Interpretation ID: 18328a.drn
Mary Johnston, Esq.
Metropolitan Government of
Nashville and Davidson County
Department of Law
204 Courthouse
Nashville, TN 37201
Dear Ms. Johnston:
This responds to your letter and telephone call asking about our school bus regulations. I apologize for the delay in responding.
Your letter asks the following:
If a new multipurpose passenger vehicle (van) with a capacity of ten (10) persons(1) . . . is purchased by a private company to transport school children (under a contract with a school system) and remodeled, by removing seats and installing restraint systems for wheelchairs, to carry four wheelchairs, is this sale permissible under federal regulation?
If the above occurs but the remodeling creates two wheelchair spaces and two passenger seats, is this permissible under federal regulations?
In a telephone conversation with Dorothy Nakama of my staff, you stated that you did not know whether the modification would be made by the dealer that sells the new vehicle or the purchaser (which will provide the transportation under a contract with the school).
By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards applicable to new motor vehicles. 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. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" as any vehicle that is designed for carrying a driver and more than 10 passengers and which, 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.
One of the factors used by NHTSA in determining vehicle types is seating capacity. The agency determines whether a vehicle is a "bus" or a "multipurpose passenger vehicle" (MPV) based in part on the vehicle's passenger seating capacity. NHTSA determines a vehicle's seating capacity by counting the number of "designated seating positions" in the vehicle. That term is defined in 49 CFR 571.3 of our regulations. The term was amended in 1996 to address school bus modifications involving the removal of seats.
Prior to March 1996, NHTSA considered each position for securing a wheelchair on a school bus as one designated seating position (DSP). That interpretation of DSP had a significant impact on whether some vehicles were classified as MPVs or as school buses. When seats were removed from a bus to place wheelchair securement devices on the vehicle, and the seating capacity of the vehicle was reduced to 10 or fewer persons, the classification of the vehicle changed from a bus to an MPV. The vehicle was an MPV even if the vehicle prior to modification had been a school bus and was to be used after the modification as a school vehicle.
The agency undertook rulemaking to afford students in wheelchairs the school bus protection provided to students transported in other school buses. The 4-to-1 ratio of DSPs to wheelchair positions was based on information that 4 DSPs are typically removed for each wheelchair location installed on a bus.
Accordingly, NHTSA amended the DSP definition at 49 CFR 571.3, to state, in pertinent part:
* * *
For the sole purpose of determining the classification of any vehicle sold or introduced into interstate commerce for purposes that include carrying students to and from school or related events, any location in such vehicle intended for securement of an occupied wheelchair during vehicle operation shall be regarded as four designated seating positions.
Turning to your question, if a dealer modifies a new multipurpose passenger vehicle before delivery, by removing seats and installing 4 wheelchair restraint systems, the dealer would be an "alterer" under our regulations (49 CFR 567.7). The dealer must place an alterer's label on the altered vehicle, including a statement that the vehicle, as altered, conforms to all applicable safety standards. As altered, the school vehicle would be a "school bus," given its designated seating positions (17) and pupil transportation purpose. The vehicle would have to be certified as meeting Federal school bus standards.
If the MPV were modified after the first sale by a motor vehicle manufacturer, dealer, distributor or repair business, certain restrictions apply. These entities are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not knowingly remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. The business may remove the seats and install the wheelchair retaining devices if the modifier does not knowingly reduce the performance of compliant systems. The businesses would not be required to ensure that new systems they install on the used vehicle (that are wholly independent of existing systems) perform to the school bus safety standards. However, NHTSA would encourage the modifier to make sure the new systems adequately performed. For example, we would recommend conforming the wheelchair locations to the requirements for wheelchair securement anchorages in Standard 222, "School Bus Passenger Seating and Crash Protection" (see S5.4.1 of 49 CFR 571.222).
If the private company you refer to modifies its own vehicle, there is no Federal certification requirement. Owners may modify their own vehicles without needing to meet Federal safety standards. In addition, the "make inoperative" prohibition of 49 U.S.C. 30122 does not apply to modifications to a vehicle made by its owner. Again, however, we would encourage the owner to ensure that it modifies its vehicles in ways that provide adequate levels of safety performance. Please also note that since Tennessee State law may regulate how an owner may modify its own vehicles, you should review State law to see if it addresses owners' modifications of their school vehicles.
A vehicle with two wheelchair positions and two passenger seats would be considered a school bus, if altered and sold as a new vehicle. The vehicle would be considered to have a seating capacity of 11 persons (4 DSPs per wheelchair position, plus two passenger seats and the driver's seating position). The requirements that apply to this modification are the same as those discussed in our answer to your first question.
Please note that Federal law and NHTSA's safety standards directly regulate only the manufacture and sale of new motor vehicles, not their use. Because States have the authority to regulate the use of vehicles under State law, you should review the law of Tennessee to see if it addresses how school children who use wheelchairs must be transported.
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 by telephone at (202) 366-2992.
Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA#571.3
d.3/30/99
1. A multipurpose passenger vehicle is designed to carry 10 or fewer persons, counting the driver. Accordingly, we did not include the driver, as you had, because counting the driver's position results in a carrying capacity of 11 persons.