Interpretation ID: 19392A.DRN

The Honorable Doug Bereuter
U.S. House of Representatives
Washington, DC 20515-2701

Dear Congressman Bereuter:

Thank you for your letter regarding child care centers that have found it difficult to purchase vehicles to transport children to and from school and school-related activities. You have forwarded a letter from Ms. Gina Dunning, Director of the Regulation and Licensure Division of the Nebraska Department of Health and Human Services, on this issue. Ms. Dunning has separately written to Mr. Frank Seales, Jr., our Chief Counsel at the National Highway Traffic Safety Administration (NHTSA), and Mr. Seales has replied to her successor. A copy of his letter is enclosed.

We have been working to ensure that our school bus safety program provides the safest possible vehicles for children, consistent with our statutory mandate. Among other things, we have been working with the organizations conducting after-school programs and with the vehicle manufacturers to find a satisfactory solution.

In your letter, you ask first whether the regulation pertaining to vehicles used to transport children to and from school was the product of the 1974 amendment that required the agency to issue the school bus standards. To answer, I must give you a brief background on the applicable law. The 1974 amendment, now codified as 49 U.S.C. 30125, defines a school bus as

[a] passenger motor vehicle designed to carry a driver and more than 10 passengers, that the Secretary of Transportation decides is likely to be used significantly to transport preprimary, primary, and secondary school students to or from school or an event related to school.

This definition has not changed since 1974. The current controversy arose as the result of the agency's application of this definition to specific situations involving vehicles sold to after-school programs. In two 1991 interpretations, our Chief Counsel stated that a vehicle sold to an organization providing after-school programs did not have to meet the school bus standards (letters to Vel McCaslin of Grace After School, May 29, 1991, and September 6, 1991). When the issue was raised again, in 1998, the Chief Counsel reexamined the McCaslin interpretation and concluded that it did not consider the statutory terms "to or from school" and was thus erroneous. In a letter to Don Cote of Northside Ford on July 23, 1998, the Chief Counsel concluded that it was the use of the vehicle (i.e., whether it was used to transport children to and from school), not the identity of the purchaser (i.e., whether it was a school) that determined whether the vehicle had to be a school bus. In response to a letter from the National Child Care Association, the Chief Counsel confirmed this interpretation in a letter of September 17, 1998. Copies of these letters are enclosed.

The Cote letter expressly overruled the McCaslin letter, and has had the effect of prohibiting motor vehicle dealers from selling 12-15 passenger vans that do not meet the school bus standards to any organizations that intend to use the vans to transport children to and from school. It is this prohibition that has caused Ms. Dunning and others to become concerned about the availability and cost of vehicles for these organizations.

We believe the Cote letter correctly applies the law, but we do not believe that it will have the consequences that organizations providing after-school programs have feared. The law does not affect organizations that provide custodial care and do not transport children to or from school or an event related to school. Since the law applies to dealers, not purchasers, it does not affect the ability of these organizations to continue to use the vehicles they now own, so they are not faced with the immediate need to replace their current vehicles. They can accordingly make plans to acquire vehicles that meet school bus standards on their normal replacement schedule. We would be glad to discuss these issues further with Ms. Dunning's successor and others in Nebraska.

We have examined the issues of cost and availability. Our inquiries to the vehicle manufacturers indicate that while school buses are somewhat more expensive than large vans, the difference is not so large that it should prevent after-school programs from acquiring school buses. The cost range for 15-passenger school buses is approximately $29-31,000, compared to $25-28,000 for 15-passenger vans. The leadtime required for delivery of a school bus may be two or three months longer than for a large van, but this should not present a problem for organizations that follow a systematic plan for vehicle replacement.

You expressed concern whether "children are indeed safer being transported by school buses than commercial vans," and indicated that while that might have been true in 1974, vans are safer today than they were in 1974. All motor vehicles, including passenger vans and other buses, must meet higher safety standards today than they did in 1974. Nevertheless, children are still much safer when transported by school bus, than by passenger van or passenger car. This point is illustrated in the enclosed NHTSA publication "School Bus Safety: Safe Passage for America's Children." Page 12 of the publication shows how safety is enhanced for school buses, with a table summarizing the Federal motor vehicle safety standards applicable to school buses. Passenger vans are not required to meet the described safety enhancements.

Your third question asked about enforcement actions NHTSA has conducted on this issue. In response to this question, I am enclosing a NHTSA press release of March 18, 1998, describing enforcement actions taken against dealers who illegally sold or leased new vans that were used as school buses. The press release lists dealers that were sanctioned and the civil penalties assessed against each dealer. NHTSA currently is engaged in investigations of other dealers that may have sold new buses that do not meet NHTSA's school bus standards to schools.

You also wish to know whether there is a study or any evidence showing that "commercial vans" built in the past two years are safer than those built in 1974. The Federal motor vehicle safety standards have been substantially amended since 1974. As a result, passenger vans and other vehicles built today generally must meet higher safety standards than they did in 1974. Nonetheless, vehicles that meet the school bus safety requirements have safety enhancements that passenger vans do not have, such as improved crash protection requirements and better body joint strength protection.

NHTSA has a very strong focus on child safety in transportation, and, to the extent it can statutorily do so, is doing its best to facilitate school bus purchases for those child care centers that want to purchase school buses for their school-aged children. As I noted above, our information indicates that the cost difference between a 15-passenger van and a small school bus is not significant. The agency is currently seeking information to further analyze the cost issue. We are also currently working with our partners in state and local communities, and in the school bus industry, to see what can be done to reduce the time between a school bus order and its delivery.

For your information, because of the increasing number of pre-school aged children being transported by school buses and the pupil transportation community's request for guidance on how to safely transport these children, NHTSA released a February1999 Guideline for Transporting Pre-school Aged Children in School Buses. A copy of this document is enclosed for your information.

I hope this information is helpful. If you have any further questions, please feel free to contact me.

Sincerely,
Ricardo Martinez, M.D.
Enclosures (4 items)
ref"VSA#571.3