“When an administrative decision is made without consideration of relevant factors it must be set aside.”
How later courts described this case
- “When an administrative decision is made without consideration of relevant factors it must be set aside.”
Written by the judges who cited it.
The opinion
STEVENS, Circuit Judge
(concurring) .
As they are used, tires become less safe. Anyone who elects to drive at an excessive speed or on tires that have already traveled thousands of miles over a variety of road surfaces assumes some risk of tire failure. For that reason, at some point in time most car owners make a choice among four alternatives: (1) to continue driving on the old tires they then own; (2) to replace them with somewhat better used tires; (3) to replace them with retreads; or (4) to replace them with new tires.
Respondent has determined that the third alternative may not be selected unless the retread will last as long and perform just as well as a new tire. If that determination is enforced, the cost of retreads will increase and inevitably some car owners will reject the third alternative. Some will prolong their use of old tires; some will replace worn tires with others that are only slightly better; and the most cautious will pay the price of a new set of tires which may have a longer life expectancy than the used vehicle on which they will be placed. Thus, among the predictable effects of the enforcement of Standard 117 are the following: (1) some people will be driving on less safe tires; (2) some people will buy more expensive tires than they really need; and (3) since fewer retreads will be sold, new tire manufacturers will have less vigorous competition to face. In short, there is a cost to society at large associated with the enforcement of Standard 117.
On the other hand, it is no doubt true that the sale of defective retreads, or the sale of retreads that will not perform as long or as well as drivers anticipate, may pose a significant safety hazard. My problem with this case stems from the fact that there is nothing in the record to indicate that respondent assessed the magnitude of that potential hazard, or considered whether measures specifically mentioned in the statute, such as fair labeling, tire quality grading. 1
2 and limits on the age ,.of tire carcasses--Vvhich can be retreaded,* would sufficiently protect the consumer without curtailing his choice among apparently acceptablUlOter natives. 3
Although I recognize that safety is the “overriding consideration in the issuance of standards” under this Act, 4 the statute requires respondent to consider whether a proposed standard is “reasonable, practicable and appropriate” before it is prescribed. 5 In my opinion this duty has not been discharged until respondent has at least identified some of the .costs associated *357 with the proposal and determined that these costs are overridden by reasonably predicteblfijoenefits. Since no such consideration is evidenced by this record, I agree that respondent failed to perform his statutory duty.
. 15 U.S.C. § 1423 .
. 15 U.S.C. § 1426 .
. A reading of the entire Subchapter II (“Tire Safety”), 15 U.S.C. §§ 1421-1426 , plainly indicates that Congress contemplated that retreads would remain a viable consumer choice.
. Senate Rep.No.1301, 89th Cong., 2d Sess. 6 (1966), p. 2714.
. 15 U.S.C. § 1392 (f)(3).