576
Opinion of the Court
In sum, the regulatory record made it plain that the waiver regulation did not rest on any final, factual conclusion that the waiver scheme would be conducive to public safety in the manner of the general acuity standards and did not purport to modify the substantive content of the general acuity regulation in any way. The waiver program was simply an experiment with safety, however well intended, resting on a hypothesis whose confirmation or refutation in practice would provide a factual basis for reconsidering the existing standards.21
21 Though irrelevant to the disposition of this case, it is hardly surprising that two years after the events here the waiver regulations were struck down for failure of the FHWA to support its formulaic finding of consistency with public safety. See Advocates for Highway and Auto Safety v. FHWA, 28 F. 3d 1288, 1289 (CADC 1994). On remand, the agency "re-validated" the waivers it had already issued, based in part on evidence relating to the safety of drivers in the program that had not been included in the record before the District of Columbia Circuit. See 59 Fed. Reg. 50887, 50889-50890 (1994); id., at 59386, 59389. In the meantime the FHWA has apparently continued to want things both ways. It has said publicly, based on a review of the data it collected from the waiver program itself, that the drivers who obtained such waivers have performed better as a class than those who satisfied the regulation. See id., at 50887, 50890. It has also recently noted that its medical panel has recommended "leaving the visual acuity standard unchanged," see 64 Fed. Reg. 16518 (1999) (citing F. Berson, M. Kuperwaser, L. Aiello, and J. Rosenberg, Visual Requirements and Commercial Drivers, Oct. 16, 1998), a recommendation which the FHWA has concluded supports its "view that the present standard is reasonable and necessary as a general standard to ensure highway safety." 64 Fed. Reg. 16518 (1999).
The waiver program in which Kirkingburg participated expired on March 31, 1996, at which point the FHWA allowed all still-active participants to continue to operate in interstate commerce, provided they continued to meet certain medical and other requirements. See 61 Fed. Reg. 13338, 13345 (1996); 49 CFR § 391.64 (1998). The FHWA justified this decision based on the safety record of participants in the original waiver program. See 61 Fed. Reg. 13338, 13345 (1996). In the wake of a 1996 decision from the United States Court of Appeals for the Eighth Circuit requiring the FHWA to justify the exclusion of further participants in the waiver program, see Rauenhorst v. United States Dept. of Transporta-
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