is satisfied here. See Paccar, Inc., 573 F.2d at 644.
Chrysler's argument concerning the objectivity of FMVSS No. 210, as interpreted by NHTSA, is in actuality a challenge to the specific compliance test performed by GTL and the failure of the laboratory to record the exact placement of the body block. Chrysler maintains that the test cannot be repeated under identical conditions because the exact placement of the body block cannot be ascertained. However, GTL's failure to record the position of the pelvic body block during the compliance test does not result in the standard itself failing to satisfy the objectivity requirements set forth in Chrysler Corp. Although the Court finds the standard as interpreted to be objective, the issue raised by Chrysler does merit discussion by the Court.
The government insists that the placement of the pelvic body block during the GTL test is known. The Court disagrees. Not only was the position of the pelvic body block not recorded during the compliance test, statements in the record before the Court raise significant doubts as to the accuracy of the government's contention.
Thus, the Court concludes that the exact placement of the pelvic body block is not known.
This finding, however, is not fatal to the government's case for two reasons. First, while the exact placement of the pelvic body block may be unknown, the record does indicate that the pelvic body block was placed between two to five inches from the seat back. Therefore, during the GTL compliance test, the pelvic body block was placed in a position consistent with NHTSA's interpretation, which requires that the test be satisfied with the pelvic body block placed in any position that would reflect the position of a 50th percentile 6-year old to a 95th percentile adult male.
Because the GTL test was conducted with the pelvic body block within the permissible range, the test may be used to determine compliance.
Second, NHTSA's inability to ascertain the exact location of the pelvic body block is not fatal to the government's case for another and even more important reason -- Chrysler is not challenging the test results. Chrysler does not dispute that when tested with the pelvic body block moved forward a few inches, the subject vehicles fail to satisfy FMVSS No. 210. Indeed, Chrysler has gone so far as to explain the reason for the failure, concluding that moving the body block forward produced 15 percent more elastic stress on the seat belt webbing, which results in greater forces being applied to the anchorages. See Pl. Mem. Ex. 6, Letter from Chrysler to NHTSA of 9/28/95, at 1. Since the record reflects that the pelvic body block was in a position within the range required for compliance, and because Chrysler is not challenging the results of the GTL test, the Court concludes that the exact placement of the pelvic body block need not be ascertained in this case before noncompliance with FMVSS No. 210 can be found.
As previously stated, the Court holds that FMVSS No. 210, as interpreted by NHTSA, is objective. The Court also holds that the standard is practicable, rational and meets the needs for motor vehicle safety. Accordingly, because the Court concludes that FMVSS No. 210, as interpreted by NHTSA, satisfies the APA and the Safety Act, the Court holds that NHTSA's interpretation is likewise permissible. See S.G. Loewendick & Sons, Inc., 70 F.3d at 1294 ("We owe 'substantial deference' to the agency's interpretation, which has 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" (citing Thomas Jefferson Univ., 512 U.S. at 512)). The Court also concludes, based on the record before it, that the subject vehicles fail to comply with FMVSS No. 210 as interpreted by NHTSA.
D. Adequate Notice
The Court's conclusion that NHTSA's interpretation is permissible and that the subject vehicles do not comply with the standard does not end the inquiry in this case. It is well-settled in this circuit that agencies must provide fair notice of the conduct required or prohibited by a regulation before a violation of the regulation can occur. See General Elec. Co. v. EPA, 311 U.S. App. D.C. 360, 53 F.3d 1324 (D.C. Cir. 1995); Satellite Broadcasting Co., Inc. v. FCC, 262 U.S. App. D.C. 274, 824 F.2d 1 (D.C. Cir. 1987); Gates & Fox Co., Inc. v. OSHRC, 252 U.S. App. D.C. 332, 790 F.2d 154 (D.C. Cir. 1986). In determining whether adequate notice was provided, the Court must determine
if, by reviewing the regulations and other public statements issued by the agency, a regulated party acting in good faith would be able to identify, with "ascertainable certainty," the standards with which the agency expects parties to conform, then the agency has fairly notified a petitioner of the agency's interpretation.
General Elec. Co., 53 F.3d at 1329 (citing Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976)). Chrysler argues that NHTSA did not provide it with sufficient notice of NHTSA's now articulated interpretation of FMVSS No. 210 before Chrysler tested the subject vehicles on November 8, 1993.
In determining the adequacy of the notice, the Court first reviews the language of the standard itself. See General Elec. Co., 53 F.3d at 1329. The standard in this case is completely silent with respect to where the pelvic body block should be placed during compliance testing. Further, while paragraph S5 of FMVSS No. 210 does provide that "where a range of values is specified, the vehicle shall be able to meet the requirements at all points within the range," paragraph S5.2 makes no mention of a range of positions for placement of the pelvic body block. The language of the standard in no way provides the auto manufacturers with information from which they could conclude that in order to meet FMVSS No. 210 they must, inter alia, satisfy S5.2 with the pelvic body block in any position that would extend the lap belt to accommodate a 50th percentile 6-year-old to a 95th percentile adult male.
Having found that the standard itself would not have provided Chrysler with adequate notice of NHTSA's interpretation, the Court next examines the 1991 Federal Register notice, a public statement related to the standard which was issued by the agency. The government maintains that the 1991 Federal Register Notice provided Chrysler with sufficient notice of NHTSA's interpretation of FMVSS No. 210. In the preamble of the 1991 Federal Register notice, the following was stated:
As a general matter, when a standard does not specify a particular test condition, there is a presumption that the requirements of the standard must be met at all such test conditions. This presumption that the standard must be met at all positions of unspecified test conditions may be rebutted if the language of the standard as a whole or its purposes indicate an intention to limit unspecified test conditions to a particular condition or conditions. In the case of the strength requirements in Standard No. 210, nothing in the language of the standard suggests that the strength requirements were only to be measured with the safety belt or other vehicle features at certain adjustment positions. Indeed, the purpose of the standard is to reduce the likelihood that an anchorage will fail in a crash. To serve this purpose, the anchorage must be capable of meeting the strength requirements with the safety belt and other vehicle features at any adjustment, since those features could be at any adjustment position during a crash.