dissenting.
I respectfully dissent.
The majority states that "the only fact of any relevance to this case is that Fort has an unrepaired aneurysm, which is not in dispute." Op. at 1106. I submit there is another fact which is of paramount rele-vaney and is most definitely in dispute: namely, the scientific reliability of a thirteen-year-old conference report which, while sponsored by the Federal Highway Administration, Office of Motor Carriers, was never adopted nor promulgated into regulation by the FHWA, and which has been superceded, not onee, but twice, by the FHWA in medical advisory guidelines issued in 1998 and 1998. The conference report is the only evidence supporting the Indiana Department of Revenue's decision.
Nothing in the record establishes or even suggests that the 1988 report has any continuing scientific validity. Indeed, the report itself states:
Given the rapid and accelerating pace of change in the art and science of medicine, it is imperative that the FHWA have a mechanism for timely, even ongoing review and revision of its regulations relating to medical criteria for qualification and disqualification.
Conference Report of 1988, p. 9, Appellant's Appendix at 72. Moreover, as noted by the majority, the FHWA specifically stated in promulgating regulatory guid-ances in November, 1998 and April, 1997 that no "prior interpretation and regulatory guidance may be relied upon as authoritative insofar as they are inconsistent with the guidance published today." 58 Fed. Reg. 60, 734; 62 Fed.Reg. 16,3708
Paul Fort has been examined by qualified medical personnel who have found him medically qualified in accordance with the Federal Motor Carrier Safety Regulations. The only evidence supporting the Department's contrary conclusion is the 1988 Conference Committee Report which is of doubtful continuing probity. I would affirm the trial court's order reversing the Department's denial of licensure in all respects.
ORDER
This Court having heretofore handed down its opinion in this appeal on December 10, 2001, which opinion was marked Memorandum Decision, Not for Publication;
Comes now the Appellant, by counsel, and files herein Motion to Publish Memorandum Decision, alleging therein, inter alia, that said Memorandum Decision involves legal and factual issues of substantial public importance and that a published opinion will clarify those important issues for the Department of Revenue and for the public; that the issues presented in this case are likely to arise in the future and that no decision has previously addressed the issue of the use to the Conference Report of 1988 and therefore prays this Court to publish its decision in this appeal;
The Court having examined said Motion and being duly advised, now finds that the same should be granted.
IT IS THEREFORE ORDERED that the Appellant's Motion to Publish memorandum Decision is granted and this Court's opinion heretofore handed down in *1109this cause on December 10, 2001, marked Memorandum Decision, Not for Publication, is now ordered published;
. The majority states that neither of the later medical guidances contradicts the 1988 report. Op. at --, n. 7. In response, I would note that the FHWA stated in its 1993 regulatory guidance that it was consolidating "previously issued interpretations and regulatory guidance materials...." 58 Fed.Reg. 60734. Moreover, since as previously noted the FHWA never adopted the 1988 report as an interpretation or regulatory guidance, there was no need to expressly contradict the report in the 1993 and 1997 regulatory guidances.