Interpretation ID: 21202.drn

James Hill, Esq.
General Counsel
South Carolina Department of
Disabilities and Special Needs
P. O. Box 4706
Columbia, SC 29240

Dear Mr. Hill:

This responds to your January 27, 2000, request for an interpretation regarding our school bus regulations as they apply to the transportation of mentally disabled individuals, most of whom are beyond school age, "to different locations on or about a mental retardation facility." The facility provides training, which you say approximates that of a school, although the method of instruction is typically by way of rote repetition. You write that South Carolina is considering using "a converted 12/15 passenger van" to transport the students.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "school bus" as any vehicle that is designed for carrying a driver and more than 10 persons and which NHTSA decides is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport school students is a "school bus." Persons selling or leasing a new 15-person van for such use must sell or lease a van that meets our school bus standards.

We believe that our school bus standards would not apply to a new bus sold to the facility because most of the participants in the program are adults. Our school bus standards do not apply to buses used for adults who are older than the ages of secondary school students. (The legislative history of our statute does not indicate an intent to apply the school bus standards to buses sold to transport adults. Accordingly, we have always interpreted our school bus definition to exclude buses sold for adult transportation, e.g., buses sold to transport college students.) New buses sold for transporting the adults in your program therefore need not comply with Federal school bus standards. If a dealer were to sell or lease a new bus (e.g., a 15-passenger van) to transport the adults, the dealer need not sell or lease a school bus.

Please note, however, that our school bus regulations might apply if a significant number of persons of secondary school age were regularly being transported by bus. You indicate that some of the students may be under 18 years of age. We would consider persons under 18 years of age receiving instruction by your Department to be students. Therefore, if a dealer were to sell or lease a new bus or new 15-passenger van that would be "likely to be used significantly" by students instructed by your Department for transportation "to or from school or an event related to school," the dealer must sell your Department a bus that meets NHTSA's school bus standards.

To clarify a point you made referring to requirements for the "proper use" of the converted van, NHTSA's safety standards directly regulate only the manufacture and sale of new motor vehicles, not their use. Federal law does not address the issue of whether you may use a vehicle which does not comply with Federal safety standards to transport school students. Each State is free to impose its own standards regarding use of motor vehicles, including school buses. South Carolina's laws determine whether you may use the bus for the purposes you have in mind. Please ensure that use of the 15-passenger van meets applicable Federal and State requirements for transporting persons with special needs.

If your Department is training or rehabilitating school-age children, we would strongly urge that you provide buses certified as meeting NHTSA's school bus standards to transport them. School buses are one of the safest forms of transportation in this country. Using 12- to 15-person vans that do not meet NHTSA's school bus standards to transport school age students could result in increased liability in the event of a crash.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating four crashes in 1998 and 1999 in which 9 people were killed and 36 injured when riding in "nonconforming buses." NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

I hope this information is helpful. If you need further information please feel free to contact Dorothy Nakama at this address or at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA#571.3
d.3/30/2000