Interpretation ID: 86-4.38

TYPE: INTERPRETATION-NHTSA

DATE: 08/08/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Robert G. Russell

TITLE: FMVSS INTERPRETATION

TEXT:

Robert G. Russell, Acting Director Division of School Traffic Safety and Emergency Planning Indiana Department of Education Room 229 Indianapolis, IN 46204-2798

Dear Mr. Russell:

This responds to your letter asking about NHTSA's regulations for school buses and the relationship between State and Federal school bus definitions and regulations. I regret the delay in responding to your letter.

According to your letter, Indiana distinguishes "special purpose buses from "school buses." Under your State's law, "school buses" are defined as motor vehicles, other than special purpose buses, designed for more than 10 passengers and used to transport school children. "Special purpose buses" are motor vehicles accommodating more than six passenger; used by schools to transport handicapped students to special programs, or school children and supervisors to extracurricular school activities. Special purpose buses are prohibited from being used on a regular basis to carry students between their residences and schools and are not required to meet any State identification, construction or equipment standards for school buses.

You asked whether Indiana's definitions of "school buses" and "special purpose buses" conflict with our school bus definition, and how Federal law might preempt State law in this matter.

To begin, it is important to keep in mind how State and Federal school bus definitions and regulations differ in their application. She standards we have issued under the National Traffic and Motor Vehicle Safety Act apply to vehicles according to our motor vehicle type classifications regardless of the classifications used by the various states. Our safety standards apply to the manufacture and sale of new motor vehicles, including school buses. Our regulatory definitions, set forth in 49 CFR Part 571.3, define a "school bus" as a motor vehicle designed to carry 10 or more passengers plus a driver, sold for purpose; that include carrying students to or from school or related events. Our definitions do not include one for "special purpose buses." A vehicle that is designed to carry 10 or more passengers and meets the Indiana definition of "special purpose buses" is considered a "school bus" under Federal law since it is intended for pupil transportation, not-withstanding its exclusion from Indiana's school bus definition.

Therefore, each person selling l0-passenger or larger "special purpose buses" is required under the Vehicle Safety Act to ensure that those vehicles are certified school buses. Violation of this Federal requirement by sellers of new school buses is punishable by civil penalties of up to 81,000. The requirement applies to new school bus sellers regardless of whether a vehicle is considered a "school bus" under the laws of a particular State.

Further, the preemption provisions in section 103(d) of the Vehicle Safety Act are not limited in their effect by the fact that this agency's classification of a vehicle differs from that of one or more of the States. Regardless of how Indiana classifies a vehicle, Indiana may not apply to that vehicle standards which cover the same aspects of performance as Federal standards but are not identical to the Federal standards. The only exception is a State may set higher standards of performance for vehicles procured for the State's own use.

A State's definition of a "school bus" is, of course, determinative of the application of State requirements to the operation of school buses, such as inspection, maintenance and identification requirements. appears that the provision in Indiana's definitions that special purpose buses are not "school buses" excludes those vehicles from the application of Indiana' school bus operational requirement. While Indiana is responsible for determining requirements for vehicles operating in that State, NHTSA recommends that each State consider carefully setting operational requirements for all vehicles used to carry school children. Recommendations for specific aspects of States' pupil transportation programs have been issued in Highway Safety Program Standard No. 17, Pupil Transportation Safety (copy enclosed), which was promulgated by NHTSA under the Highway Safety Act in connection with the Federal funding of State highway safety programs. While not required to do so, individual States have chosen to adopt some or all of Program Standard No. 17's recommendations and Indiana might want to consider then for their special purpose buses.

You asked whether schools are permitted at any time under Federal law to transport school children to or from school related activities in a vehicle other than a school bus. Strictly speaking, the answer is yes, for two reasons. This is because, first, the requirements of the Vehicle Safety Act apply to new school bus manufacturers and sellers, and not to school bus users. Therefore, we cannot prohibit schools from using noncomplying buses to transport children although we do prohibit the manufacture and sale of new noncomplying school buses. Second, manufacturers and dealers are required to sell complying school buses only if they sell new buses for pupil transportation purposes. Other types of vehicles, for example "multi-purpose passenger vehicles" (vehicles constructed on truck chassis which carry nine or fewer passengers), may be sold to carry school children to school or school-related events.

I hope this information is helpful. Please contact my office if you have any further questions.

Sincerely,

Erika Z. Jones Chief Counsel

Enclosure

April 10, 1986

Chief Counsel Office Erika, Z. Jones NHTSA Room 5219 400 7th Street, S.W. Washington, D.C. 20590

Dear Ms. Jones:

F/Sgt. Michael Smith of the Indiana State Police and myself spoke with a member of your staff last week in reference to an Indiana law which appears to be in conflict with federal law. Ms. Deirdre Hom was very helpful to us and suggested we write your office for a response.

Indiana enacted a law in 1981 which established a "special purpose bus". By definition, (see page 1 of enclosed statutes), a "special purpose bus means any motor vehicle designed and constructed for the accommodation of more than six (6) passengers, and used by a school corporation for transportation purposes not appropriate for school buses." This type of vehicle is not required to meet any construction or equipment standards in the State. It is only required to be inspected by the State Police once a year. (page 18 IC 20-9.1-4-5)

Page 21 of the enclosure explains the uses of the special purpose buses (IC 20-9.1-5-2.6). They may not be used to provide regular transportation of school children. However, they may be used to transport children and their supervisors, coaches, managers, and sponsors to athletic events, field trips, and other school related activities. Also, these types of vehicles may be used to transport persons enrolled in special education programs for developmentally disabled or physically handicapped persons.

Indiana's definition of a school bus (page 1) is, "any motor vehicle other than a special purpose bus, designed and constructed for the accommodation of more than ten (10) passengers, which is used for the transportation of Indiana school children. The term includes either the chassis or the body or both the chassis and the body." This definition seems to be significantly used for the purpose of transporting primary, pre-primary, or secondary school students to or from such school or events related to such schools."

Further, federal law has established Motor Vehicle Safety Standards in 15 USCS Section 13???. Paragraph d states, "Supremacy of Federal standards; allowable higher standards for vehicles used by Federal or state governments. Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment, any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard . . . etc."

Based on the information previously mentioned, is Indiana's law on special purpose buses and school buses in conflict with Federal law? What recommendations or advice do you give other states regarding this issue? Is it permissible at any time, to transport school children to or from school related activities in a vehicle other than a school bus by schools?

Your written comments and recommendations to these questions would be appreciated. If further information is needed, please call or write this office at your convenience. Thank you for your consideration.

Sincerely,

Robert G. Russell, Acting Director Division of School Traffic Safety/Emergency Planning

RGR/tlg

Enc.