The HONORABLE BRUCE M. VAN SICKLE, Senior United States * District Judge for the District of North Dakota, sitting by designation. _______________ No. 95-2841

_______________ David R. Rauenhorst, * * Petitioner, * * v. * On Petition for Review from * Federal Highway United States Department of * Administration. Transportation, Federal * Highway Administration, * * Respondent. *

_______________ Submitted: May 15, 1996 Filed: September 12, 1996

_______________ Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN SICKLE , Senior District Judge. *

_______________ VAN SICKLE, Senior District Judge.

Da vidRauenhorst seeks review of the Federal Highwa y Administration's (FHWA) decision to deny his request for a waiver from the federal licensing sta ndards for commercial truck drivers.2

We reverse the decision of the FHWA and direct the FHWA to c onsiderIn 1862, a Dutch ophthalmologist, Snellen, devised the 1 familiar eye chart used to measure visual acuity. The principal may be expressed as: visual acuity = distance at which the letter is read distance at which letter should normally be read Thus, 20/20 vision means a subject has read a letter at 20 feet that was designed to be read at 20 feet. 20/40 vision means that a letter which should normally be read at 40 feet must be brought in to 20 feet before it is recognized. Thomas D. Duane, Clinical Ophthalmology , vol. 1, 30.
3 the application on its merits.

I. BACKGROUND
Petitioner seeks review of the FHWA's decision to deny hi s application for a waiver of the federal regulation which requires binocular vision in order to qualify for a commercial driver' s license. Waivers are permitte d if the Secretary of Transportation or his agent "decides that the waiver is consistent with the public interest and safe operation of commercial motor vehicles." 4 9 U.S.C. § 31136(e)(1).

The current relevant federal regulation, which has been i n existence since 1937 in some form, denies commercial licenses for truckers who lack 20/40 (Snellen) vision in each eye with o r wi thout corrective lenses. 49 C.F.R. § 391.41(b)(10) (emphasi s 1 added). The current rule has been unchanged since 1971. 57 Fed

. Reg. 6793, 6794 (Feb. 28, 1992 ). For many years, however, drivers obtained commercial licenses u nder state laws even though they had the required vision in only one eye. These monocular drivers did not have accidents at greater rates than drivers with the re quisite vision in both eyes.4

In 1973, Congress passed the Rehabilitation Act to preven t discrimination against the disabled, including a provision toIn fact, more than 5,000 "unqualified" drivers were removed 2 from interstate driving positions by the 1984 MCSA and other enforcement measures. 59 Fed. Reg. 50887, 50888 (Oct. 6, 1994).
5 prevent discrimination against the disabled in federally assisted programs. 29 U.S.C. § 794(a). In 1978, Congress expanded thi s
se ctionto preclude discrimination in "any program or activit y cond uctedby any Executive agency." Id. No "otherwise qualifie d individual with handicaps" would be subject to discriminatio n solelybecause of that handicap. Id. To answer the question o f whether an individual is "otherwise qualified", the trier of fact wil l have to conduct an individualized inquiry in most cases

. Sc hool Bd. of Nassau County, Fla. v. Arline , 480 U.S. 273, 28 7 (1987).

In accordance with the 1978 amendment to 29 U.S.C. § 794(a), the De partment of Transportation (DOT) conducted a review o f
monocu lar drivers in 1982. This study indicated that monocula r drivers should be permitted to receive commercial licenses as long as they drove within their lim itations. The DOT, however, did not commence a formal process to amend the regulation.
In 1984, Congress passed the Motor Carrier Safety Act (MCSA) inorder to federalize traffic safety laws and to curtail th e development of inconsistent safety regulations in neighborin g states. While some states had allowed monocular drivers to operate
comm ercial vehicles under state law, the federalization proces s beganto limit job opportunities for these individuals due to 4 9 C.F.R. § 391.41(b)(10). See 59 Fed. Reg. 50887, 50888 (Oct. 6 , 2 1994) ("Adoption of the federal standard by many States, alo ng with steppe d-up enforcement at both the State and Federal levels , exp osedthese drivers to disqualification determinations . . .

. Congress has insisted on unifo rm standards consistent with Federal6

regula tions issued pursuant to the MCSA of 1984."). This Ac t contained the provisions authorizing the Secretary ofThe full relevant statement was as follows: 3 In light of this legislation [the ADA], the Committee expects that within two years from the date of enactment (the effective date of Title I of this legislation), the Secretary of Transportation will undertake a thorough review of these regulations to ascertain whether the standards conform with current knowledge about the capabilities of persons with disabilities and currently available technological aids and devices and whether such regulations are valid under this Act. The Committee expects that the agency will make any necessary changes within the two year period to bring such regulations into compliance with the law. (of course, a non-discrimination obligation on the part of the Department of Transportation also exists currently under section 504 of the Rehabilitation Act of 1973.). H.R. Rep. No. 485, 101st Cong., 2nd Sess., pt., 2, at 57 (1990).
7 Transportationto waive a regulation if it was in the publi c interest and consistent with safety. 49 U.S.C. § 31136(e). Th e Senate Committee on Commerce, Science, and Transportation ca utioned that the waiver provision "should be used with extreme care an d sho uldonly be used if the Secretary has developed sufficien t information to provide adequate assurance that such waiver w ill not adversely affect the safe oper ation of commercial motor vehicles." S. Rep. No. 424, 98th Cong., 2nd Sess. 8 (1994).

In 1990, the Americans with Di sabilities Act (ADA) was signed into law in order to "provide a clear and comprehensive nationa l mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). It was stated in the House of Representatives Education and Labor Committee report o n the bi ll that within two years of the effective date of the ADA , the DOT would review its regulations regarding qualifications for driver s of certain vehicle classifications. H.R. Rep. No. 485 , 101st Cong., 2nd Sess., pt. 2, at 57 (1990). Congress expecte d that the DOT would make the necessary changes to its regulation s in o rder to end unwarranted discrimination against the disabled. 38

Id.
The FHWA initiated an advance notice of proposed rulemaking on9

poss ible changes to its vision requirements. Concurrently, th e FHWAc ontracted with Ketron, Inc. to "study the relationshi p between visual disorders and commercial vehicle motor safety." 57 Fed. Reg. 23370 (Jun. 3, 1992).

I n order to determine what the safety standards for truc k drive rs should be, the FHWA decided to conduct a study in whic h they could compare experienced , visually-challenged drivers versus drivers who met the federal standards. On March 25, 1992, t he FHWA published a notice of intent t o issue waivers for disabled drivers who met state safety standards but not federal regulations , pursuant to the 49 U.S.C. § 31 136(e) waiver provision. To qualify as a driver one must have possessed 20/40 (Snellen) vision in the better eye. The FHWA found that there was a public interest i n furthering the employment of qualified individuals wit h disabi lities and the strict nature of the qualifications of th e waivers would allow the FHWA to make sure they were consiste nt with the safe operation of motor vehicles. 57 Fed. Reg. 23370, 2337 1 (Jun. 3, 1992). See 49 U.S.C. § 31136(e).
On July 16, 1992, the FHWA declared that it would give waivers to this limited group of exper ienced commercial drivers with clean safety r ecords. Petitioner never applied to be a member of thi s test group. He maintains that he was not aware of this program at the time. The deadline for applications was extended fro m September 21, 1992 until December 31, 1992. Therefore, a drive r had nine months between the notice of intent for the commencement of the waiver program and the application deadline. Over 3,70 0 app lications were received and the FHWA granted waivers to 2,41 1 drivers. 59 Fed. Reg. 50887 (Oct. 6, 1994). The United States Court of Appeals for the District o f Columbia Circuit vacated the waiver program and remanded the rule creating it in Advocates for Highway and Auto Safety v. Federa l10

Highway Admin. , 28 F. 3d 1288 (D.C. Cir. 1994). The cour t reasonedThe FHWA had revoked the waivers of 201 drivers of those 4 originally approved, 180 of which were terminated due to the driver's failure to submit a monthly driving report on time and 21 of which were ended for failure to submit to a complete medical examination. 59 Fed. Reg. 50887, 50890 (Oct. 6, 1994).
11 that since the FHWA acknowledged that its recent study failed t o provide sufficient foundation upon which to propose a satisfactory vis ionstandard for drivers, it was arbitrary and capricious fo r the FHW A to propose a waiver program as the agency could no t satisf actorilydetermine whether the waiver would be contrary t o public interest and consistent with the safe operation o f commercial vehicles. Id. at 1294. See 49 U.S.C. § 31136(e)

. Howe ver, those who had already been issued waivers wer e "g randfathered" and continued to drive commercial vehicles afte r the court's decision. 59 Fed. Reg. 50887, 50889 (Oct. 6, 1994).
On remand from the United States Court of Appeals for th e Distri ct of Columbia Circuit, the FHWA invited additional publi c
comme nt and conducted a thorough review of the evidence. In a n Oct ober 6, 1994 Notice of Determination, the FHWA announced tha t there was additional evidence to justify the issuance of wai vers to
ex periencedmonocular drivers with clean safety records. Bot h information provided by the st ates and the FHWA's waiver study had demonstrated that the safety performance of monocular driver s actually exceeded the safety p erformance of drivers as a whole. 59 Fed. R eg. 50887, 50890 (Oct. 6, 1994). The statistics confirme d 4 that the granting of the waive rs was consistent with public safety and that the public interest of making sure that commercial drivers
were phy sically capable to drive these vehicles was met. Id . a t 50 891. After receiving comments from almost twenty intereste d parties, the FHWA made a final determination validating the waiver program on November 17, 1994. 59 Fed. Reg. 59386 (Nov. 17, 1994).12

On February 22, 1995, the petitioner filed an application for a waiver of the vision requirements of 49 C.F.R. § 391.41(b)(10).13

He had driven for 22 years andfor over 1 million miles without an accident. But on May 24, 1995, the FHWA Administrator denied the pet itioner's request. The Administrator reasoned that even if a waiver was crafted so as to fi t only the petitioner, the precedent createdby this waiver would be the destruction of the relevan t federal regulation. Thus, anyone who shared characteristics with the petitioner would be subject to the new lower waiver standard, not the requirement within the Code of Federal Regulations

. Furt hermore, the Administrator felt that a finding that th e petitioner had many years of accident-free driving was not enough for the Administrator to determine if the public interest wa s being protected due to Congress' historical concern with driver safety. In essence, the Administrator believed that he could not justif y the w ithdrawal of a 60 year old federal regulation based on on e individual's petition.
The petitioner appeals the FHWA's denial of his petition for

a waiver of 49 C.F.R. § 391.41(b) (10) so that he may legall y operate a commercial vehicle.

II. STANDARD OF REVIEW
Under the Administrative Procedure Act, an agency actio n shall not be set aside unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Advocates for Highway and Auto Safety , 28 F. 3d a t 1293. The scope of review is "narrow and a court is not to substit ute its judgm ent for that of the agency." Motor Vehicle Mfrs. Ass'n o f United States v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 4 3 (1983); Atlantic Tele-Network, Inc. v. Federal Communication s Comm'n , 59 F.3d 1384, 1388 (D.C. Cir. 1995) (stating that re view is "hi ghlydeferential"); Mt. Graham Red Squirrel v. Espy , 986 F.2 d14

1568, 1571 (9th Cir. 1993); see Mueller v. United States Envtl

. ProtectionAgency , 994 F.2d 1354, 1356 (8th Cir. 1993) (citin g Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402, 41615

(1971) ) ("As long as the [agency] considered all of the relevant factors and its decision contains no clear error of judgment, w e will not substitute our judgment."). The agency, however, "mus t examine the relevant data and articulate a satisfactory expl anation for i ts action." Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43; se e Bowm anTransp., Inc. v. Arkansas-Best Freight System, Inc. , 41 9 U.S. 2 81, 285 (1974) ("The agency must articulate a rationa l connection between the facts found and the choice made.") (c itation omitted).

III. DISCUSSION

Our key q uestion is: does the history of known factors an d lapse of time reflect, on the part of the FHWA, an abuse o f discre tion, or arbitrary and capricious action not in accordanc e with law?
By the Motor Carrier Act of 1935, 49 Stat. 543, 546-7 (1935), Cong ress authorized federal regulation of motor carrier safety

. Under this original act, the Secretary of Transportation "ma y prescribe requirements for . . . (1) qualifications of emplo yees of a motor carrier." 49 U.S.C. § 31502(b). In 1966, the Depart ment of Transportationinherited the regulatory authority from th e Interstate Commerce Commission (ICC).

I n 1937, the ICC issued its initial vision standard whic h required "[g]ood eyesight in both eyes either without glasse s or by correction with glasses." 49 C.F.R. 192.3 (1938). Since the 1930s, the v ision standard has been made more stringent. In 1939, th e standard was made more specific, requiring 20/40 (Snellen) in one eye and 20/100 (Snellen) in th e other. 49 C.F.R. § 192.3(b) (Supp. 1939). The standard was amended in 1952 to require 20/40 (S nellen)16

visionin each eye, corrected or uncorrected. 17 Fed. Reg. 442 4 (19 52). "Field of vision" requirements and the ability t o distinguish colors were added in 1964. See 57 Fed. Reg. 6793,17

6794 (Feb. 28, 1992).

In 1970, the current visi on standard was adopted "in light of di scussions with the Administration's medical advisers." 35 Fed

. Reg. 6458 (1970). Under this standard, an individual is qualified to drive a commercial vehicle if that person: has distant visual acuity of a t least 20/40 (Snellen) in each eye without corrective lenses or visual acuit y separatelycorrected 20/40 (Snellen) or better wit h corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70 degrees in th e horizontal Meridian in each eye, and the ability t o recognize the colors of traffic signals and device s showing standard red, green, and amber. 49 C.F.R. § 391.41(b)(10). In 1973, Congress passed the Rehabilitation Act. Section 504 of that Act originally prohibited private employers participating in federally funded programs from discrimination against "ot herwise qual ifiedpersons." In 1978, Congress passed the Rehabilitatio n Comprehensive Services and Developmental Disabilities Amendments, and expanded section 504 to read: No otherwise qualified individual with a disability ... shall, solely by reason of his or her disability ... be subjec tedto discrimination ... under any program o r activity conducted by any Executive Agency. 29 U.S.C. § 794(a).
Th e 1978 amendment also required each executive agency t o "promulgate such regulations as may be necessary to carry out " sect ion504's requirements. The DOT initially responded by commissioning Bartow Associates to conduct a comprehensive review of the evidence supporting vision standards applicable to mo nocular drivers. The Monocular Driver: A Review of Distant Visual Acuity Risk Analysis Data (Bartow Study) (Sept., 1982). The study found that previous research reporting a connection between monocula r driving and safety had been based upon "small sample size an d18

dubious methodologies." Id. at 1. "Potentially spuriou s relationships, small samples, lack of controls, and the potential19

dominance of other variables reduces the validity of much of th e past research . . . In several studies, including one of 14,00 0 drivers, the most consistent r esult was a failure to find a direct relationship between poor static visual acuity performance a nd high accident rates for young and m iddle-aged drivers." Id. at 29. The BartowStudy further found that "recent studies that hav e
co rrelatedaccident involvement measures with measures of visua l fieldhave consistently failed [to obtain] any significan t relationships." Id. at 20.
According to the Bartow Study, much previous research h ad been flawed, because it failed to r ecognize that disabled drivers learn to drive within their limits. Monocular drivers learn effectively to use visual cues which do not depend upon binocular vision

. Un fortunately, many previous studies used binocular drivers wit h one eye closed as subjects. Thus, the drivers used in these flawed studies were actually learning to drive with a single good ey e during the experiment itself. Other studies used subjects who had recentlylost a single eye and, therefore, had not adjusted t o their disability. The Bartow Study concluded that the critica l issue in safe driving is the driver's ability to recognize th e limits of his capabilities andto drive within those capabilities.
In 1990, Congress, seeking to eliminate continue d discriminationagainst persons with physical and menta l disabilities, passed the Ameri cans with Disabilities Act. By H.R. Rep. N o. 485, 101st Cong., 2nd Sess., pt. 2, at 57 (1990), th e agency was directed to "make any necessary changes within the two year period to bring such regulations into compliance with th e law." As of this writing, the regulations have not been cor rected.

In 1992, the FHWA employed Ketron, Inc., to study th e relationship between visual di sorders and commercial motor vehicle20

safety.21

The Ketron study found that:

Ar eview and critical evaluation were conducted on the mos t significant scientific researc h directed at investigating the relationship between visual performance and driving fo r passenger, commercial, and aged/visually impaired moto r vehicle operators. Many studies relating visual tes t performance to correlates of driver safety, such as accident and violation rates, have been reported since the last major revision of the CMV vision standard in 1970. Reports on new testing methods were reviewed, including contrast sensitivit y, glare sensitivity, low-light visual acuity, and dynamic visu al acuity. In general agreement with studies reported prior to 1970, these newer studies were able to demonstrate only weak rela tionships between measures of vision and correlates o f dr iver safety. No study involving purely visual measure s reported an empirical ability to identify unsafe drivers at a level that was substantially g reater than had previously been demonstrated for tests currently called for in the standard or for new tests. And, also:

Review of the historical resea rch performed to provide a more adequate empirical specification of the vision standard both for drivers of passenger cars and CMV's suggests a fundament al limitationin terms of providing valid cutoff points fo r screening purposes. Numerous studies have shown that visual defici ts are rarely the primary cause of major accidents

. Typically, many factors are found to contribute. However, despite these firm findings, and without any e vidence to support its being presented, the Ketron study opined that : "Thus, no new study or synthesis of studies provided a definitive bas is for extensive changes to the current CMV visual standard. " U.S. Dept. of Transportation, Fed. Highway Admin., Visual Di sorders and Commercial Drivers (Nov., 1989) p. IV.

In Ma rch of 1992, the FHWA undertook to select a group o f monocula r drivers to be licensed for a period of three years, o r
mo re if needed, to assist in the testing and redrafting of th e vision requirements. 57 Fed. R eg. 10295 (Mar. 25, 1992). The test22

program in its final form provides waivers only to drivers with23

good dri ving records for at least three years and with vision i n
one eye meeting the existing federal standard of at least 20/4 0 (Snellen). 57 Fed. Reg. 23,370 (Jun. 3, 1992)
For the test program, the FHWA declared the followin g standards: 1. The applicant must produce proof from an optometrist or ophthalmologist certifying that the applicant's visua l deficiency

had not worsened since his last examination by the state licensing agency, and that: 2. vision in one eye is at least 20/40 (Snellen), corrected or uncorrected, 3. the ap plicant is able to perform the driving tasks t o operate a commercial motor vehicle 4. hold a valid state commercial drivers license (CDL) or a non- CDL license to operate a commercial vehicle (CMV ) issued after April, 1990 5. have three years recent experience driving a CMV without : a. license suspension or revocation b. in volvement in a reportable accident in which th e applicant received a citation for a movin g violation c. convictionfor driving a CMV while intoxicated , leavin g the scene of an accident involving a CMV ; or d. more than two convictions for any other movin g violation in a cmv. 57 Fed. Reg. 31458, 31460 (Jul. 16, 1992); see Advocates for Highway Safety , 28 F.3d at 1290-91. In September of 1992, interested parties filed in the United States Court of Appeals for the District of Columbia Circuit a petiti onfor review which challenged the waiver program. I n Advocates for Highway and Auto Safety , 28 F.3d 1288, decided i n August of 1994, the court held that the case arose under the MCSA of 198 4 which directed the Secretary of Transportation to issu e regulations establishing "minimal federal safety standards t o ensure that. . . the physical condition of operators of commercial motor vehicles is adequate to enable them to operate such vehicles safely." 49 U.S.C. § 31136(a)(3). The Court held that the F HWA had failed to place into the record evidence to establish that it had24

made a prior determination that a waiver was "consistent with the safe operation of commercial motor vehicles." Advocates forAlthough unpublished, this court feels it is relevant to 5 these proceedings. See Eighth Circuit Rule 28A(k) ("Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well.")
25 Highway and Auto Safety , 28 F.3d at 1293-94.
In September of 1994, thi s court decided the case of Breth v. United States Dep't of Transp. , 36 F.3d 1100, 1994 WL 487354 (8th Cir. 1994). The petitioner filed a petition for review of a 5 decision of the FHWA denying h is petitions for admittance into the waiver program and for an indi vidual waiver. This court held that after the decision in Advocates for Highway and Auto Safet y terminatedthe test program, the only issue was the propriety o f the Ad ministrator's denial of the petition for an individua l waiver. See 49 U.S.C. § 31136(e)(1). This court sent the matter back to the Administrator because he did not articulate his reasons for denial of the petition.
Following the District of Columbia Circuit's decision i n Advoca tes for Highway and Auto Safety , the FHWA reviewed it s evidence and concluded that, r eferring to available state evidence and its own records, it should, and did, reissue the waivers to the existing experimental group of drivers. In so doing, it continued its study program and complied with the dictate that agencie s should be engaged in a continuous process of examining thei r policies and assuring the results of the new data were correctl y takeninto account. See National Labor Relations Bd. v. Sears , Roebuck & Co. , 421 U.S. 132, 151 (1975).
In justification for the reissuance of the waivers, the agency based its requirement that dri vers participating in the study have a three-year safe driving reco rd upon studies which indicated that26

past experience could predict future performance, especially when combined with other factors su ch as geography, mileage driven, and27

con victionhistory. See 59 Fed. Reg. 50888 (1994). "Statistica l studi es", the FHWA continued, "support the proposition tha t accide nt-free performance combined with low numbers of traffi c vio lations over a three-year period is [a] reliable predictor o f continued safe performance over a similar period in the future." The agency also relied upon the medical community's determination that people with vision impairments can often compensate for that impairment over a period of ti me. Id. The FHWA concluded that "the drivin g performance of individuals participating in the visio n waiver program is better than the driving performance of al l commercial vehicle drivers collectively." FHWA Interim Monitoring Report on the Drivers of Commercial Motor Vehicles , 3 (1994).

I n February of 1995, Rauenhorst, the petitioner herein , applie dfor a waiver. In his application, he showed that he ha d
monocu lar vision, that he had driven commercial vehicles for 2 2 years, and had driven more than a million accident-free mile s. His application was denied. The Administrator reasoned that it could not co nduct an individual determination of an appropriate waive r because anyone else meeting th e criteria under which such a waiver is iss ued would thereafter be likewise entitled to a waiver

. Althougheach waiver issued under 31136(e) would be crafted s o
narrow lyas to fit only the immediate applicant, it actuall y becomes the new, lower standard upon which all subsequen t applications will be judged. Administrative Decision p 6. Th e Administrator reasoned that anyone else meeting the criteria under which a waiver was issued woul d also be entitled to a waiver under 49 U.S.C. § 31136(e), thus actually creating a new lower standard than that published in the Code of Federal Regulations.
This reasoning completely defeats any statutory provision for waivers for cause. It cements in place obsolete or inaccurat e administrative standards, even when these standards are repl aced by28

new benchmarks which are carefully drafted to assure that29

improvements and developments in the equipment of the vehicles and add itional developments as to the nature and adaptations to a di sabilitycan and do compensate successfully for certai n dis abilities. The reasoning of the Administrator's decisio n distorts the purpose of an authorization in the basic statute for the granting of waivers.

A fter the petitioner in Breth's claim was remanded to th e FHWA, the agency did not issue an administrative decision granting Breth a permanent waiver under 49 U.S.C. § 31136(e). But the FHWA did enter into a compromise settlement agreement that allowe d Breth to participate in the reconstituted waiver study program

. Respondent's Brief, 44. Given the waiver provisions of the MCS A and the mandates of the Rehabilitation Act and the ADA, the FHWA cannot now maintain that, despite this petitioner's complian ce with the limitations imposed upon Breth, the granting of a waiver of the vi sionregulation for commercial drivers should automatically b e denied in Rauenhorst's case.
To justify its position, the FHWA relies on Buck v. Unite d States Dep't of Transp. , 56 F.3d 1406 (D.C. Cir. 1995), and Ward v. Skinner , 943 F.2d 157 (1st Cir. 1991), cert. denied , 503 U.S. 959 (1992). Buckfalls into the same category as Advocates for Highway and Auto Safety

. Buckinvolved three deaf truck drivers who sought a waiver of the FHWA's minimum hearing requirement. But the agency had insufficient empirical evi dence to justify a wholesale change. Inthat case, the FHWA properly required that the petition b e denied.

In Ward , an epileptic com mercial vehicle operator who took an anti-c onvulsant medicine to control his epilepsy, challenged a refusa l to grant a waiver. The FHWA found that it could no t conclude that allowing an epileptic a license to operate a truc k30

was consistent with the public interest and the safe operation of motor vehicles.31

Certainly, an element in any safety program involving d isabled persons requires judgment call s related to the type of disability. For ex ample, a condition imposed upon the monocular drivers no w givenwaivers is that they establish that their visual acuity i s stabilized. In this respect, as in the case of deafness, this may be a not unusual condition. B ut the control of epileptic seizures by a tightly-disciplined taking of drugs may well represent a greater risk.

The gov ernment claims that applying tests or standards t o determ ine that a waiver is appropriate in a particular instanc e amounts to a rulemaking. Therefore, the government contends , granting relief under those standards should first be handle d through a formal rulemaking proceeding. But 6 years ago, in 1990 Congre ss expressed its will that the applicable standards b e redraf tedto assure that the Americans with Disabilities Ac t furnished relief for disabled persons being denied access to those activities within their capacity to perform. The administra tor can hardly justify settling the lawsuit with Breth by granting awaiver unless Breth's capacity to do commercial driving assures rea sonable safety to other highway users. Until the administrative standard for waivers to monocular drive rs is revised to reflect the current knowledge the administrator must grant separate, individuall y tailored waivers. Inevitably specific waivers must be grounded on specif ic tests or standards. Otherwise, administrators would b e granting waivers not as a matter of the employee's capacity t o function, but as a matter of the administrator's personal whim.

In this case, the Adminis trator has produced a decision which is arbitrary and capricious and otherwise not in accordance wit h law. The FHWA has failed to a rticulate a satisfactory explanation for its action in this matter. The decision not to evaluate the32

Rauenhorst application on its merits is reversed and remanded for further proceedings.

REVERSED AND REMANDED.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.