                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-3739
                                  ___________

John C. Anderson,                    *
                                     *
             Petitioner,             *
                                     *
      v.                             *    On Petition for Review from the
                                     *    United States Department of
United States Department of          *    Transportation, Federal Highway
Transportation, Federal Highway      *    Administration.
Administration,                      *
                                     *
             Respondent.             *
                                ___________

                            Submitted: March 17, 2000

                                 Filed: May 1, 2000
                                  ___________

Before RICHARD S. ARNOLD, LAY and BEAM, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

      The Federal Highway Administration (FHWA) has vision requirements that
apply to drivers of commercial motor vehicles. John C. Anderson sought a waiver of
these requirements and the FHWA denied his waiver petition. Anderson appeals, and
we affirm.
I.    BACKGROUND

       Anderson has driven commercial motor vehicles for twenty-four years. He has
been employed by NationsWay Transport Services, Inc., since 1983. On July 23,
1997, Anderson suffered a retinal detachment in his left eye that resulted in loss of
vision in that eye. As a result, Anderson no longer meets the federal vision standards
that would allow him to drive in interstate commerce. See 49 C.F.R. § 391.41.

       In spite of the fact that he has vision in only one eye, Anderson wishes to resume
working as a commercial vehicle driver. He sought and obtained a vision waiver from
the State of Minnesota that allows him to drive in intrastate commerce, although he is
not currently working as a driver. He also sought a waiver from the FHWA . The
FHWA denied Anderson's request. The agency determined Anderson did not qualify
for a waiver because he does not have three years of driving experience with his vision
impairment.

II.   DISCUSSION

        Under the Administrative Procedure Act, we may set aside an agency action if
it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law." 5 U.S.C. § 706(2)(A); see also Rauenhorst v. Department of Transp., 95 F.3d
715, 718 (8th Cir. 1996). "The scope of review is 'narrow and a court is not to
substitute its judgment for that of the agency.'" Rauenhorst, 95 F.3d at 718-719
(quoting Motor Vehicle Mfrs. Ass'n of United States v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983)). Nevertheless, the agency must explain the "'rational
connection between the facts found and the choice made.'" Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974) (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962)).




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       The FHWA may grant a waiver from the vision requirements if the effect of the
waiver would likely "achieve a level of safety that is equivalent to, or greater than, the
level of safety that would be obtained in the absence of the waiver." 49 U.S.C. §
31315; see also 49 U.S.C. § 31136(e). Anderson contends the FHWA did not review
his waiver petition on the merits to determine if his driving would achieve a level of
safety equivalent to non-waived drivers and thus, the FHWA's decision to deny him a
waiver was arbitrary, capricious, an abuse of discretion, and not in accordance with the
law. He also asserts the FHWA's requirement that he have three years of driving
experience with his vision impairment is arbitrary, capricious, an abuse of discretion,
and not in accordance with the law. We disagree.

      In Rauenhorst, we held that "[u]ntil the administrative standard for waivers to
monocular drivers is revised to reflect the current knowledge[,] the administrator must
grant separate, individually tailored waivers." 95 F.3d at 723. Anderson contends the
FHWA did not look at the merits of his application as required by Rauenhorst because
it denied his vision waiver solely on the basis of his lack of driving experience with
monocular vision. However, Rauenhorst also requires that the specific waivers be
grounded on specific tests or standards so that an administrator cannot grant or deny
a waiver on a whim. See id.

       In its decision, the FHWA stated that three years of driving with the impairment
are required before a waiver can be granted. This is the type of specific standard
required by Rauenhorst. Anderson clearly fails to meet this criterion because he filed
his petition for waiver in March 1998, less than a year after he lost his vision.
Furthermore, at the time Anderson applied for the waiver, he had extremely limited
experience driving with his vision impairment because he was not working as a driver.
Thus, our review of the record indicates that the FHWA's review was on the merits.

       Anderson further asserts the FHWA's three-year requirement is arbitrary,
capricious, an abuse of discretion, and not in accordance with the law. Although we

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recognize that the choice of any specific length of time is somewhat arbitrary, we find
the FHWA based its choice on several concrete factors.

       First, it takes time for a person with a vision deficiency to otherwise compensate
for that deficiency. Estimates on the amount of time needed to adjust range from
several months to a year, although there is no consensus in the medical community on
the exact amount of time needed. See 59 Fed. Reg. 50888 (1994). Second, it is clear
that the best predictor of safety and future performance of a driver is his past record of
accidents and violations. See 59 Fed. Reg. 50888-90 (1994); see also Grace E. Bates
& Jerzy Neyman, Contributions to the Theory of Accident Proneness: An Optimistic
Model of the Correlation Between Light and Severe Accidents (1952); State of
California Department of Motor Vehicles, The 1964 California Driver Record Study:
The Prediction of Accident Involvement from Driver Record and Biographical Data
(1967). It is for this reason the FHWA requires an operating record long enough to
demonstrate that Anderson can drive safely with his vision impairment. The longer the
driving record for a particular driver, the easier it is to predict that driver's future
driving safety. Third and finally, the three-year standard corresponds to the longest
period of time that states uniformly keep driving records. The fact that driving safety
improves and is more easily measured over time is rationally connected to the choice
the FHWA made to require three years of driving experience with monocular vision.

III.   CONCLUSION

       Thus, we find that both the FHWA's denial of Anderson's waiver petition and the
three-year requirement of driving with a vision impairment are in accord with the law
and are not arbitrary, capricious, or an abuse of discretion. Accordingly, we affirm.




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A true copy.

      Attest:

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




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