Interpretation ID: 1985-01.22

TYPE: INTERPRETATION-NHTSA

DATE: 01/29/85

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: William G. Hilton -- Manager, Vehicle Standards Technical Development Section Transportation and Safety Building (Harrisburg, PA)

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. William G. Hilton, Manager Vehicle Standards Technical Development Section Transportation and Safety Building, Room 407 Harrisburg, PA 17123

Dear Mr. Hilton:

I am writing to you at the request of Mr. John Patchuka, Director of the Pennsylvania Bureau of Motor Vehicles, concerning the effect of Federal law and regulations on small vans that are being used to transport school children in Pennsylvania. Mr. Patchuka's letter to me included several letters and memoranda from Pennsylvania officials, to which I will refer from time to time in my reply.

Briefly stated, it is my opinion that any van with seats for more than ten persons that is sold for purposes that include carrying students to and from school or related events must comply with tha standards for school buses issued by this agency under the National Traffic and Motor Vehicle Safety Act of 1966, Public Law 89-565 (hereafter, the Vehicle Safety Act). These standards include requirements for school bus lights and for mirrors. It is my further opinion that if the highway safety program standard on pupil transportation safety issued by this agency under the Highway Safety Act of 1966, Public Law 89-564 (hereafter, the Highway Safety Act) were to be fully incorporated into Pennsylvania law, a van required to be equipped with school bus lights and mirrors would also have to comply with the painting and marking requirements for Type I school bus vehicles under that standard.

I believe that much of the confusion on the question of van-type school buses arises from the fact that we have issued regulations at various times under two separate statutes. The potential effect of the regulations is sometimes not apparent unless they are read side by side. This is particularly true of the basic definitions. Under the Vehicle Safety Act, which applies to the manufacture and sale of new motor vehicles:

"School bus" means a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, pre-primary, or secondary school students to or from schools or events related to such schools.

This definition was enacted in 1974, as part of a comprehensive effort by Congress to increase school bus safety (Public Law 93-492). As part of our effort to implement the school bus amendments, we undertook rulemaking to establish a regulatory definition. In the course of this rulemaking, we noted that the capacity of a "school bus" as defined in the Act (more than 10 passengers in addition to the driver) was one person larger than the capacity of a "bus" as defined in the standards (more than 10 persons). To make the regulatory definitions consistent, we defined a "school bus" as a category of "bus", thereby including a vehicle with a capacity of more than 10 persons including the driver. The complete regulatory definitions of "bus" and "school bus" are as follows (49 CFR S571.3(b)):

"Bus" means a motor vehicle with motive power, except a trailer, designed for carrying more than 10 persons.

"School bus" means a bus that is sold, or introduced in interstate commerce, for purposes that include carrying students to and from school or related events, but does not include a bus designed and sold for operation as a common carrier in urban transportation.

Pennsylvania's recent enactment of Act 1984-146 conforms the definition of "school bus" under Pennsylvania law to our regulatory definition in 49 CFR S571.3.

Although we have exercised our discretion under the Vehicie Safety Act to exclude certain transit-type vehicles, the great majority of vehicles used to transport students fall within the definition of school bus. More specifically, any new bus sold to a school district, or to a school bus contractor, is considered to be a school bus and must comply with the school bus safety standards applicable at the time of sale. A dealer or distributor who sells a non-complying bus to a school district or school bus contractor is subject to substantial penalties under the Vehicle Safety Act.

Under the Highway Safety Act, which deals with the safety of vehicle operation through a grant program to the States, we defined Type I and Type II school vehicles in Highway Safety Program Standard No. 17, Pupil Transportation Safety, 23 CFR S1204.4 (hereafter, HSPS 17). These definitions are as follows:

"Type I school vehicle" means any motor vehicle with motive power, except a trailer, used to carry more than 16 pupils to and from school. This definition includes vehicles that are at any time used to carry schoolchildren and school personnel exclusively, and does not include vehicles that only carry schoolchildren along with other passengers as part of the operations of a common carrier.

"Type II school vehicle" means any motor vehicle used to carry 16 or less pupils to or from school. This does not include private motor vehicles used to carry members of the owner's household.

The distinctian between school vehicles according to whether their passenger capacity is more than 16 appears only in HSPS 17, which relates only to the operation of the vehicles. At the point of sale, the Vehicle Safety Act standards apply. An 11 passenger bus, for example, would be required to be sold with school bus lights and mirrors conforming to the requirements for school buses found in Motor Vehicle Safety Standards Nos. 108 and 111 (49 CFR SS571.108, 571.111), the same as a school bus with a capacity of 44 passengers.

This is the point at which the interaction between the different Acts becomea crucial to an understanding of the lighting and marking requirements of HSPS 17. For the smaller buses that it defines as Type II school vehicles, HSPS 17 creates alternative requirements in Section IV.B.5.a: a Type II school vehicle must either (1) conform to the requirements applicable to Type I school vehicles (yellow paint, black bumpers, warning lights, and "School Bus" signs), or (2) be devoid of all school bus equipment and identifying features. There is no middle ground: Type II school vehicles must be either fully equipped and identified, or not equipped or identified at all. As it happens, however, a bus sold for use as a school bus is required by the Vehicle Safety Act to have warning lights and mirrors (as well as many other safety features). It therefore has the equipment specified by HSPS 17 for Type I school vehicles. Because it must have this equipment, it would not comply with IV.B.5.a(2) of HSPS 17. In a State whose law fully incorporated HSPS 17, such a bus would have to be painted and signed, as required by IV.B.5.a(1).

Let me stress once more that if a school district or school bus contract operator purchaces a bus to transport students, that bus must comply with the federal motor vehicle safety standards applicable to school buses, including the requirements for warning flashers, regardless of the provisions of State law. It is not relevant for Vehicle Safety Act purposes that the bus might be used in some areas where its warning signals may not be activated. The only relevant question is whether the bus will be used to transport students to and from school or related events.

The memoranda and letters attached to Mr. Pachuta's letter reflect differing interpretations of one section of the Pennsylvania Vehicle Code which bears on the question of school bus equipment. This section, 75 Pa.C.S. S4552(h), provides that

established by the department shall not require vehicles which pick up and discharge schoolchildren only at locations off the highway to be of any particular color or to display flashing red and amber lights.

The letter from Mr. David H. Dille, Assistant Solicitor for the Pittsburgh Board of Public Education, asserts that this section prevents the State from requiring a Type II school vehicle to "be painted National School Bus Glossy Yellow and to be equipped with flashing red and amber lights." In contrast, the opinion of the Pennsylvania Department of Transportation, as reflected in the letter of March 13, 1984, from Douglas K. Tobin, Director of Driver Licensing, and the supporting memorandum from Michael R. Deckman, Deputy Chief Counsel, is that the Federal regulations interact to require Type II school vehicles to be equipped with warning lights, yellow paint, and "School Bus" signs.

In my view, Mssrs. Tobin and Deckman are essentially correct. Mr. Deckman's memorandum cites the passage in the guidelines we issued in Notice 900 on June 1, 1977, in which we concluded that HSPS 17 would require buses equipped with the school bus lighting system to be painted and signed. We have consistently maintained this position in subsequent memoranda and correspondence, and we believe that it reflects the operation of a "Federal law or regulation" that prevents Section 4552(h) of the Pennsylvania Vehicle Code, by its own terms, from allowing the use of school buses without warning lights and yellow paint. This is the case even though our agency has not elected to insist on the State's compliance with HSPS 17 as a condition for receiving highway safety funds.

As a final note on the operation of school buses under Section 4552(h), it is consistent with the Federal regulations for a State to designate areas in which school bus warning lights may not be used. The standards under the Vehicle Safety Act regulate only the manufacture and sale of new vehicles, not their use. Under the Highwsy Safety Act, section C.3.b of HSPS 17 expressly states that the "use of flashing warning signals while loading or unloading pupils shall be at the option of tne State." Thus, while our regulations require s school bus to be equipped with school bus warning lights, we do not specify the circumstances in which the lights must be used. If Pennsylvsnis chooses to invoke Section 4552(h) by designating aress in whioh warning lights should not be used, it may do so.

To summarize, our laws and regulations provide that:

o A vehicle is a bus under the Vehicle Safety Act if it is designed for carrying more than 10 persons.

o A bus sold for purposes that include carrying students to and from school or related events is s school bus under the Vehicle Safety Act.

o A school bus manufactured after the effective date of a school bus safety standard under the Vehicle Safety Act must comply with the standard.

o The safety standards now in effect require school buses to have school bus warning lights, mirrors and other safety equipment.

o Under the Highway Safety Act, HSPS 17 provides that a school bus equipped with school bus warning lights must also be painted yellow and marked as a "School Bus".

o A State is free to specify the circumstances under which the warning lights are to be used.

I hope that you will find this letter responsive to your needs. Please do not hesitate to write if you have further questions.

Sincerely,

Frank Berndt Chief Counsel