                           _______________

                             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.



     *
      The HONORABLE BRUCE M. VAN SICKLE, Senior United States
     District Judge for the District of North Dakota,
     sitting by designation.
We reverse the decision of the FHWA and direct the FHWA to consider




                                2
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.1     49 C.F.R. § 391.41(b)(10) (emphasis
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.



     1
      In 1862, a Dutch ophthalmologist, Snellen, devised the
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
     In 1973, Congress passed the Rehabilitation Act to prevent
discrimination against the disabled, including a provision to




                                4
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).2    See 59 Fed. Reg. 50887, 50888 (Oct. 6,
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


     2
      In fact, more than 5,000 "unqualified" drivers were removed
from interstate driving positions by the 1984 MCSA and other
enforcement measures. 59 Fed. Reg. 50887, 50888 (Oct. 6, 1994).

                                    5
regulations issued pursuant to the MCSA of 1984."). This Act
contained the provisions authorizing the Secretary of




                                6
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


     3
      The full relevant statement was as follows:

     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
Id.


      The FHWA initiated an advance notice of proposed rulemaking on




                                 8
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

                                         9
Highway Admin., 28 F. 3d 1288 (D.C. Cir. 1994).   The court
reasoned




                            10
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).4 The statistics confirmed
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).



     4
      The FHWA had revoked the waivers of 201 drivers of those
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
    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).




                               12
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


                                      13
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




                               14
(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)


                                        15
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,




                                  16
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


                                   17
dubious   methodologies."   Id.    at   1.   "Potentially   spurious
relationships, small samples, lack of controls, and the potential




                                  18
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

                                        19
safety.




          20
     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

                                21
program in its final form provides waivers only to drivers with




                               22
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

                                  23
made a prior determination that a waiver was "consistent with the
safe operation of commercial motor vehicles." Advocates for




                               24
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).5    The petitioner filed a petition for review of a
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


     5
      Although unpublished, this court feels it is relevant to
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
past experience could predict future performance, especially when
combined with other factors such as geography, mileage driven, and




                               26
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

                                       27
new benchmarks which are carefully drafted to assure that




                               28
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

                                     29
was consistent with the public interest and the safe operation of
motor vehicles.




                               30
       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


                                      31
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.




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