8Parker v. United StatesDep’t of Transp., et al.No. 98-4331As such, we find that the FHWA’s decision denying Parkera waiver from the federal vision regulations is arbitrary andcapricious. Accordingly, the case is remanded so that theFHWA may create a functional capacity test consistent withits findings that an individual’s driving record is indicative offuture performance which will evaluate Parker’s driving skillsbased upon his individual capabilities.REVERSED and REMANDED.*The Honorable Sandra S. Beckwith, United States District Judge forthe Southern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0094P (6th Cir.)File Name: 00a0094p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________JERRYW.PARKER,Petitioner,v.UNITEDSTATESDEPARTMENTOFTRANSPORTATION,FEDERALHIGHWAYADMINISTRATION, and THEUNITEDSTATES OFAMERICA,Respondents.;>1No. 98-4331On Petition for Review of an Order of theFederal Highway Administration,United States Department of Transportation.Argued: December 13, 1999Decided and Filed: March 17, 2000Before: MERRITT and SILER, Circuit Judges;BECKWITH, District Judge.*2Parker v. United StatesDep’t of Transp., et al.No. 98-4331_________________COUNSELARGUED:Gerald W. Von Korff, RINKE & NOONAN, St.Cloud, Minnesota, for Petitioner. Matthew M. Collette, U.S.DEPARTMENT OF JUSTICE CIVIL DIVISION,APPELLATE STAFF, Washington, D.C., for Respondents.ON BRIEF:Gerald W. Von Korff, RINKE & NOONAN, St.Cloud, Minnesota, for Petitioner. Matthew M. Collette,Michael Jay Singer, U.S. DEPARTMENT OF JUSTICECIVIL DIVISION, APPELLATE STAFF, Washington, D.C.,for Respondents._________________OPINION_________________SILER, Circuit Judge. Petitioner, Jerry W. Parker, appealsthe Federal Highway Administration’s (“FHWA”) decision todeny him a license to drive commercial trucks in interstatecommerce because he suffers from monocular vision and ismissing part of his left arm. Because the FHWA’s decisionwas arbitrary and capricious, we REVERSE and REMAND.I. BACKGROUNDParker is a commercial truck driver who suffers from acongenital eye condition known as Coates disease. As aresult, he has corrected vision of 20/20 in his left eye andcorrected vision of 20/300 in his right eye. He also had partof his left arm amputated after a grain elevator accidenttwenty years ago. Although he is licensed to drivecommercial trucks intrastate in Ohio, Parker fails to meet theminimum federal safety standard for interstate commercialtruckers which requires a:[D]istant visual acuity of at least 20/40 (Snellen) in eacheye without corrective lenses or visual acuity separatelyNo. 98-4331Parker v. United StatesDep’t of Transp., et al.7and make appropriate findings of fact.’”)(quotingSchool Bd.of Nassau County v. Arline, 480 U.S. 273, 287 (1987)).The Department of Transportation (“DOT”) concedes thatit must make an individual inquiry into the merits of Parker’sapplication, but asserts that it lacks sufficient data on theperformance of drivers with multiple disabilities. As aconsequence, there is no standard or test that the FHWA canrely on to ensure that granting a waiver to someone withmultiple disabilities would achieve an equal or greater levelof safety than if the waiver was not granted.See Rauenhorst,95 F.3d at 723 (“[S]pecific waivers must be grounded onspecific test or standards.”). Although it admits that it wouldprobably grant Parker a waiver if he only suffered from one ofhis disabilities, the DOT contends that it cannot issue awaiver to a driver with multiple impairments withoutevidence that such waiver is consistent with the publicinterest and the safe operation of a CMV.See Ward v.Skinner, 943 F.2d 157 (1st Cir. 1991).We find the DOT’s argument unpersuasive. When theFHWA initiated the waiver program, it relied on severalstudies which indicated that “the best predictor of futureperformance by a driver is his past record of accidents andtraffic violations.” 63 Fed. Reg. 1524, 1525 (1998). Parkerhas clearly demonstrated that despite his multipleimpairments, he is able to safely operate a CMV.Furthermore, the DOT has not even attempted to consider adriving test with a review of Parker’s safety record. Byfailing to assess Parker’s actual capabilities, the DOT has inessence created a per se rule against granting vision waiversto individuals with multiple disabilities, thereby limiting suchindividuals’ employment opportunities. This stands in directcontradiction to the goals and purpose of the RehabilitationAct which is to provide equal opportunities for disabledindividuals, including assisting such individuals in obtainingsubstantial employment. 29 U.S.C. §§ 701(a)(6)-(b)(2).6Parker v. United StatesDep’t of Transp., et al.No. 98-43316A limb disability waiver may be granted to an individual who is notphysically qualified to drive under § 391(b)(1) as long as that individual“is otherwise qualified to drive a commercial motor vehicle....” 49 C.F.R.§ 391.49. Parker fails to qualify for such a waiver because of hiseyesight.II. STANDARD OF REVIEWThe Administrative Procedure Act provides that anagency’s action may not be set aside unless it is “arbitrary,capricious, an abuse of discretion, or otherwise not inaccordance with the law.” 5 U.S.C. § 706(2)(A);Rauenhorstv. Department of Transportation, 95 F.3d 715 , 718-19 (8thCir. 1996). “The scope of review is ‘narrow and a court isnot to substitute its judgment for that of the agency.’”Rauenhorst., 95 F.3d at 718-19 (quotingMotor Vehicle Mfrs.Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43(1983)). However, the agency must offer a satisfactoryexplanation of its reasons based on the relevant data.MotorVehicle Mfrs. Ass’n,63 U.S. at 43.III. DISCUSSIONTo be eligible for a federal vision waiver, an applicant mustsatisfy the CMV driver qualifications under 49 C.F.R. Part 39,which provides that a person is physically qualified to drivea CMV as long as he or she “has no loss of a foot, a leg, ahand, or an arm....” 49 C.F.R. § 391.41(b)(1).6BecauseParker is missing part of his left arm, the FHWA denied hisrequest for a vision waiver. Under § 504 of the RehabilitationAct, however, the FHWA must make an individualassessment of Parker’s driving capabilities before it can denyhis request for a vision waiver.See Hall v. United StatesPostal Service, 857 F.2d 1073, 1078-79 (6th Cir. 1988)(“Indetermining whether a handicapped individual can performthe essential functions of a position and, if not whether areasonable accommodation will enable him or her to do so, adistrict court ‘will need to conduct an individualized inquiryNo. 98-4331Parker v. United StatesDep’t of Transp., et al.31The first federal vision standard was adopted in 1932. This is thecurrent version of the standard, which has not been modified since 1971.See57 Fed. Reg. 6793, 6793-94 (1992).2When the ADA was enacted, the Secretary of Transportation wasgiven two years to review all motor vehicle safety standards “to ascertainwhether the standards conform with current knowledge about thecorrected to 20/40 (Snellen) or better with correctivelenses, distant binocular acuity of at least 20/40 (Snellen)in both eyes with or without corrective lenses, field ofvison of at least 70 degrees in the horizontal Meridian ineach eye, and the ability to recognize the colors of trafficsignals and devices showing standard red, green, andamber in both eyes.49 C.F.R. § 391.41(b)(10).1However, under the MotorCarrier Safety Act of 1984, Pub. L.No. 98-554, 98 Stat. 2832(codified at 49 U.S.C. § 31136(e), formerly 49 U.S.C. § app.2505(f)), the Secretary of Transportation is authorized togrant waivers from this regulation as long as the waivers “areconsistent with the public interest and safe operation of motorvehicles.” 49 U.S.C. § 31136(e)(1) (1994),as amended by49U.S.C. § 31136(e) (1996). In other words, an exemption foran unqualified driver will be granted if “such exemptionwould likely achieve a level of safety that is equivalent to, orgreater than the level that would be achieved absent suchexemption.” 49 U.S.C. § 31315(b)(1).In 1992, the FHWA initiated a program whereby waiverswould be granted to a limited group of visually impaireddrivers who failed to meet the federal vision standard, buthad a history of operating a commercial vehicle (“CMV”)safely.See57 Fed. Reg. 23370 (1992). The waiver programserved as part of a regulatory review of the medical andphysical qualifications placed on CMV drivers in light of theAmericans With Disabilities Act of 1990, 42 U.S.C. § 12101,et seq. (“ADA”), as well as the Rehabilitation Act of 1973, 29U.S.C. § 701, et seq. (“Rehabilitation Act”).2The4Parker v. United StatesDep’t of Transp., et al.No. 98-4331capabilities of persons with disabilities and currently availabletechnological aids and devices and whether such regulations are validunder this Act. The Committee expects that the agency will make anynecessary changes within the two year period to bring such regulationsinto compliance with the law. (Of course, a non- discriminationobligation on the part of the Department of Transportation also existscurrently under section 504 of the Rehabilitation Act of 1973.).”H.R.Rep. No. 485, 101st Cong., 2nd Sess., pt. 2 at 571990 U.S. CodeCong. & Ad. News pp. 303, 339.3In order to qualify for a waiver application, an applicant must:1) [B]e otherwise qualified under 49 CFR Part 391....;2) [H]old a valid commercial driver's license to operate a CMVissued after April 1, 1990....;3) [H]ave had three years' recent experience driving a CMVwithout (1) license suspension or revocation; (2) involvement ina reportable accident in which the applicant received a citationfor a moving violation; (3) conviction for driving a CMV whileintoxicated, leaving the scene of an accident involving a CMV,commission of a felony or more than one serious traffic violationinvolving a CMV; or (4) more than two convictions for anyother moving violation in a CMV....; and4) [P]resent proof from an optometrist or ophthalmologistcertifying that the applicant's visual deficiency has not worsenedsince his or her last examination, that vision in one eye is at least20/40 acuity, corrected or uncorrected, and that the applicant isable to perform the driving tasks required to operate a CMV.61 Fed. Reg. 606, 606-07(1996). The applicant must also: “(1) report allcitations for moving violations involving a CMV; (2) report thedisposition of the charge; (3) report any accident involvement whatsoeverwhile operating a CMV; (4) submit documentation of an annualexamination by an ophthalmologist or optometrist; and (5) submit reportsof vehicle miles traveled monthly in a CMV.”Id.at 607.participants consisted of experienced monocular drivers whomet minimal physical requirements and had clean drivingrecords.3The FHWA found that, despite their visualimpairments, the participants had better driving records thanall CMV drivers in general. Thus, the FHWA determined thatgranting waivers to these visually impaired drivers would be“‘consistent with the safe operation of commercial motorNo. 98-4331Parker v. United StatesDep’t of Transp., et al.54InAdvocates for Highway and Auto Safety v. Federal HighwayAdministration, 28 F.3d 1288 (D.C.Cir. 1994), the D.C. Circuit found theFHWA’s vision waiver program to be arbitrary and capricious because theFHWA needed “the waiver program ‘to evaluate the relationshipsbetween specific visual deficiencies and the operation of CMVs’ whilesimultaneously determining that the program will not result in adiminution of safety standards.”Id.at 1294. Because the record lackedany evidence to support the FHWA’s conclusion that safety standardswould not be diminished, the court found the program to be contrary tolaw and vacated the rule instituting it.Id.On remand the FHWAreviewed all the driver safety and performance data it had collected overthe two years that the waiver program had been in place.See59 Fed.Reg. 50887-02, 50890 (1994). Along with new evidence that was notavailable to the court inAdvocates, the FHWA confirmed its originaldetermination that granting waivers to monocular drivers who had threeyears of safe driving experience would not diminish safety standards.Id.at 50890-91.5Parker was licensed to drive a CMV interstate from 1985 toDecember 1993, and thereafter drove his CMV intrastate in Ohio.vehicles,’” and “be in the ‘public[’s] interest.’” 57 Fed. Reg.23370, 23371 (1992)(quoting former 49 U.S.C. app.§ 2505(f)).4In 1996, Parker applied for a federal vision waiver. As partof his application, Parker provided evidence that he haddriven over 1.2 million miles in a CMV since 1985 withoutincident.5Despite his impeccable driving record, the FHWAdenied Parker’s request after it learned that not only didParker have monocular vision, but he is also missing part ofhis left arm. The FHWA found that, although there wassufficient evidence to demonstrate that someone with Parker’svision impairment could drive safely, there was insufficientevidence that someone with multiple impairments couldoperate a commercial vehicle with the same degree of safetyas an unimpaired driver. Thus, the FHWA could not find thatsuch an exemption would achieve the same, or a greater, levelof safety that would be achieved absent such exemption.