1984-2.23 | NHTSA

TYPE: INTERPRETATION-NHTSA

DATE: 07/09/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Maryland State Department of Education

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your March 20, 1984, letter to the National Highway Traffic Safety Administration (NHTSA), concerning the Federal school bus safety standards administered by this agency. You asked three questions regarding passenger seating in school buses and the classification of vehicles as school buses.

Specifically, your questions asked:

(a) There are 9 students plus the driver, for a total of 10 people, in a school bus. For purposes of the definition of a school bus, is the driver a passenger?

Section 571.3 of the Code of Federal Regulations defines a "school bus" as a bus that transports children to or from school or related events. Our regulations further define "bus" as a vehicle designed for carrying more than 10 persons. The driver is considered a "person" under our regulations. Thus, it may be useful to remember that any vehicle that carries more than 10 persons is a bus. Your vehicle which seats 9 students plus the driver, for a total of 10 persons, would not be considered a school bus.

(b) If a van is originally designed for 11 passengers plus a driver and, because of the definition of a school bus, the school system desires to alter the number of seat spaces by removing seats so that the van will accommodate 9 pupils plus the driver, will this alteration in any way conflict with the definition of vehicle capacity? (I would assume that any structural changes would place liability in the event of accident attributable to that alteration on the local school system making the change.)

In asking whether the alteration will "conflict with the definition of vehicle capacity," we assume that you are asking whether removing the seats of the vehicle changes the classification of that vehicle as a bus. Your letter is not clear whether it is a dealer who will be modifying the vehicle prior to its sale to the school system, after its sale to the school system, or whether the school itself will be modifying the bus after purchasing the vehicle. We will address these situations in our answer.

Altering an 11-passenger van by removing some of its seats so that it would no longer be of a passenger capacity that would classify it as a bus is, in theory, permissible. If a dealer makes such a modification before the vehicle is sold to you, it must attach an alterer's label in accordance with Part 567.7, Certification, of our regulations. Since the dealer would be changing the vehicle type from a bus to a multipurpose passenger vehicle, it must make sure that the vehicle complies with all of the standards applicable to that new vehicle type. This might be difficult since some different standards apply to multipurpose passenger vehicles than apply to buses.

If the modifications to the vehicle are made by a business such as a garage after you purchase the vehicle, the persons modifying the vehicle must not knowing render inoperative the compliance of your vehicle with any applicable safety standard. Section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act prohibits motor vehicle manufacturers, distributors, dealers and repair businesses from rendering inoperative equipment or designs that are incorporated in motor vehicles in compliance with the Federal motor vehicle safety standards. This means that a person in any of the above categories would not be permitted to destroy the vehicle's compliance with any safety standard by the removal of the seat.

The prohibition against rendering inoperative does not apply to an owner, such as a school or a state, which modifies its own vehicles. A school modifying its own vehicles need not assure that the vehicles comply with the Federal school bus safety standards. However, you are correct in assuming that your school could incur substantial tort liability in the event of an accident involving a vehicle that was not in compliance with the appropriate safety standards. This matter should be discussed with your insurance company and attorney. You should further determine whether your State law would prohibit the use of these vehicles to transport school children.

(c) On a 60-passenger school bus, all of the seats except the three rows in the front are removed. Each seat is 39 inches in width and is used to accommodate two high school pupils. The vehicle color is something other than yellow. A floor-to-ceiling barrier, with an emergency opening, is installed behind the three rows of seats. Supplies, materials, tools, equipment, etc., are transported in the rear of the vehicle with up to 12 youngsters plus the driver in the front portion. Given that all these factors exist at one time, will this vehicle be in conflict with any federal standards? If so, which ones?

There are several areas of school bus safety which could be affected by the proposed modification of the vehicle. Since the vehicle will be carrying more than 10 persons, it is categorized as a bus, and classified by its use as a school bus. A threshold issue related to the question you asked concerns, again, the possibility that removing the bus seats will render inoperative the vehicle's compliance with the Federal school bus safety standards. The issue depends on whether it is a garage-type business that will be altering the bus, or the school. Modification of a safety system so that it no longer complies with all applicable safety standards in effect on the date of the vehicle's manufacture would be a violation of Section 108(a)(2)(A). As discussed earlier, this prohibition does not apply to an owner, such as a school or a state, which modifies its own vehicles. A school may make any modification that it chooses to its buses. Such action does not violate the Vehicle Safety Act or render the school subject to any penalty under the Act.

However, as you know, private liability might occur if the modifications took the vehicle out of compliance with the safety standard and a student was subsequently injured in one of the buses. Accordingly, the modifications you make should not negatively affect the compliance of your vehicle with the safety standards.

The removal of the bus seats does not appear likely to affect adversely your vehicle's compliance with the Federal safety standards. Those standards do not require the installation of any specific seats or any specified number of seats in school buses. Instead, the standards specify that certain requirements must be met for any seat that is installed. Therefore, if the bus complied with the requirements of the Federal school bus safety standards before its alteration, the proper removal of the seats would not affect the vehicle's compliance.

You propose to install a floor-to-ceiling barrier in the vehicle behind the three rows of seats. Your letter does not describe this barrier in detail, but states that it contains an emergency opening. We are concerned that this barrier would render the vehicle in noncompliance with the requirements for emergency exits found in FMVSS No. 217, Bus Window Retention and Release.

Standard No. 217 regulates the number and size of school bus emergency exits and requires that the release mechanisms of those exits be readily accessible. The purpose of these requirements is to provide an easily operable, unobstructed school bus emergency exit. In the past, the agency has preempted a State requirement for a safety chain that would have been placed across an exit, because we viewed the chain as providing an obstruction to the opening. We have also interpreted the Standard to prohibit a ramp used for transporting the handicapped when the ramp partially blocked the rear emergency exit when it folded into the bus. Your letter did not describe in detail the floor-to-ceiling barrier in your bus and we are unable to form an opinion as to the compliance of the altered vehicle with Standard No. 217. However, if the barrier provides an impediment to the emergency exit then the alteration might conflict with FMVSS No. 217. Further, if the barrier conflicted with Standard No. 217, then it could not be added as aftermarket equipment by any manufacturer, dealer, or repair business, without rendering inoperative the compliance of the bus with the safety standard.

Finally, you indicated that the school bus would be a color other than yellow. Highway Safety Program Standard No. 17 formerly permitted school vehicles carrying 16 or less students to or from school (i.e., "Type II" school vehicles) to be marked, painted, and lighted in one of two ways. The buses could be either marked, painted, and lighted as school buses, or marked, painted, and lighted differently than school buses. However, all school buses now must have the lighting of a school bus required under Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment. Since all school buses must have the lighting of a school bus, under Highway Safety Program Standard No. 17 they also must have the painting and marking of a school bus.

SINCERELY,

MARYLAND STATE DEPARTMENT OF EDUCATION

March 20, 1984

Frank Berndt, Esquire Chief Counsel, NHTSA NHTSA NTS-31 U.S. Department of Transportation

Dear Mr. Berndt: In reviewing CFR 49 (definition of a school bus), the information which you provided recently to school bus contractors in Wisconsin, and Section 201 of Public Law 93-492, I confess I am confused as to who are the passengers on a school bus.

One of my specific questions, I believe, concerns whether the driver is considered as a passenger in a school bus. Below are several situations for which I would like clarification.

(a) There are 9 students plus the driver, for a total of 10 people, in a school bus. For purposes of definition of a school bus, is the driver a passenger?

(b) If a van is originally designed for 11 passengers plus a driver and, because of the definition of school bus, the school system desires to alter the number of seat spaces by removing seats so that the van will accommodate 9 pupils plus the driver, will this alteration in any way conflict with the definition of vehicle capacity? (I would assume that any structural changes would place liability in the event of accident attributable to that alteration on the local school system making the change.)

I have tried to be as specific as possible in the details provided, but it may well be that further amplification on my part is necessary. Please do not hesitate to call me at (301) 659-2602 so that we might discuss the matter before you reply.

Thank you very much for your cooperation. I look forward to hearing from you very soon.

Wm. Richard Alexander, Chief Pupil Transportation Section

Interpretation ID: 1984-2.23