Interpretation ID: nht76-5.52
DATE: 06/15/76
FROM: AUTHOR UNAVAILABLE; F. Berndt; NHTSA
TO: Topeka Metropolitan Transit Authority
TITLE: FMVSS INTERPRETATION
TEXT: This responds to the Topeka Metropolitan Transit Authority's May 17 and 18, 1976, letters asking whether the National Highway Traffic Safety Administration's (NHTSA) definition of school bus or its Standard No. 222, School Bus Passenger Seating and Crash Protection, prevent the utilization of transit buses to transport students to and from school. You ask if a proposed amendment to Kansas statutes would conflict with Federal law or regulation if it exempts transit buses from a requirement that school bus seating be forward-facing.
Section 103 (d) of the National Traffic and Motor Vehicle Safety Act (the Act) (15 U.S.C. @ 1392 (d)) does preempt State motor vehicle safety requirements of general applicability that are not identical to a Federal standard applicable to the same aspect of performance. In this case, the proposed section 10 appears to be identical to S5.1 of Standard No. 222 insofar as it addresses the direction in which school bus seating must face. It is the opinion of the NHTSA that this portion of the proposed section 10 would therefore not be preempted by Standard No. 222.
The second portion of section 10 provides an exception to the requirement for forward-facing seats, and it is the NHTSA's opinion that the exception is preempted insofar as it might apply to school buses purchased by a metropolitan transit authority after the October 26, 1976, effective date of Standard No. 222.
In the case of transit buses "designed and sold for operation as a common carrier in urban transportation," however, the exception does not apply to an aspect of performance regulated by a motor vehicle safety standard (i.e., the orientation of seating in transit buses). It would therefore not appear to be preempted by any Federal motor vehicle safety standard.
The NHTSA recently considered inclusion of transit buses in the definition of "school bus" but concluded that Congress' intent in broadening the definition of "school bus" did not address inclusion of transit buses involved in student transportation. I have enclosed a discussion of this issue that accompanied the redefinition of "school bus."
As you noted in your letter, Highway Program Safety Standard No. 17, Pupil Transportation Safety (23 CFR 1204), provides for the transportation of students in school buses and in transit buses.
SINCERELY,
TOPEKA METROPOLITAN TRANSIT AUTHORITY
May 18, 1976
Frank Berndt Chief Counsel U.S. Department of Transportation National Highway Traffic Safety Administration
As Chairman of the Topeka Metropolitan Transit Authority please accept this cover letter to the attached legal request. Let me simply emphasize to you that the question of federal preemption has arisen from all quarters on the State and local level, revelant to our transit authority providing service to the local school board. Your response to our inquiry is of first importance and we appreciate your attention to this matter.
David L. Ryan Chairman
TOPEKA METROPOLITAN TRANSIT AUTHORITY
May 17, 1976
Frank Berndt Chief Counsel U.S. Department of Transportation National Highway Traffic Safety Administration
The Topeka Metropolitan Transit Authority would appreciate an opinion from your office with respect to the use of urban mass transit vehicles in special school route service and school related charter activities.
The Topeka MTA approached the Kansas Legislature in an effort to modify existing and proposed Kansas law so that it would be made clear that our buses can legally provide school related services. Basically our suggestions to the lawmakers would have changed state law so that it was more in line with federal provisions. However, the Director of Highway Safety for the Kansas Department of Transportation contended that the Transit Authority's position was in direct violation of federal law.
The Topeka Metropolitan Transit Authority believes that federal law allows urban mass transit vehicles to work with local school boards in solving their transportation problems. Please review the enclosed copy of the letter by Mr. Merrell, Kansas Director of Highway Safety, and the copy of our letter responding to such a position.
Needless to say, the view taken by the state agency is adversely affecting our revenue from school related services. The publicly supported transit system should be able to provide a variety of public services.
If you have any questions, please do not hesitate to contact me. Your cooperation will be appreciated.
Michael D. Hood Legal Intern
KANSAS DEPARTMENT OF TRANSPORTATION
March 15, 1976
The Honorable Don E. Crumbaker Chairman, House Committee on Education
RE: House Education Committee Amendment to Senate Bill 623
Thank you for the opportunity this morning to discuss with you Senate Bill 623. As we discussed, problems arise regarding the amendment contained in Section 10 of the bill. The portion with which we are concerned is contained on page 10, lines 22 through 29, which follows in part;
Sec. 10. K.S.A. 8-2009 is hereby amended to read as follows; 8-2009. (a) All seats on school buses shall be forward-facing . . . except that the secretary may waive such requirement upon the request of a metropolitan transit authority established pursuant to article 28 of chapter 12 of Kansas Statutes Annotated.
The underscored portion above is the amendment added to the bill by House Committee.
The above amendment is in direct violation of Federal Motor Vehicle Safety Standard No. 222, "School Bus Seating and Crash Protection," which was issued on January 22, 1976.
Section 5.1 of the Standard states as follows; S5.1 Seating requirements. School bus passenger seats shall be forward facing.
The Federal Register of January 28, 1976 (acopy of which is enclosed) contains a discussion of the Standard, including the following on page 4017 and 4018;
"The NHTSA (National Highway Traffic Safety Association) designed the seating system in this Standard for protection from fore and aft crash forces, and considers it necessary that the seats be forward facing to achieve the objective of occupant protection."
In addition to the above objection to the amendment, we would also like to point out that a metropolitan transit authority bus may not also operate as a school bus to transport school children to or from school. Recently the NHTSA amended its definition of a school bus. (A copy of which is enclosed.)
The NHTSA concluded that it was in the public interest to continue to excluded buses used in urban transportation from coverage in the new school bus definition, as had been the case in the prior definition.
The NHTSA has repeated frequently that the States must develop long range plans for achieving full compliance with these requirements within a reasonable period of time. The amendment contained in SB623 takes a big step backwards in complying with federal standards. My office has been told by the NHTSA that any state which moves backward instead of forward in complying with the Federal Safety Standards faces the possibility of having federal funding cut or withheld. To avoid that possibility I respectfully request that the amendments to SB623, to which we have referred, be deleted from the bill.
JERRY L. MERRELL, Ph.D. Director of Highway Safety
ATTACHS.
TOPEKA METROPOLITAN TRANSIT AUTHORITY
April 9, 1976
Representative Ron Hein
The amendment to Senate Bill Number 623 referred to in the letter written by Mr. Jerry Merrell, Director of Highway Safety, Kansas Department of Transportation, to Representative Don Crumbaker, Chairman, House Committee on Education, does not violate federal law nor would it cause the Kansas Department of Transportation to lose federal money. That amendment would have allowed the secretary of transportation to waive the requirement that all seats in urban transit buses be forward facing when those vehicles are providing school charter service.
In 49 CFR 571.3 (b) the federal definition of "school bus" is given. That provision states:
"School bus" means a bus that is sold, or introduced in interstate commerce, for purposes that include carrying students to and from school or related events, but does not include a bus designed and sold for operation as a common carrier in urban transportation.
Federal Motor Vehicle Safety Standard No. 222, "School Bus Seating and Crash Protection," which becomes effective October 26, 1976, provides:
Sec. 5.1 Seating Requirements. School Bus passenger seats shall be forward facing.
Since this safety standard speaks to seats in school buses and urban transit vehicles are expressly excluded from the "school bus" definition, there is no federal requirement that all seats in urban mass transit vehicles must be forward facing when those buses are used for school charters.
Furthermore, federal law, by excluding urban transit buses from the school bus definition, did not intend to exclude urban transit vehicles from providing school charter service. In fact, Pupil Transportation Safety Standard No. 17, which sets forth certain requirements with respect to the identification, operation, and maintenance of school buses, specifically recognizes that, because of the dual role they often play, urban transit buses are exempt from certain of those requirements when used for special school route service.
Federal law, then, recognizes the important function served by urban transit vehicles in the overall picture of urban transportation. Although not a "school bus", urban buses are sanctioned to perform school related services.
Senate Bill No. 623, on the other hand, does not recognize the ability of urban transit vehicles to provide school services. By withholding authority from the secretary of transportation to waive seating requirements on urban transit buses when those buses are used for school related services, Kansas may without logical reason, effectively prevent their public transportation systems from working with schools in meeting important public needs.
In view of federal law, Kansas is not prevented from allowing its franchised, publicly supported bus systems the ability to provide school charter services.
Moreover, there is no logical reason to withhold such permission. The Topeka Metropolitan Transit Authority has identified that urban transit vehicles are not only as safe as, but safer than the traditional "school bus". School related service by the Topeka Metropolitan Transit Authority is in the public interest.
David L. Ryan Chairman
Robert N. Salmon General Manager
cc: SHAWNEE COUNTY DELEGATION MEMBERS; JERRY MERRELL, DIR. OF SAFETY, KANSAS DEPT. OF TRANSPORTATION; JIM GRAY, SUPT. OF SCHOOLS, U.S.D. 501