Interpretation ID: nht92-6.39

DATE: May 25, 1992

FROM: C.N. Littler -- Coordinator, Regulatory Affairs for Motor Coach Industries, Inc., and Transportation Manufacturing Corporation

TO: Mary Versailles -- Office of Chief Counsel, NHTSA

TITLE: Subject: NHTSA Pre-emptive Authority With Respect to New York Program Bill No. 253

ATTACHMT: Attached to letter dated 8/19/92 from Paul J. Rice to C.N. Littler (A39; Std. 208; VSA 103)

TEXT:

I have attached, pursuant to our telecon of May 14th, a copy of New York Governor Cuomo's Program Bill No. 253 for a departmental review. We believe that a legitimate argument of interference with Federal pre-emptive authority exists with respect to this proposed State legislation.

The Governor's Bill will require all buses, certified or licensed within New York, or entering New York and performing substantial revenue service; to be equipped with seat belts at all passenger seating positions. The Motor Vehicles Safety Act (1966) Sec 103(d) appears to prohibit the State from mandating vehicle safety standards to a higher level than the Federal standards on all but State owned vehicles.

Therefore, following your review of the attached bill, I would greatly appreciate a legal opinion regarding this issue and/or any other points of note.

Thank you for your time and consideration regarding this matter, with kindest regards, I remain, respectfully yours.

Attachment GOVERNOR'S PROGRAM BILL 1992 Memorandum

RE: AN ACT to amend the vehicle and traffic law, in relation to the requirement for seat belts on buses, the reexamination and disqualification of certain bus drivers, and the obligations of bus drivers and motor carriers

PURPOSE:

To increase bus driver qualification standards, to improve the system for providing information regarding the driving recOrd of bus drivers, and to require that certain buses be equipped with seat belts.

SUMMARY OR PROVISIONS:

Section 1 of the bill adds a new subdivision 6 to section 383 of the Vehicle and Traffic Law to provide that buses manufactured after July 1, 1993 shall be equipped with seat safety belts, except for buses operated by motor carriers which do not operate more than 100 days or more than ten thousand vehicle miles in the State.

Section 2 of the bill adds a new section 509-bb to the Vehicle and Traffic Law to require the reexamination of bus drivers who have a total of three driving convictions and/or accidents within a three-year period. One of the driver's convictions or accidents will not be counted in that total if the driver successfully completes a motor vehicle accident prevention course approved by the Commissioner of Motor Vehicles. The type of accidents which will be counted, as well as the type of reexamination to be administered, will be determined by regulation. If the driver fails the reexamination, the Commissioner of Motor Vehicles may suspend, revoke or impose restrictions on the driver's license, and the driver must pass the examination before being authorized to operate a bus.

Sections 3, 5, 7 and 9 of the bill amend sections 509-c(1)(d), 509-c(2)(d), 509-cc(1)(d) and 509-cc(2)(e) of the Vehicle and Traffic Law, respectively, to require one-year disqualifications of bus drivers and school bus drivers upon the conviction of three or more serious driving violations, as defined by the Commissioner of Motor Vehicles, or upon the conviction of five or more driving violations of any kind, within a three-year period. One conviction of such drivers will not be counted in that total if the driver successfully completes a motor vehicle accident prevention course approved by the Commissioner of Motor Vehicles.

Sections 4, 6, 8 and 10 of the bill add two new paragraphs to sections 509-c (1), 509-c(2), 509-cc(1) and 509-cc(2) of the Vehicle and Traffic Law, respectively: 1) to require a one-year disqualification of a bus driver or school bus driver who has failed a reexamination under new section 509-bb of the Vehicle and Traffic Law, which is added by section 2 of this bill; and 2) to require a one-year disqualification of a bus driver or school bus driver who has been the subject of such a reexamination, if the driver is convicted of a serious driving violation, is convicted of three or more driving violations of any kind, or is involved in two or more vehicle accidents within an eighteen month period following such reexamination. The type of accidents which will be counted will be determined by regulations of the Commissioner of Motor Vehicles.

Section 11 of the bill amends section 509-d(1) of the Vehicle and Traffic Law to provide that, prior to hiring a new bus driver, a motor carrier must obtain the driving record of the applicant and investigate the applicant's employment record.

Section 12 of the bill amends section 509-f of the Vehicle and Traffic Law to provide that motor carriers annually shall require each bus driver to provide the carrier with a list of all traffic violations and all accidents in which the driver was involved during the prior twelve months.

Section 13 of the bill amends section 509-i of the Vehicle and Traffic Law to require the Commissioner of Motor Vehicles to notify a motor carrier of any convictions or accidents of a bus driver resulting from the operation of any motor vehicle. Motor carriers will be required to establish an escrow account with the Department of Motor Vehicles, which shall charge a fee to defray the costs of the notification.

Section 14 of the bill amends section 509-j of the Vehicle and Traffic Law to increase the minimum civil penalty for violations of the motor carrier laws and regulations from $250 to $500 per violation, and to increase the maximum penalty from $1000 to $2,500 per violation.

This bill takes affect on the first day of September next succeeding the date on which it shall have become a law, provided that no reexamination or disqualification shall be required by the changes made by sections two through ten of the bill solely as a result of convictions or accidents which occurred prior to such effective date.

EXISTING LAW:

Under Section 383 Of the Vehicle and Traffic Law, seat belts are required on passenger vehicles manufactured after 1965 and on school buses manufactured after July 1, 1987, but are not required on other buses.

Under section 506 of the Vehicle and Traffic Law, the Commissioner of Motor Vehicles can require the reexamination of any driver who has been involved in three accidents within an eighteen-month period. If the driver fails the examination, the Commissioner may revoke or suspend the driver's license, or may impose restrictions on the use of the license.

Article 19-A of the Vehicle and Traffic Law currently provides for a one-year disqualification of bus drivers who accumulate nine or more points within an eighteen-month period. There is no current requirement for disqualification based upon a driver's involvement in multiple accidents.

Section 509-d of the Vehicle and Traffic Law requires that, prior to hiring a new bus driver, a motor carrier must "make an inquiry" for the driving record of the applicant, but does not require that the record actually be obtained. Section 509-i of the Vehicle and Traffic Law requires the Commissioner of Motor Vehicles to provide notification of new driving convictions of bus drivers to those motor carriers which request such information and pay the necessary fee. Section 509-f of the Vehicle and Traffic Law requires bus drivers to inform motor carriers of driving convictions, but not accidents.

Under section 509-j of the Vehicle and Traffic Law, the Commissioner of Motor Vehicles can require that a motor carrier pay a civil penalty between $250 and $1000 for violations of the motor carrier laws and regulations.

STATEMENT IN SUPPORT:

The tragic bus accident which occurred in Warren County on April 11, 1992 and resulted in the death of two young students from Long Island highlighted three deficiencies in our current law. First, present law does not permit the disqualification of bus drivers based upon prior accidents. Second, the current system of employer review of employees' prior accidents and driving convictions is insufficient. Finally, although seat belts are currently required on cars and school buses, they are not required on charter buses, even if those buses are carrying school children. This bill seeks to cure those deficiencies in the law, in order to reduce the chances of a similar accident in the future.

First, this bill provides that a bus driver who has a total of three serious driving convictions or accidents within a three-year period must undergo a new examination, including a road test. Driving convictions and accidents which occur while the driver is operating a personal vehicle are included in this total. If the driver fails to pass the road test, the driver will be disqualified from operating a bus for one year. If the driver passes the road test, no penalty is imposed, but a subsequent serious conviction or two subsequent accidents within an eighteen-month period will result in a one-year disqualification. In addition, any driver having three convictions within a three-year period will be disqualified for one year.

Second, this bill will reform the present conviction and accident information system. Under current law, a motor carrier is not permitted to hire a new driver unless they "make an inquiry" for the driving record of the applicant from every state in which the applicant worked or held a license during the preceding three years. Simply making the inquiry is all that is necessary, however, and there is no requirement that the record actually be obtained. In addition, every year drivers must inform their employers of motor vehicle violations which have occurred during the prior twelve months, but they are not required to report accidents. Moreover, although DMV operates a system for informing motor carriers of new convictions of their drivers, the program is optional. This bill will correct these inadequacies by requiring that motor carriers actually obtain the driving records of applicants, by requiring that drivers inform their employers of accidents as well convictions each year, and by requiring that all motor carriers take part in DMV's driving conviction notification system.

Finally, State law presently requires that all school buses manufactured after July 1, 1987 and operated in this State be equipped with seat belts, but does not require seat belts on other buses. This bill requires that all buses manufactured after July 1, 1993 and operated in this State be equipped with seat belts, except for buses of motor carriers which do not conduct substantial business within this State.

BUDGET IMPLICATIONS:

Any increased costs incurred by the Department of Motor Vehicles as a result of this bill will be accommodated within their present budget.