetamine, a narcotic, or other prescribed drug or 
substance listed on Schedules II through V in 21 CFR 1308.12 through 
1308.15 if the prescription exception is met. A drug or substance 
that is prescribed by a licensed medical practitioner who is 
licensed under applicable Federal, State, local, or foreign laws to 
prescribe controlled drugs and substances, is familiar with the 
individual's medical history, and has advised the individual that 
the drug or substance will not adversely affect the individual's 
ability to safely operate a commercial motor vehicle meets the 
prescription exception in Sec.  391.41(b)(12).
    3. One of the ways for the medical examiner to obtain the 
information that shows the prescription exception is satisfied is to 
request a written communication from the prescribing licensed 
medical practitioner who satisfies the regulation's requirements. A 
voluntary form available on the Federal Motor Carrier Safety 
Administration's website (391.41 CMV Driver Medication Form, MCSA-
5895) may be used, with the individual's consent, as an optional 
tool to obtain the required information.
    4. The medical examiner may request a non-Department of 
Transportation drug test to aid in the physical qualification 
determination, including when signs exist indicating the individual 
may not have

[[Page 3581]]

disclosed use of a scheduled drug or substance. Use of a substance 
abuse professional, see 49 CFR 40.3 and 40.281, is not required as 
part of a non-Department of Transportation drug test.

K. Medical Advisory Criteria for 49 CFR 391.41(b)(13)

    1. The phrase ``current clinical diagnosis of'' alcoholism is 
specifically designed to encompass a current alcoholic illness or 
those instances where the individual's physical condition has not 
fully stabilized.
    2. When in remission, the medical examiner may certify an 
individual who has a prior clinical diagnosis of alcoholism.
    3. The medical examiner may request a non-Department of 
Transportation alcohol test to aid in the physical qualification 
determination, including when the individual discloses excessive use 
of alcohol or the medical examiner observes signs of alcoholism. The 
use of a substance abuse professional, see 49 CFR 40.3 and 40.281, 
is not required. The medical examiner may request that individuals 
provide documentation from a professional qualified to conduct an 
alcohol use assessment that includes an opinion concerning whether a 
current clinical diagnosis of alcoholism is present or the 
individual is in remission prior to making a medical certification 
determination.

    Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2024-00980 Filed 1-18-24; 8:45 am]
BILLING CODE 4910-EX-P


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