Interpretation ID: 24388.drn

Mr. Brian Barrington
President
Liberty Bus, Inc.
P.O. Box 449
Lima, OH 45802-0449

Dear Mr. Barrington:

This responds to your letter requesting information about sales of your companys vehicles to child care centers. You explain that your company manufactures new vehicles that meet the school bus crashworthiness Federal motor vehicle safety standards, but do not have the school bus flashing lights and stop arms. You wish to know whether child care providers may purchase and use these vehicles.

By way of background, it might be helpful to keep in mind that Federal law restricts the types of new buses that may be sold for school transportation purposes but does not restrict the use of vehicles. Your customers State laws regulate how school age children in a State are to be transported. NHTSA has revised its interpretation of "school" to exclude Head Start Programs. However, sales of new buses to child care centers that provide transportation to or from school must involve a school bus.

Sales of New Buses to Child Care Centers

Your question regarding sales of new buses to child care centers has been addressed for the most part in the enclosed interpretation letter of May 9, 2001, to Collins Bus Corporation (Collins letter). In the Collins letter, we explain dealers responsibilities in selling new buses to day care centers that will be using the vehicles to transport children to or from schools. All the enclosures mentioned in the letter are provided.

The Collins letter discusses prohibitions on sales of new buses that do not meet the National Highway Traffic Safety Administrations (NHTSAs) school bus standards. Briefly, any person selling a new 'school bus" must sell a bus that meets our school bus standards. 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 (49 CFR 571.3(b)).

NHTSAs longstanding position has been that day care centers in and of themselves are not 'schools" within the meaning of our statute because of their primarily custodial, rather than educational, emphasis. However, when a day care center is providing transportation to or from school or school- related events, then the transportation constitutes the described action-- transporting students to or from school--contemplated by the statute. In a letter of July 23, 1998, to Mr. Don Cote of Northside Ford (copy enclosed), we advised that when a dealership sells or leases a new bus to a child care facility to drop off and pick up school children from school "on regular school days," the dealership must sell or lease only a bus that meets the Federal motor vehicle safety standards for school buses.

The Collins letter stated that NHTSA currently does not presume that day care centers universally are engaged in the transportation of children to or from school. However, where the purchaser or lessor of a new bus is a day care center, in light of the widespread publicity that has surrounded the issue, we expect a dealer to inquire as to whether the vehicle would also be used to drop off or pick up students from school. If it appears that a vehicle will be used significantly for student transportation, the requirement to sell a certified school bus that meets the Federal motor vehicle safety standards for school buses would apply.

Sales of New Buses to Head Start Programs

Your letter also stated: "Head Start and Child Care providers operate vehicles under identical conditions. In other words, children are picked up and released off of thoroughfares and usually in parking lots and drive ways." For these reasons, you ask whether you can sell to child care centers an "allowable alternate vehicle" (AAV) as defined by the Head Start Bureau. The answer is no.

Head Start defines an AAV as "a vehicle designed for carrying eleven or more people, including the driver, that meets all the Federal Motor Vehicle Safety Standards applicable to school buses, except 49 CFR 571.108 and 571.131." (See 45 CFR Section 1310.3) Standard No. 108 (49 CFR 571.108) establishes requirements for lamps and associated equipment, and Standard No. 131 (49 CFR 571.131) establishes requirements for stop arms.

Sales of new buses to child care centers that provide to and from school transportation can be distinguished from sales of new buses to Head Start Programs. The latter type of sale has been the focus of recent Congressional and administrative action that have led us to reconsider our previous determinations in this area. In an interpretation letter of August 3, 2000 to Helen H. Taylor, Associate Commissioner of the Head Start Bureau (copy enclosed), NHTSA agreed to Head Starts request to revise our interpretation of "school" to exclude Head Start Programs. NHTSA made this revision after being informed that in 1998, Congress amended section 636 of the Head Start Act by employing the term "school readiness," thereby distinguishing Head Start Programs from school programs. In the letter to the Head Start Bureau, NHTSA stated in part:

Accordingly, we are revising our interpretation of "school" to exclude Head Start. Consistent with the evident intent of section 636, we conclude that a Head Start agency is not operating a "school" for the purposes of the Vehicle Safety Act. This means that buses sold to transport children to and from a Head Start site will no longer be required under the Vehicle Safety Act to meet the Federal motor vehicle safety standards applicable to school buses. In revising our interpretation, we act with the knowledge that HHS intends to implement a rule requiring that Head Start children be transported in vehicles meeting the Federal school bus safety standards other than those for traffic control devices. This will serve to ensure the childrens safety.

As you are aware, in a final rule of January 18, 2001, the Head Start Bureau established 45 CFR Part 1310, Head Start Transportation, which includes the definition of "allowable alternate vehicle."

Conclusion

Sales of new buses to child care centers that provide to and from school transportation have not been affected by the recent Congressional activity on Head Start buses. Sales of new buses to child care centers to transport students to or from school are still subject to the Vehicle Safety Act mandate to sell complying school buses. However, you may be interested to know that on March 21, 2001, NHTSA granted a petition from the Rabun-Gap Nacoochee School of Rabun-Gap, Georgia, to conduct a rulemaking proceeding to create a new school bus classification known as the "school activity bus." The petitioner asked that this classification "consist of buses which are used for transporting school children to or from school related activities, but are not used to transport children between home and school." Among other issues, the petitioner asked that school buses meeting this new category be exempted from the requirement for school bus warning lights (S5.1.3 of Standard No. 108) and the requirement for school bus pedestrian safety devices (Standard No. 131). The agency is presently in the rulemaking process.

I hope this information is helpful. If you have any further questions about NHTSA's programs, please feel free to contact Dorothy Nakama at this address, or at (202) 366-2992.

Sincerely,
Jacqueline Glassman
Chief Counsel
Enclosures
ref:VSA#571.3
d.6/14/02