Interpretation ID: 19278.DRN
Richard Nelson, Director
Nebraska Department of Health and Human Services
Regulation and Licensure
P. O. Box 95007
Lincoln, NE 68509-5007
Dear Mr. Nelson:
This responds to a letter from your predecessor, Ms. Gina Dunning, regarding a "new regulation" that Ms. Dunning believed the National Highway Traffic Safety Administration (NHTSA) has issued which "prohibits the sale of commercial vans with a capacity of eleven or more to child care centers that transport children to or from school and school-related activities and Head Start programs." As the head of the Nebraska regulatory agency for child care programs, Ms. Dunning expressed concern about its effect on transportation for children in your state.
Let me begin by explaining that NHTSA's school bus regulations have not changed. We have, however, clarified our interpretation of the regulations. Our statute, at 49 U.S.C. 30112, requires any person selling or leasing a new vehicle, including a new school bus, to sell or lease a vehicle that meets all applicable safety standards. Our statute defines a "schoolbus" as any vehicle that is designed for carrying 11 or more persons and which is likely to be "used significantly" to transport preprimary, primary, and secondary students "to or from school or an event related to school" (emphasis added). 49 U.S.C. 30125. Any person selling a new "school bus" must sell a vehicle that meets our school bus safety standards, or risk civil penalties under Federal law.
In recent interpretation letters to NHTSA, the agency was asked to address situations where non-educational institutions are procuring buses to transport children to or from school. In answering these, we had to determine whether the bus was to be "used significantly" to transport the students to or from school. >If a new bus is sold for such purpose, the dealer selling such a vehicle for that purpose must sell a bus that has been certified as meeting our school bus safety standards. There are van-based vehicles, completed by school bus manufacturers, that are certified to those standards.
One of those letters involved a dealer selling a new 15-passenger van to a child care facility which planned to significantly use the van for school transportation. The letter is dated July 23,
1998, to Mr. Don Cote of Northside Ford in San Antonio, Texas (copy enclosed). In that letter, we explained that the large passenger van is a "school bus" under our regulations. Thus, when a dealer sells or leases a new van for such use, the dealer must sell or lease only buses that meet Federal motor vehicle safety standards for school buses, even when the purchaser is a child care facility.(1)
The Cote letter discusses NHTSA's reexamination of two previous letters addressed to Ms. Vel McCaslin of Grace After School. In arriving at the conclusions set forth in the Cote letter, NHTSA decided that the letters to Ms. McCaslin did not focus on the fact that the buses were being used to transport school children "from school" as specified in 49 U.S.C. 30125. To the extent that the McCaslin letters are inconsistent with it, the Northside Ford letter superceded the letters to Ms. McCaslin.
This change in interpretation applies only to persons that sell new buses, not to school bus purchasers or users. NHTSA cannot require Nebraska's institutions, including schools or child care centers, to buy only school buses for use in transporting students. How children are to be transported to or from school is determined by Nebraska state law.
Ms. Dunning expressed concern whether "children are indeed safer being transported by school buses than commercial vans," and indicated that while that might have been true in 1974, her belief is that vans are safer today than they were in 1974. All motor vehicles, including passenger vans and other buses, must meet higher safety standards today than they did in 1974. Nevertheless, children are still much safer when transported by school bus, than by passenger van or passenger car. This point is illustrated in the enclosed NHTSA publication "School Bus Safety: Safe Passage for America's Children."
Page 12 of the publication shows how safety is enhanced for school buses, with a table summarizing the Federal motor vehicle safety standards applicable to school buses. Passenger vans are not required to meet the described safety enhancements.
Ms. Dunning expressed concern about the fact that the large school buses are not required to provide seat belts. I am enclosing NHTSA's position on this issue, titled "Seatbelts on School Buses." This information is from NHTSA's web site at www.nhtsa.dot.gov. In brief, our position has been that school bus crash data show that Federal requirement for belts on school buses would provide little, if any, added protection in a crash.
Ms. Dunning also believed that child care centers that purchase school buses "will incur significantly higher vehicle costs and higher insurance, maintenance and fuel costs." We have examined the issues of costs and availability. Our inquiries to the vehicle manufacturers indicate that while school buses are somewhat more expensive than large vans, the difference is not so large that it would prevent child care centers from acquiring school buses. The cost range for 15-passenger school buses is approximately $30-32,000, compared to $25-28,000 for 15-passenger vans. The longer service life for school buses will offset a part of this difference.
Ms. Dunning's final point was that child care centers have expressed concern about the length of time it takes between ordering a school bus and its delivery. Ms. Dunning said that the delay hampers the child care centers' operations and "will seriously impact centers' ability to meet parent needs and remain in business." NHTSA has a very strong focus on child safety in transportation, and is doing its best to facilitate school bus purchases for child care centers that seek to purchase school buses for their school-aged children. The leadtime required for delivery of a school bus may be two or three months longer than for a large van, but this should not present a problem for organizations that follow a systematic plan for vehicle replacement. We are currently working with our partners in state and local communities, and in the school bus industry, to see what can be done to reduce the time between a school bus order and its delivery.
For your information, because of the increasing number of pre-school aged children being transported by school buses and the pupil transportation community's request for guidance on how to safely transport these children, NHTSA released a February1999 Guideline for Transporting Pre-school Aged Children in School Buses. A copy of this document is enclosed for your information.
I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.
Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures (4 items)
ref:VSA#Part 571.3
1. Please note that NHTSA has never stated that day care facilities that provide only custodial care are "schools." NHTSA's laws do not affect new bus sales to child care facilities that are not significantly involved in transporting school aged children "to or from" school. The Cote letter could affect the facility if it is involved in transporting children to or from school.