Interpretation ID: nht91-1.11

DATE: January 4, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Edward R. Heussner -- Consultant, Comp U Tence

TITLE: None

ATTACHMT: Attached to letter dated 8-16-90 to Paul Jackson Rice from Edward R. Heussner (OCC 5107)

TEXT:

This responds to your letter asking for this agency's interpretation of Federal Motor Vehicle Safety Standard No. 219 Windshield Zone Intrusion (49 CFR S571.219). You posed two questions; the first asked about the meaning of "penetration" for the area of the windshield below the "protected zone," and the second asked whether engineering judgment in lieu of crash testing, as described in S5 of Standard No. 219 would be "acceptable to the agency." Your questions are responded to below.

In your letter, you noted that section S5 provides that, when a specified crash test is conducted, "no such part of a vehicle (certain parts of the vehicle outside the occupant compartment) shall penetrate the inner surface of that portion of the windshield, within the (Daylight Opening), below the protected zone defined in S6.2. (Emphasis added.) You asked whether, in order for "penetration" to have occurred, does some vehicle component have to go through the windshield or does obscuring of the glass or glass-plastic constitute a penetration.

It is our opinion that, in order for penetration of the inner surface of the windshield to occur, some vehicle component from outside the occupant compartment must break through the windshield. According to Webster's Ninth New Collegiate Dictionary (published by Merriam-Webster Inc.), "penetrate" means: to pass into or through, to enter by overcoming resistance: PIERCE, to gain entrance to. Thus, under section S5, when the specified test is conducted, certain vehicle components from outside the occupant compartment must not pass through or pierce the inner surface of the windshield. If the windshield glass or glass-plastic were merely pushed inward by such a vehicle component, without the component breaking through the glass or glass-plastic, the inner surface of the windshield would not have been penetrated.

Regarding your second question asking whether engineering judgment in lieu of crash testing, as described in standard No. 219 would be "acceptable to the agency," please note the following. Each of this agency's safety standards specifies the test conditions and procedures that this agency will use to evaluate the performance of the vehicle or equipment being tested for compliance with the particular safety standard. NHTSA precisely follows each of the specified test procedures and conditions when conducting its compliance testing. However, the Safety Act does not require a manufacturer to test its products only in the manner specified in the relevant safety standard, or even to test the products at all. A manufacturer may choose any means of evaluating its products to determine whether the vehicle or item of equipment complies with the requirements of the safety standards, provided, however, that the manufacturer assures

that the vehicle or equipment will comply with the safety standards when tested by the agency according to the procedures specified in the standard.

If the agency testing shows an apparent noncompliance exists with a vehicle or item of equipment, the manufacturer is asked to show the basis for its certification that the vehicle or equipment complies with the relevant safety standard or standards. If in fact there is a noncompliance, the manufacturer is subject to civil penalties under the Safety Act unless it can establish that it exercised due care, in the design and manufacture of the product and in the checks (through actual testing, computer simulation, engineering analyses, or other means) to ensure compliance, but nevertheless did not have reason to know that the vehicle or item of equipment did not in fact comply with the safety standards.

Please note that this agency has long said that it is unable to judge what efforts would constitute "due care" in advance of the actual circumstances in which a noncompliance occurs. What constitutes "due care" in a particular case depends on all relevant facts, including such things as the limitations of current technology, the availability of test equipment, the size of the manufacturer, and, above all, the diligence exercised by the manufacturer.

You should also note that, while the exercise of "due care" may relieve a manufacturer of liability for civil penalties in connection with the manufacture and sale of noncomplying vehicles or equipment, it does not relieve a manufacturer of the responsibility to notify purchasers of the noncompliance and remedy the noncompliance without charge to the purchasers, if either the manufacturer or this agency determines that vehicles or items of equipment do not comply with all applicable safety standards.

I hope this explanation is helpful. Please contact Dorothy Nakama of my staff (202) 366-2992 if you have any further questions or would like some additional information on this subject.