Interpretation ID: nht95-3.27

TYPE: INTERPRETATION-NHTSA

DATE: June 27, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: J. Gregory Studemeyer, Esq.

TITLE: NONE

ATTACHMT: ATTACHED TO 1/5/95 LETTER FROM J. GREGORY STUDEMEYER TO NHTSA (OCC 10647)

TEXT: Dear Mr. Studemeyer:

This responds to your letter of January 5, 1995, to this agency and your telephone conversation with Walter Myers of my staff on June 12, 1995, regarding the school bus standards we administer. You asked whether "your agency or any other federal agency notifies educational institutions of these [school bus] requirements."

The answer is no. The National Highway Traffic Safety Administration (NHTSA) does not maintain data on all schools or school districts throughout the nation, and does not routinely communicate with individual schools or school districts. The agency does , however, attend and disseminate information at school bus meetings and conferences nationwide and publishes all changes in school bus requirements in the Federal Register. In addition, NHTSA works closely and frequently with state directors of pupil t ransportation with regard to school transportation matters. In South Carolina, that official is the Director, Office of Transportation, Department of Education, 1429 Senate Street, Room 512, Columbia, SC 29201. Their telephone number is (803) 734-8244, and their fax number is (803) 734-8624.

Also for your information please find enclosed a fact sheet prepared by this office summarizing Federal school bus safety requirements. If you have any further questions or need additional information, please feel free to contact Walter Myers of my staf f at this address or at (202) 366-2992.

Enclosure

FEDERAL SCHOOL BUS SAFETY REQUIREMENTS

The National Highway Traffic Safety Administration (NHTSA) defines a bus as a motor vehicle designed to carry more than 10 persons, and a school bus as a bus that is sold or introduced into interstate commerce "for purposes that include carrying students to and from school or related events." Excluded are buses operated as common carriers in urban transportation. See 49 Code of Federal Regulations (CFR) 571.3.

In interpreting those provisions, NHTSA has looked to the nature of the particular institutions purchasing the buses. If the central purpose of the institution is the education of preprimary, primary, or secondary school students, including Head Start p articipants, whom NHTSA considers preprimary students, the buses must comply with all Federal motor vehicle safety standards (FMVSS) applicable to school buses. The FMVSSs are found in 49 CFR 571.101 through 571.304.

If, on the other hand, the institution is primarily custodial in nature, such as a nursery or day care center, or is concerned primarily with the education of post-secondary students such as college students, adult education or post-high school vocationa l students, the buses need not comply. Similarly, if transporting children to and from Sunday school or religious services, or if transporting athletic teams that have no connection to a school, the vehicles need not comply. However, if the vehicles ar e purchased to transport vocational students or athletic teams connected with preprimary, primary, or secondary schools or to transport students to or from such schools operated by a church, such as parochial schools, the vehicles would be required to co mply.

It is a violation of Federal law for any person knowingly to sell or lease as a school bus any new vehicle that does not comply with all FMVSSs applicable to school buses. The onus is on the seller or lessor to ascertain the intended use of the vehicle, and the seller/lessor is subject to substantial penalties for knowingly selling or leasing a noncomplying vehicle for use as a school bus, including civil fines and injunctive sanctions. These requirements do not apply to used vehicles.

Under Federal law, the purchaser or user of a vehicle is not under the same legal constraints as the seller. Since Federal law applies only to the manufacture and sale of new vehicles, a school may purchase and use any vehicle it chooses, whether new or used and without regard to whether it complies with Federal school bus standards, to transport its students. In addition, Federal law does not require the school to retrofit an existing vehicle to bring it into compliance with Federal standards. A sta te, however, may prescribe requirements relating to the use of school buses, including requirements for retrofitting or for operation and maintenance. The only Federal constraint on a state is that the state may not prescribe a standard for new vehicles covering the same aspect of performance as a Federal standard unless the state standard is identical to the Federal standard.

Finally, although not required by Federal law, NHTSA strongly recommends that only vehicles meeting Federal school bus safety standards be used to transport school children. See Highway Traffic Safety Program Guideline No. 17, Pupil Transportation Safet y, 23 CFR 1204. Further, NHTSA cautions that the use of vehicles that do not comply with Federal school bus safety standards to transport school children could result in increased liability in the event of an accident. That is a matter of state law, ho wever, so school districts should consult their attorneys and/or insurance carriers before transporting students in non-complying vehicles.