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.

David Rauenhorst seeks review of the Federal Highway

Administration's (FHWA) decision to deny his request for a waiver

from the federal licensing standards for commercial truck drivers.
2

We reverse the decision of the FHWA and direct the FHWA to consider
 In 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 his

application for a waiver of the federal regulation which requires

binocular vision in order to qualify for a commercial driver's

license. Waivers are permitted 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." 49

U.S.C. § 31136(e)(1).

 The current relevant federal regulation, which has been in

existence since 1937 in some form, denies commercial licenses for

truckers who lack 20/40 (Snellen) vision in each eye with or

without corrective lenses. 49 C.F.R. § 391.41(b)(10) (emphasis

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 under 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 requisite

vision in both eyes.
4

 In 1973, Congress passed the Rehabilitation Act to prevent

discrimination against the disabled, including a provision to
 In 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 this

section to preclude discrimination in "any program or activity

conducted by any Executive agency." Id. No "otherwise qualified

individual with handicaps" would be subject to discrimination

solely because of that handicap. Id. To answer the question of

whether an individual is "otherwise qualified", the trier of fact

will have to conduct an individualized inquiry in most cases.

School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 287

(1987).

 In accordance with the 1978 amendment to 29 U.S.C. § 794(a),

the Department of Transportation (DOT) conducted a review of

monocular drivers in 1982. This study indicated that monocular

drivers should be permitted to receive commercial licenses as long

as they drove within their limitations. The DOT, however, did not

commence a formal process to amend the regulation.

 In 1984, Congress passed the Motor Carrier Safety Act (MCSA)

in order to federalize traffic safety laws and to curtail the

development of inconsistent safety regulations in neighboring

states. While some states had allowed monocular drivers to operate

commercial vehicles under state law, the federalization process

began to limit job opportunities for these individuals due to 49

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, along with

stepped-up enforcement at both the State and Federal levels,

exposed these drivers to disqualification determinations . . . .

Congress has insisted on uniform standards consistent with Federal
6

regulations issued pursuant to the MCSA of 1984."). This Act

contained the provisions authorizing the Secretary of
 The 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

Transportation to waive a regulation if it was in the public

interest and consistent with safety. 49 U.S.C. § 31136(e). The

Senate Committee on Commerce, Science, and Transportation cautioned

that the waiver provision "should be used with extreme care and

should only be used if the Secretary has developed sufficient

information to provide adequate assurance that such waiver will not

adversely affect the safe operation of commercial motor vehicles."

S. Rep. No. 424, 98th Cong., 2nd Sess. 8 (1994).

In 1990, the Americans with Disabilities Act (ADA) was signed

into law in order to "provide a clear and comprehensive national

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 on

the bill that within two years of the effective date of the ADA,

the DOT would review its regulations regarding qualifications for

drivers of certain vehicle classifications. H.R. Rep. No. 485,

101st Cong., 2nd Sess., pt. 2, at 57 (1990). Congress expected

that the DOT would make the necessary changes to its regulations

in order to end unwarranted discrimination against the disabled.3
8

Id.

The FHWA initiated an advance notice of proposed rulemaking on
9

possible changes to its vision requirements. Concurrently, the

FHWA contracted with Ketron, Inc. to "study the relationship

between visual disorders and commercial vehicle motor safety." 57

Fed. Reg. 23370 (Jun. 3, 1992).

 In order to determine what the safety standards for truck

drivers should be, the FHWA decided to conduct a study in which

they could compare experienced, visually-challenged drivers versus

drivers who met the federal standards. On March 25, 1992, the FHWA

published a notice of intent to issue waivers for disabled drivers

who met state safety standards but not federal regulations,

pursuant to the 49 U.S.C. § 31136(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 in

furthering the employment of qualified individuals with

disabilities and the strict nature of the qualifications of the

waivers would allow the FHWA to make sure they were consistent with

the safe operation of motor vehicles. 57 Fed. Reg. 23370, 23371

(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 experienced commercial drivers with clean

safety records. Petitioner never applied to be a member of this

test group. He maintains that he was not aware of this program at

the time. The deadline for applications was extended from

September 21, 1992 until December 31, 1992. Therefore, a driver

had nine months between the notice of intent for the commencement

of the waiver program and the application deadline. Over 3,700

applications were received and the FHWA granted waivers to 2,411

drivers. 59 Fed. Reg. 50887 (Oct. 6, 1994).

The United States Court of Appeals for the District of

Columbia Circuit vacated the waiver program and remanded the rule

creating it in Advocates for Highway and Auto Safety v. Federal
10

Highway Admin., 28 F. 3d 1288 (D.C. Cir. 1994). The court

reasoned
 The 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 to

provide sufficient foundation upon which to propose a satisfactory

vision standard for drivers, it was arbitrary and capricious for

the FHWA to propose a waiver program as the agency could not

satisfactorily determine whether the waiver would be contrary to

public interest and consistent with the safe operation of

commercial vehicles. Id. at 1294. See 49 U.S.C. § 31136(e).

However, those who had already been issued waivers were

"grandfathered" and continued to drive commercial vehicles after

the court's decision. 59 Fed. Reg. 50887, 50889 (Oct. 6, 1994).

 On remand from the United States Court of Appeals for the

District of Columbia Circuit, the FHWA invited additional public

comment and conducted a thorough review of the evidence. In an

October 6, 1994 Notice of Determination, the FHWA announced that

there was additional evidence to justify the issuance of waivers to

experienced monocular drivers with clean safety records. Both

information provided by the states and the FHWA's waiver study had

demonstrated that the safety performance of monocular drivers

actually exceeded the safety performance of drivers as a whole. 59

Fed. Reg. 50887, 50890 (Oct. 6, 1994). The statistics confirmed

4

that the granting of the waivers was consistent with public safety

and that the public interest of making sure that commercial drivers

were physically capable to drive these vehicles was met. Id. at

50891. After receiving comments from almost twenty interested

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 and for over 1 million miles without an

accident. But on May 24, 1995, the FHWA Administrator denied the

petitioner's request. The Administrator reasoned that even if a

waiver was crafted so as to fit only the petitioner, the precedent

created by this waiver would be the destruction of the relevant

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.

Furthermore, the Administrator felt that a finding that the

petitioner had many years of accident-free driving was not enough

for the Administrator to determine if the public interest was being

protected due to Congress' historical concern with driver safety.

In essence, the Administrator believed that he could not justify

the withdrawal of a 60 year old federal regulation based on one

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 legally

operate a commercial vehicle.

II. STANDARD OF REVIEW

 Under the Administrative Procedure Act, an agency action 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 at 1293.

The scope of review is "narrow and a court is not to substitute its

judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of

United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983); Atlantic Tele-Network, Inc. v. Federal Communications

Comm'n, 59 F.3d 1384, 1388 (D.C. Cir. 1995) (stating that review is

"highly deferential"); Mt. Graham Red Squirrel v. Espy, 986 F.2d
14

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

Protection Agency, 994 F.2d 1354, 1356 (8th Cir. 1993) (citing

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416
15

(1971) ) ("As long as the [agency] considered all of the relevant

factors and its decision contains no clear error of judgment, we

will not substitute our judgment."). The agency, however, "must

examine the relevant data and articulate a satisfactory explanation

for its action." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43; see

Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419

U.S. 281, 285 (1974) ("The agency must articulate a rational

connection between the facts found and the choice made.") (citation

omitted).

III. DISCUSSION

 Our key question is: does the history of known factors and

lapse of time reflect, on the part of the FHWA, an abuse of

discretion, or arbitrary and capricious action not in accordance

with law?

 By the Motor Carrier Act of 1935, 49 Stat. 543, 546-7 (1935),

Congress authorized federal regulation of motor carrier safety.

Under this original act, the Secretary of Transportation "may

prescribe requirements for . . . (1) qualifications of employees of

a motor carrier." 49 U.S.C. § 31502(b). In 1966, the Department of

Transportation inherited the regulatory authority from the

Interstate Commerce Commission (ICC).

 In 1937, the ICC issued its initial vision standard which

required "[g]ood eyesight in both eyes either without glasses or by

correction with glasses." 49 C.F.R. 192.3 (1938). Since the 1930s,

the vision standard has been made more stringent. In 1939, the

standard was made more specific, requiring 20/40 (Snellen) in one

eye and 20/100 (Snellen) in the other. 49 C.F.R. § 192.3(b) (Supp.

1939). The standard was amended in 1952 to require 20/40 (Snellen)
16

vision in each eye, corrected or uncorrected. 17 Fed. Reg. 4424

(1952). "Field of vision" requirements and the ability to

distinguish colors were added in 1964. See 57 Fed. Reg. 6793,
17

6794 (Feb. 28, 1992).

 In 1970, the current vision standard was adopted "in light of

discussions 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 at least 20/40 (Snellen) in

each eye without corrective lenses or visual acuity

separately corrected 20/40 (Snellen) or better with

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 the

horizontal Meridian in each eye, and the ability to

recognize the colors of traffic signals and devices

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 "otherwise

qualified persons." In 1978, Congress passed the Rehabilitation

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

subjected to discrimination ... under any program or

activity conducted by any Executive Agency. 29 U.S.C. §

794(a).

The 1978 amendment also required each executive agency to

"promulgate such regulations as may be necessary to carry out"

section 504's requirements. The DOT initially responded by

commissioning Bartow Associates to conduct a comprehensive review

of the evidence supporting vision standards applicable to monocular

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 monocular

driving and safety had been based upon "small sample size and
18

dubious methodologies." Id. at 1. "Potentially spurious

relationships, small samples, lack of controls, and the potential
19

dominance of other variables reduces the validity of much of the

past research . . . In several studies, including one of 14,000

drivers, the most consistent result was a failure to find a direct

relationship between poor static visual acuity performance and high

accident rates for young and middle-aged drivers." Id. at 29. The

Bartow Study further found that "recent studies that have

correlated accident involvement measures with measures of visual

field have consistently failed [to obtain] any significant

relationships." Id. at 20.

 According to the Bartow Study, much previous research had been

flawed, because it failed to recognize that disabled drivers learn

to drive within their limits. Monocular drivers learn effectively

to use visual cues which do not depend upon binocular vision.

Unfortunately, many previous studies used binocular drivers with

one eye closed as subjects. Thus, the drivers used in these flawed

studies were actually learning to drive with a single good eye

during the experiment itself. Other studies used subjects who had

recently lost a single eye and, therefore, had not adjusted to

their disability. The Bartow Study concluded that the critical

issue in safe driving is the driver's ability to recognize the

limits of his capabilities and to drive within those capabilities.

 In 1990, Congress, seeking to eliminate continued

discrimination against persons with physical and mental

disabilities, passed the Americans with Disabilities Act. By H.R.

Rep. No. 485, 101st Cong., 2nd Sess., pt. 2, at 57 (1990), the

agency was directed to "make any necessary changes within the two

year period to bring such regulations into compliance with the

law." As of this writing, the regulations have not been corrected.

 In 1992, the FHWA employed Ketron, Inc., to study the

relationship between visual disorders and commercial motor vehicle
20

safety.
21

The Ketron study found that:

A review and critical evaluation were conducted on the most

significant scientific research directed at investigating the

relationship between visual performance and driving for

passenger, commercial, and aged/visually impaired motor

vehicle operators. Many studies relating visual test

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 sensitivity,

glare sensitivity, low-light visual acuity, and dynamic visual

acuity. In general agreement with studies reported prior to

1970, these newer studies were able to demonstrate only weak

relationships between measures of vision and correlates of

driver safety. No study involving purely visual measures

reported an empirical ability to identify unsafe drivers at a

level that was substantially greater than had previously been

demonstrated for tests currently called for in the standard or

for new tests.

And, also:

Review of the historical research performed to provide a more

adequate empirical specification of the vision standard both

for drivers of passenger cars and CMV's suggests a fundamental

limitation in terms of providing valid cutoff points for

screening purposes. Numerous studies have shown that visual

deficits are rarely the primary cause of major accidents.

Typically, many factors are found to contribute.

 However, despite these firm findings, and without any evidence

to support its being presented, the Ketron study opined that:

"Thus, no new study or synthesis of studies provided a definitive

basis for extensive changes to the current CMV visual standard."

U.S. Dept. of Transportation, Fed. Highway Admin., Visual Disorders

and Commercial Drivers (Nov., 1989) p. IV.

 In March of 1992, the FHWA undertook to select a group of

monocular drivers to be licensed for a period of three years, or

more if needed, to assist in the testing and redrafting of the

vision requirements. 57 Fed. Reg. 10295 (Mar. 25, 1992). The test
22

program in its final form provides waivers only to drivers with
23

good driving records for at least three years and with vision in

one eye meeting the existing federal standard of at least 20/40

(Snellen). 57 Fed. Reg. 23,370 (Jun. 3, 1992)

 For the test program, the FHWA declared the following

standards:

1. The applicant must produce proof from an optometrist or

ophthalmologist certifying that the applicant's visual

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 applicant is able to perform the driving tasks to

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. involvement in a reportable accident in which the

applicant received a citation for a moving

violation

c. conviction for driving a CMV while intoxicated,

leaving the scene of an accident involving a CMV;

or

d. more than two convictions for any other moving

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

petition for review which challenged the waiver program. In

Advocates for Highway and Auto Safety, 28 F.3d 1288, decided in

August of 1994, the court held that the case arose under the MCSA

of 1984 which directed the Secretary of Transportation to issue

regulations establishing "minimal federal safety standards to

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 FHWA had

failed to place into the record evidence to establish that it had
24

made a prior determination that a waiver was "consistent with the

safe operation of commercial motor vehicles." Advocates for
 Although 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, this 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 his petitions for admittance into the

waiver program and for an individual waiver. This court held that

after the decision in Advocates for Highway and Auto Safety

terminated the test program, the only issue was the propriety of

the Administrator's denial of the petition for an individual

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 in

Advocates for Highway and Auto Safety, the FHWA reviewed its

evidence and concluded that, referring 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 agencies

should be engaged in a continuous process of examining their

policies and assuring the results of the new data were correctly

taken into 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 drivers participating in the study have

a three-year safe driving record upon studies which indicated that
26

past experience could predict future performance, especially when

combined with other factors such as geography, mileage driven, and
27

conviction history. See 59 Fed. Reg. 50888 (1994). "Statistical

studies", the FHWA continued, "support the proposition that

accident-free performance combined with low numbers of traffic

violations over a three-year period is [a] reliable predictor of

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 time. Id. The FHWA concluded that "the

driving performance of individuals participating in the vision

waiver program is better than the driving performance of all

commercial vehicle drivers collectively." FHWA Interim Monitoring

Report on the Drivers of Commercial Motor Vehicles, 3 (1994).

 In February of 1995, Rauenhorst, the petitioner herein,

applied for a waiver. In his application, he showed that he had

monocular vision, that he had driven commercial vehicles for 22

years, and had driven more than a million accident-free miles. His

application was denied. The Administrator reasoned that it could

not conduct an individual determination of an appropriate waiver

because anyone else meeting the criteria under which such a waiver

is issued would thereafter be likewise entitled to a waiver.

Although each waiver issued under 31136(e) would be crafted so

narrowly as to fit only the immediate applicant, it actually

becomes the new, lower standard upon which all subsequent

applications will be judged. Administrative Decision p 6. The

Administrator reasoned that anyone else meeting the criteria under

which a waiver was issued would 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 inaccurate

administrative standards, even when these standards are replaced by
28

new benchmarks which are carefully drafted to assure that
29

improvements and developments in the equipment of the vehicles and

additional developments as to the nature and adaptations to a

disability can and do compensate successfully for certain

disabilities. The reasoning of the Administrator's decision

distorts the purpose of an authorization in the basic statute for

the granting of waivers.

 After the petitioner in Breth's claim was remanded to the

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 allowed Breth

to participate in the reconstituted waiver study program.

Respondent's Brief, 44. Given the waiver provisions of the MCSA

and the mandates of the Rehabilitation Act and the ADA, the FHWA

cannot now maintain that, despite this petitioner's compliance with

the limitations imposed upon Breth, the granting of a waiver of the

vision regulation for commercial drivers should automatically be

denied in Rauenhorst's case.

 To justify its position, the FHWA relies on Buck v. United

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). Buck falls into the same category as Advocates for Highway

and Auto Safety. Buck involved three deaf truck drivers who sought

a waiver of the FHWA's minimum hearing requirement. But the agency

had insufficient empirical evidence to justify a wholesale change.

In that case, the FHWA properly required that the petition be

denied.

 In Ward, an epileptic commercial vehicle operator who took an

anti-convulsant medicine to control his epilepsy, challenged a

refusal to grant a waiver. The FHWA found that it could not

conclude that allowing an epileptic a license to operate a truck
30

was consistent with the public interest and the safe operation of

motor vehicles.
31

 Certainly, an element in any safety program involving disabled

persons requires judgment calls related to the type of disability.

For example, a condition imposed upon the monocular drivers now

given waivers is that they establish that their visual acuity is

stabilized. In this respect, as in the case of deafness, this may

be a not unusual condition. But the control of epileptic seizures

by a tightly-disciplined taking of drugs may well represent a

greater risk.

 The government claims that applying tests or standards to

determine that a waiver is appropriate in a particular instance

amounts to a rulemaking. Therefore, the government contends,

granting relief under those standards should first be handled

through a formal rulemaking proceeding. But 6 years ago, in 1990

Congress expressed its will that the applicable standards be

redrafted to assure that the Americans with Disabilities Act

furnished relief for disabled persons being denied access to those

activities within their capacity to perform. The administrator can

hardly justify settling the lawsuit with Breth by granting a waiver

unless Breth's capacity to do commercial driving assures reasonable

safety to other highway users. Until the administrative standard

for waivers to monocular drivers is revised to reflect the current

knowledge the administrator must grant separate, individually

tailored waivers. Inevitably specific waivers must be grounded on

specific tests or standards. Otherwise, administrators would be

granting waivers not as a matter of the employee's capacity to

function, but as a matter of the administrator's personal whim.

 In this case, the Administrator has produced a decision which

is arbitrary and capricious and otherwise not in accordance with

law. The FHWA has failed to articulate a satisfactory explanation

for its action in this matter. The decision not to evaluate the
32

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.