Interpretation ID: 18715.drn

Ms. Jean Little
Creative Child Care, Inc.
313 Harwood Road, Suite 100
Bedford, TX 76021

Dear Ms. Little:

This responds to your letter regarding the application of a law commonly known as the National Traffic and Motor Vehicle Safety Act (Safety Act) to the sale of new, large vehicles to child care centers that transport school children to and from school. As indicated by your letter, you are aware that in our view the sale of the vehicles is subject to the Safety Act. However, you disagree with our views.

At the outset, you state that you do not believe that the Safety Act (specifically, sections 30112 and 30125 of Title 49, United States Code) was intended to apply to vehicles other than those used in transportation by educational institutions. We do not agree with your position. The National Highway Traffic Safety Administration (NHTSA) is authorized to regulate the manufacture and sale of new vehicles. One class of vehicles specifically addressed by the Act is school buses. Persons selling new "school buses" must sell vehicles that are certified as meeting Federal motor vehicle safety standards applicable to school buses. Whether a vehicle is a "school bus" depends on the nature of the vehicle and the use -- whether the vehicle is likely to be used significantly to carry students to or from school or related events. Of particular significance in the context of your letter, the statute is not limited in its application to transportation used by educational systems. If a significant use of a bus is for transporting children to or from school, the vehicle is a school bus, regardless of whether the purchaser is a child care facility.

You also propose a delineation between a "student" and a "child" based on when the person leaves the building, grounds, activity or transportation of the educational system. That distinction is not supported by the statute. As stated above, the Safety Act defines a "school bus" as any vehicle that is designed for carrying a specified number of persons or more which is likely to be "used significantly" to transport preprimary, primary, and secondary students "to or from school or an event related to school" (emphasis added). 49 U.S.C. 30125. Therefore, the relevant inquiry focuses on the use of the vehicle to transport such persons to or from school or an event related to school, not on the status of being within or having departed from the educational system.

You ask how NHTSA's requirements would apply to private citizens driving "a vehicle designed to carry 10+ passengers to pick up and deliver [their] children to school every day." Our regulations would not apply in this situation. As explained as long ago as April 25, 1986, in our letter to Mr. Arnold Spencer (copy enclosed), the statutory requirement on sellers to sell school buses does not apply to privately-owned family vehicles.

We need not resolve whether child care facilities simply providing custodial care are schools under laws other than the Safety Act. The critical issue, that of regulation under the Safety Act, has little to do with the nature of the institution. The resolution of NHTSA's jurisdiction turns on the use of the vehicle. We do not see how the resolution of NHTSA's jurisdiction has any bearing on whether a child care facility is a school under State or other law.

I should add that NHTSA's safety standards directly regulate the manufacture and sale of new motor vehicles, not their use. Each State is free to impose its own standards regarding use of motor vehicles, including school buses. For information on Texas' requirements on transportation of school children, you can contact Texas's State Director of Pupil Transportation:

You also asked about safety differences between 10+ passenger vans and school buses. Both 10+ passenger vans and school buses must meet all Federal motor vehicle safety standards applicable to buses. School buses must meet additional safety standards.

In closing, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to "significantly" transport school children be certified as meeting NHTSA's school bus safety standards. Further, using 10+ passenger vans that do not meet the school bus standards to transport students could result in increased liability in the event of a crash. Since such liability would be determined by State law, you may wish to consult with your attorney and insurance carrier for advice on this issue.

I hope this information is helpful. I apologize for the delay in responding. I am also enclosing our publication, "School Bus Safety: Safe Passage for America's Children." 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
Enclosures
ref:VSA#571.3
d.4/2/99