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Interpretation ID: 20409.drn



    Mr. Rod Nash
    Vice President - Engineering
    Collins Bus Corporation
    P. O. Box 2946
    Hutchinson, KS 67504-2946


    Dear Mr. Nash:

    This responds to your request for interpretation of the requirements of Federal law applicable to the sale of buses intended to be used for the transportation of children by day care providers. I regret the delay in this response. Your questions are answered below.

    Your first question is: if a day care center wishes to purchase a bus to transport its children to their homes, what kind of assurances does it need to provide a dealer or manufacturer that the intended use does not dictate a school bus? You note that the user is the only person who can actually know how the bus will be used during its life.

    You ask your question against the following background. As you know, any person selling a new "school bus" must sell a bus that meets our school bus standards. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, the National Highway Traffic Safety Administration (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 (49 CFR 571.3(b)).

    Our longstanding position has been that day care centers in and of themselves are not "schools" within the meaning of our statute because of their primarily custodial, rather than educational, emphasis. However, when a day care center is providing transportation to or from school or school-related events, then the transportation constitutes the described action -transporting students to or from school-contemplated by the statute. As you may be aware, in a letter of July 23, 1998, to Mr. Don Cote of Northside Ford (copy enclosed), we advised that when a dealership sells or leases a new bus to a child care facility to drop off and pick up school children from school "on regular school days," the dealership must sell or lease only a bus that meets the Federal motor vehicle safety standards for school buses.

    There is no definitive answer to your question, but I will provide a basic guideline. We currently do not presume that day care centers universally are engaged in the transportation of children to or from school. In addition, some day care centers are sole proprietorships and some do not have a term such as "Day Care Center" in their names. However, where it is likely that the purchaser or lessor of a new bus is a day care center, in light of the widespread publicity that has surrounded the issue, we expect a dealer to inquire as to whether the vehicle would also be used to drop off or pick up students from school. If it appears that a vehicle will be used significantly for student transportation, the requirement to sell a certified school bus that meets the Federal motor vehicle safety standards for school buses would apply. Confirmation in writing would appear to be prudent.

    Your second question is: whether it is possible for State law to "direct" transportation for school children in vehicles other than school buses? NHTSA's laws apply to the manufacture and sale of new motor vehicles. Each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, for the transportation of school children. We are not aware of any State that "directs" the use of buses other than school buses for this purpose, although some States permit the use of non-school buses. In any event, a State "directive" to transport children in vehicles other than school buses would not affect dealers' responsibilities under Federal law with respect to the sale or lease of new buses for pupil transportation.

    Our "school bus" definition determines which new vehicles sold or leased by dealers are required under Federal law to meet the Federal motor vehicle safety standards for school buses. If a State has a different school bus definition, that definition determines the applicability of State requirements, but it has no effect on the Federal requirement on dealers to sell certified school buses. To illustrate, if a State chooses to define "school bus" to include only buses with a capacity of 15-passengers or more, that definition would not affect the obligation of dealers in selling or leasing 10- to 14-passenger buses under Federal law. If a dealer sold or leased a new bus of this size for school transportation, the dealer would have to ensure that the bus was certified to the Federal motor vehicle safety standards applicable to school buses.

    Your third question is: how does a day care center obtain a vehicle that a State says it should use, even though it would be a vehicle that NHTSA prohibits a dealer from selling as new? As above, we are not aware of any State that "says" a day care center should not use a school bus to carry children to or from school. The fact that States may permit the use of such vehicles does not affect Federal requirements. Under Federal law, a dealer may not sell any new bus for the transportation of children to or from school or school-related activities unless the bus has been certified by its manufacturer as complying with all Federal school bus standards. Thus, State law could not permit dealers to sell new, noncomplying 15-passenger vans for pupil transportation. In general, we understand that vehicles that meet Federal and various State standards are available.

    In fully addressing the type of vehicle that should be used to transport children, I also bring the following matter to your attention. At a June 8, 1999, public meeting, the National Transportation Safety Board (NTSB) issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating in 1998 and 1999, four crashes 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 the Governors of the Fifty States and the Mayor of the District of Columbia:

      Require that all vehicles carrying more than 10 passengers (buses) and transporting children to and from school and school related activities, including, but not limited to Head Start programs and day care centers, meet the school bus structural standards or the equivalent as set forth in 49 Code of Federal Regulations Part 571. Enact regulatory measures to enforce compliance with the revised statutes.

    The NTSB also issued the following Safety Recommendation 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.

    In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using buses that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

    I am also enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than non-school buses, such as 15-person vans.

    I hope this information is helpful. If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office at (202) 314-6100.

    Sincerely,

    John Womack
    Acting Chief Counsel

    Enclosure
    ref:VSA#571.3
    d.5/9/01