Interpretation ID: 24258.drn

Mr. Mark Perez
UniServ Director/Education Support Personnel Specialist
Georgia Association of Educators
100 Crescent Centre Parkway, Suite 500
Tucker, GA 30084-7049

Dear Mr. Perez:

This responds to your question about how Federal law would affect legislation being considered in Georgia that would require upgrades of older public school buses to meet current Federal school bus standards. Our answer is provided below.

In your letter, you state that proposed legislation in Georgia:

would call for all current buses to be modified to include such items as: cross-over mirrors on each bus which shall be adjusted such that the driver may view the front and both sides of the bus from the drivers seat; functioning parking brakes on each bus; and an extension arm or gate on the front of each bus which may be activated by the driver to prevent passengers from crossing immediately in front of the bus.

In a telephone conversation with Dorothy Nakama of my staff, you stated that the proposed legislation would apply only to public school buses that are already owned by the schools or school districts (i.e., used school buses). You further stated that the legislation would apply only to vehicles that, when first sold, were certified by the manufacturer as meeting Federal school bus safety standards. You also asked that we discuss only the proposed legislations requirements for convex-cross view mirrors, parking brakes and crossing control arms.

Mirrors and Parking Brakes

The Federal motor vehicle safety standards (FMVSSs) require that all presently manufactured school buses have convex-cross view mirrors (Standard No. 111, Rearview mirrors) and parking brakes (Standards No. 105, Hydraulic and electric brake systems and No. 121, Air brake systems). Since the school buses that are the subject of the legislation were manufactured before the effective dates of the school bus mirror and parking brake requirements, the proposed legislation would require retrofitting of older buses to meet current requirements.

One issue raised by your inquiry is whether the State legislation would be preempted by Federal law. Our answer is no. The National Highway Traffic Safety Administration (NHTSAs) preemption authority, specified at 49 U.S.C. 30103(b), states in part:

(1) When a motor vehicle safety standard is in effect under this chapter [49 U.S.C. Sections 30101 et seq.], a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. However, the United States Government, a State, or a political subdivision of a State may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the otherwise applicable standard under this chapter.

We assume that you are asking about a State provision that would require that only school buses that have the specified school bus mirrors and parking brakes can be operated in the state. Generally, a State is not required to impose operational requirements that are "identical" to the FMVSSs. Nonetheless, there are limits on State operational requirements, in that general principles of preemption law apply. These principles generally preclude States from adopting operational requirements that are more stringent than the requirements applicable to the vehicles under the FMVSSs, because more stringent State requirements would have the effect of precluding the use of a Federally compliant vehicle in that State. However, these preemption principles do not apply to vehicles, such as school buses, procured by a State or local governmental jurisdiction for its own use. Since the legislation you describe would apply only to public school buses, 30103(b) would not preempt the legislation you describe.

Another issue raised by your inquiry is whether NHTSA has any restrictions on the type of modifications that can be made to used vehicles. Nothing in NHTSAs laws would prohibit an owner (i.e., public or private school) from upgrading its used school buses to meet the most current Federal motor vehicle safety standards. The provision in NHTSAs statute addressing modifications of new and used vehicles is at 49 U.S.C. Section 30122(b), which states:

a manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter [49 U.S.C. Section 30101 et seq.] unless the manufacturer, distributor, dealer, or repair business reasonably believes the vehicle or equipment will not be used (except for testing or a similar purpose during maintenance or repair) when the device or element is inoperative.

Section 30122(b) does not apply to an owner modifying its own vehicles. It does not apply to private schools, public schools or public school districts that make changes to their own used school buses in their own bus garages or repair and maintenance facilities. It does apply to other entities, e.g., motor vehicle repair businesses that, in making modifications for a school district, may do so in a way that takes a school bus out of compliance with a FMVSS requirement. For example, FMVSS No. 121 specifies requirements for the time to apply and release the service brakes via the drivers treadle control. If the modifications to achieve functioning parking brakes resulted in a longer time to apply or release the service brakes that exceeded the FMVSS No. 121 requirement, the motor vehicle repair business would be in violation of the aforementioned section.

Crossing Control Arms

No FMVSS specifies crossing control arms on a school bus. NHTSA had considered requiring crossing control arms on school buses to reduce the risk of school buses striking student pedestrians, but decided against doing so:

After reviewing these comments [public comments on an advance rulemaking notice], the agency has determined not to propose requiring these devices on school buses. The agency notes that a crossing control arm does not provide school bus drivers with a positive means for detecting the presence of a pedestrian. Instead, a crossing control arm merely offers a backup device to help keep children in areas more easily observable by the driver. The agency believes that improving mirror systems offers a larger potential benefit to improving school bus pedestrian safety. Nevertheless, States which favor this device should continue to install them on school buses.

See 56 FR 20171, at 20178; May 2, 1991, copy enclosed. Thus, a State requirement for crossing control arms on public school buses would not be preempted.

State Liability Issues

Further, you expressed concern about "potential liability" that could be associated with this proposed legislation. Since the proposed legislation would amend Georgia law, any liability issues would be determined by Georgia law. I would suggest that your organization consult with an attorney knowledgeable about this aspect of Georgia law for advice on potential liability issues.

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 at (202) 366-2992.

Sincerely,
Jacqueline Glassman
Chief Counsel
Enclosure

ref:VSA#571.3

d.8/2/02