Interpretation ID: 17678.drn
Greg Balmer, Esq.
Staff Counsel
YMCA of the USA
101 North Wacker Drive
Chicago, IL 60606
Dear Mr. Balmer:
This responds to your letter concerning dealers' refusals to sell 15-passenger vans to YMCAs that drop off and pick up school children from school. You ask for clarification of the circumstances when buses are considered "school buses" under Federal law. As explained below, a new bus sold or leased to a YMCA that will use the bus on a significant basis to transport school children to or from school is a "school bus" and must meet Federal motor vehicle safety standards for school buses.
Your letter states the following:
Many YMCAs offer child care and after-school programs for school-aged children and use passenger vans to either drop off or pick up the children from school. Dealers are classifying this use as one of a school bus, and are refusing to sell or lease passenger vans to YMCAs, despite the fact that YMCAs are not schools and that YMCA child care and after-school programs are, under traditional definitions, primarily custodial, and not educational, in nature.
Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Under our regulations, a "bus" is any vehicle, including a van, that has a seating capacity of 11 persons or more. Our statute defines a "school bus" as any bus which is likely to be "used significantly" to transport "preprimary, primary, and secondary" students to or from school or related events (emphasis added). 49 U.S.C. 30125. A 15-passenger van that is likely to be used significantly to transport students is a "school bus."
If a dealer sells or leases (e.g., leases on a regular or long-term basis), a new bus to transport students, the vehicle is a "school bus" and must meet the National Highway Traffic Safety Administration (NHTSA's) school bus standards. Conventional 15-passenger vans are not certified as doing so, and thus cannot be sold or leased, as new vehicles, to carry students on a regular basis.
As you are aware, in an interpretation letter of November 20, 1978, to DeKalb Rental/Leasing, Inc. (copy enclosed), NHTSA determined that YMCAs are not schools. In instances where a new bus purchased by a YMCA is not used for transportation "to or from school," or a school-related event (e.g., if the bus will be used only for YMCA summer camps, or YMCA weekend activities where there is no transportation to or from school), a dealer would not be required to sell a school bus.
However, the situation raised in your letter is different. The pertinent issue is not whether the YMCA is a school, but whether the bus will be "significantly" used to transport school children "to or from" school (as described in Section 30125). If the bus will be used for such purpose, a school bus must be sold, regardless of whether such transportation is provided by a "school," a day care facility, or any other entity.
We find it appropriate to address whether buses are "used significantly" to transport students on a case-by-case basis, focusing on the intended use of the vehicle. Your letter states that "[m]any YMCAs offer child care and after-school programs for school-aged children and use passenger vans to either drop off or pick up the children from school." Children attend school five days a week. After-school programs are presumably also offered five days a week. YMCA buses are therefore presumably providing school children with transportation to or from school five days a week or nearly at that rate. NHTSA considers such recurring and consistent use of the YMCA buses to transport students "to or from school" (even if the same students are not transported each day), to constitute a "significant" use of the vehicle. Therefore, it is our position that, when selling or leasing new buses to any child care facility (including YMCAs) for the purpose of taking students to or picking students up from school, dealers must sell or lease buses that meet the Federal motor vehicle safety standards applicable to "school buses."(1)
NHTSA believes that school buses are one of the safest forms of transportation in this country, and therefore strongly recommends that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. Further, using 15-passenger vans that do not meet the school bus standards to transport students could result in increased liability in the event of a crash. You may want to check with state laws governing private tort liability and consult with your insurance carriers for further information on this issue.
I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama at this address or by telephone at (202) 366-2992.
Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
d.7/17/98
ref:VSA#571.3 "school bus only"
1. As you may be aware, in interpretation letters of May 29, 1991 and September 6, 1991 to Ms. Vel McCaslin, Director of Grace After School, an after school care program, NHTSA stated that buses used to transport children to Ms. McCaslin's program would be "school buses" only if the program is a "school or school-related event." The September 1991 letter indicated that the program picks up children from three area schools and brings them to the church on a "daily" basis. These letters concluded that Grace After School did not appear to be a "school," that the program was not a "school-related event" and that NHTSA's school bus requirements thus did not apply. NHTSA has recently reexamined the two letters to Ms. McCaslin. Upon reconsideration, we have decided that the letters to Ms. McCaslin did not focus enough on the fact that the buses were being used to transport school children "from school," as specified in 49 U.S.C. 30125. Therefore, to the extent the May 29, 1991 and September 6, 1991 letters to Ms. McCaslin are inconsistent with this letter, they have been superceded.