Interpretation ID: nht91-5.15

DATE: August 7, 1991

FROM: Paul Jackson Rice -- Chief Counsel, NHTSA

TO: Dale R. Thompson -- Executive Director, Anderson County Board for the Mentally Retarded and Developmentally Disabled

TITLE: None

ATTACHMT: Attached to letter dated 6-28-91 from Dale R. Thompson to Mary Versailles

TEXT:

This responds to your letter of June 28, 1991, requesting information regarding transportation of handicapped children ages 3 and 4. In your letter and in subsequent phone conversations with Mary Versailles of my staff, you indicated that children in this age group "are officially classified as public school children under recent implementation of Public Law 99-457. Public Law 99-457 requires that public schools provide educational and related services (including transportation) to eligible handicapped children." Previously, your agency had transportated these children, using 15 passenger vans, to your center for developmental training and custodial care. You are now planning to coordinate your services with the local public schools. You plan to use your vans to transport these children to and from the public school. While at the school, the children would receive approximately two hours of educational services from public school teachers. Prior to and after these services, the children would receive custodial care by your staff.

I am pleased to have this opportunity to clarify the operation of Federal law as it applies to school buses. You asked the following three questions about transporting these children.

1. The vehicles our agency has previously purchased to transport this population prior to their public school age classification does not meet FMVSS/(NHTSA) standards as a "school bus". As we are proposing to utilize these vehicles to transport this population TO and FROM a public school facility for both educational and custodial care, are our vehicles subject to any current, or proposed (NHTSA) requirements? NOTE 1. Each child will receive approximately 2 hours of educational services from the school system and 3-4 hours of custodial care per day at the same location.

The National Traffic and Motor Vehicle Safety Act (the Act), defines a "school bus" as a vehicle that "is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools." The National Highway Traffic Safety Administration (NHTSA) has stated that whether a program for preprimary-age students is a "school" is determined by whether the program is educational or custodial. Because your students will be receiving approximately two hours of education each day, the program would be considered educational.

The Act gives NHTSA the authority to regulate the MANUFACTURE and SALE of new vehicles, including new school buses. NHTSA defines "school bus" as a

motor vehicle designed for carrying 11 or more persons, including a driver, and sold for transporting students to and from school or school-related events. See 49 CFR Part 571.3. Note that in determining whether a vehicle is a school bus, one must consider both the vehicle's seating capacity, and its intended use. Thus, under Federal law, a 12-15 passenger van is considered a school bus if its intended use is to transport school children.

NHTSA has issued Federal motor vehicle safety standards applicable to all new school buses. It is a violation of Federal law for any person to sell as a school bus any new vehicle that does not comply with all school bus safety standards. Since you will be transporting children to school, it would be a violation of Federal law for any person, aware of the vehicles' intended use, to sell you a vehicle that is not a school bus.

On the other hand, without violating any provision of Federal law, you may USE a vehicle which does not comply with Federal school bus regulations to transport school children. This is so because the individual States have authority over the use of vehicles. Therefore, to determine whether you may use noncomplying vans to transport school children, you must look to state law. In addition, using noncomplying vans as a school bus could result in increased liability in the event of an accident. You might want to consult your attorney and insurance company to discuss this matter.

2. Would these vehicles be subject to (NHTSA)/FMVSS requirements if they were only used to transport this population FROM the educational/custodial location each afternoon (From school to home only). NOTE 2. After mid-morning public school services are completed, our agency,will be providing afternoon custodial care prior to the return trip home.

NHTSA regulations define a "school bus" as a bus used for purposes that include carrying students to and from school or related events. See 49 CFR Part 571.3. We interpret the term "to and from" to be inclusive of situations where a bus is used to transport children only one way between home and the school. We also note that the Act's definition of school bus uses the term "to or from school."

3. What safety features are required of a "bus" in order to comply with (NHTSA)/FMVSS standards. (NOTE: In a subsequent phone conversation, you stated that you were interested in which standards are applicable to a "school bus.")

The following is a list of all Federal motor vehicle safety standards that include requirements for school buses:

Standards No. 101 through 104; Standard No. 105 (school buses with hydraulic service brake systems); Standards No. 106 through 108; Standards No. 111 through 113; Standard No. 115; Standard No. 116 (school buses with hydraulic service brake systems); Standards No. 119 and 120; Standard No. 121 (school buses with air brake systems); Standard No. 124;

Standard No. 131 (effective September 1, 1992); Standards No. 201 through 204 (school buses with GVWR of 10,000 pounds or less); Standard No. 205; Standards No. 207 through 210; Standard No. 212 (school buses with GVWR of 10,000 pounds or less); Standard No. 217; Standard No. 219 (school buses with GVWR of 10,000 pounds or less); Standard No. 220; Standard No. 221 (school buses with GVWR greater than 10,000 pounds); Standard No. 222; Standards No. 301 and 302.

Some of these standards have unique requirements for school buses, including, but not necessarily limited to, Standards No. 105, 108, 111, 217, and 301. Other standards are applicable only to school buses, including Standards No. 131, 220, 221, and 222. Standard No. 131 requires all school buses manufactured after September 1, 1992 to have a stop signal arm. Standard No. 220 establishes requirements for school bus rollover protection. Standard No. 221 establishes strength requirements for the body panel joints in school buses. Standard No. 222 establishes minimum crash protection levels for occupants on school buses. Under Standard No. 222, small school buses (those with a gross vehicle weight rating (GVWR) of 10,000 pounds or less) must be equipped with lap belts. For large school bus, the standard requires occupant protection through a concept called "compartmentalization" - strong, well-padded, well-anchored, high-backed, evenly spaced seats.

The Federal motor vehicle safety standards are contained in Title 49 of the Code of Federal Regulations (CFR), Part 571. You may find a copy of 49 CFR Part 571 at a Federal Depository Library in your State. If you so choose, you may purchase a copy of the volume of Title 49 which includes Part 571 from the United States Printing Office (GPO), Washington, D.C., 20402, (202) 783-3238.

If you have further questions or need some additional information in this area, please contact Mary Versailles of my staff at this address or by telephone at (202) 366-2992.