Interpretation ID: 86-1.15

TYPE: Interpretation-NHTSA

DATE: January 31, 1986

FROM: Erika Z. Jones -- Chief Counsel, NHTSA

TO: Clennie H. Murphy, Jr. -- Acting Associate Commissioner, Head Start Bureau

TITLE: School Bus Regulations of the NHTSA and Head Start Buses

ATTACHMT: Attached to letter dated 9/27/85 from Jeffrey R. Miller to Charles Pekow; Also attached to letter dated 8/21/92 from Paul J. Rice to Chuck Anderson (A39; VSA 103 (i))

TEXT:

The purpose of this memorandum is to comment on the draft memorandum you provided us which discusses our requirements under Highway Safety Program Standard No. 17, Pupil Transportation Safety, to further clarify our regulations for school buses.

On October 25, 1985, Mr. Hilton Baines, Program Director for Region VII, Department of Public Health and Human Services, requested information from you on the applicability of HSPS No. 17 to Head Start programs. Mr. Baines referred to a "Day Car U.S.A." newsletter which stated that, in 1977, NHTSA determined that buses used to transport children to and from Head Start facilities are considered school buses and must meet all Federal school bus safety standards. This statement is essentially correct. However, in continuing its discussion of NHTSA's requirements, the newsletter expanded on the requirements of "Standard 17," without properly distinguishing a discussion of this standard from the "Federal school bus safety standards" to which it had referred previously. In so doing, the newsletter implied that NHTSA requires buses used by Head Start facilities to meet all requirements of Highway Program Standard No. 17. Mr. Baines asked whether NHTSA does indeed require this of Head Start buses.

Unfortunately, the implication made in the newsletter is misleading. Its determination that HSPS No. 17 is binding on Head Start buses apparently resulted from confusing two separate sets of regulations for school buses that were issued by NHTSA under different Acts of Congress. Our motor vehicle safety standards for school buses ("the Federal school bus safety standards") were issued under the authority of the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C 1381 et seq.; hereinafter "the Vehicle Safety Act"), while HSPS No. 17 is part of the series of highway safety program standards NHTSA promulgated under the Highway Safety Act of 1966 (23 U.S.C. 401-408). Both sets have requirements for school buses, but differ in their application.

The Vehicle Safety Act authorizes NHTSA to issue motor vehicle safety standards for new motor vehicles and motor vehicle equipment. In 1974, Congress amended that Act to direct NHTSA to issue motor vehicle safety standards for various aspects of school bus performance, including emergency exits, windows and windshields, seating systems, and crashworthiness of bus body and frame. The school bus safety standards we issued became effective April 1, 1977, and apply to each school bus manufactured on or after that date. Those standards, together with the other motor vehicle safety standards issued by NHTSA, are set forth in 49 C.F.R. Part 571.

In the 1974 amendment to the Vehicle Safety Act, Congress also directed NHTSA to establish a regulatory definition of "school bus" which encompasses buses which are significantly used to transport "primary, preprimary, or secondary school students" to or from such schools or related events. Our definition of a "school bus" is set forth in Title 49 of the Code of Federal Regulations Part 571.3(b). Under our definitions, a vehicle designed for carrying 11 or more persons (including the driver) is a "bus," and is a "school bus" if sold for school-related events. Head Start centers, whose functions are primarily educational, are considered by NHTSA to be "preprimary schools" falling under the ambit of the Vehicle Safety Act.

The Vehicle Safety Act applies to the manufacture and sale of new motor vehicles, and prohibits the manufacture and sale of any new motor vehicle or item of motor vehicle equipment that does not conform to applicable motor vehicle safety standards. It requires persons selling new buses to schools to ensure that the vehicle complies with all Federal safety standards for school buses. Since Head Start facilities are considered to be "schools," any person selling a new bus (i.e., a motor vehicle designed to carry 11 or more persons) to such schools must sell a complying school bus. If any new bus does not meet those standards, the seller may be required to recall the vehicle and to pay civil penalties. The Vehicle Safety Act, however, does not apply to motor vehicle use, and therefore does not require Head Start centers to USE school buses that comply with the Federal school bus safety standards. The requirements governing the USE of a motor vehicle after it is sold is a matter of state law.

As your draft memorandum stated, NHTSA issued Highway Safety Program Standard (HSPS) No. 17 under the authority of the Highway Safety Act. The standard contains a number of recommendations to the states covering pupil transportation operations, and applies to state highway safety programs receiving Section 402 funds. However, while the requirements of the Vehicle Safety Act are Federal requirements imposed on school bus sellers regardless of state law implementation, NHTSA has provided the states some discretion in adopting HSPS No. 17. A state might be receiving S402 funds under the Highway Safety Act even though its highway safety program requirements for pupil transportation are not identical to those of Standard No. 17.

The applicability of HSPS No. 17 to Head Start center vehicles depends on State adoption of that standard. Individual states have chosen to adopt some or all of the requirements of HSPS No. 17 as part of their own highway safety programs, and a state might have requirements patterned after the recommendations of HSPS No. 17 for the use of school vehicles, including Head Start buses. Those requirements might apply to a Head Start center even though the center might not be a direct recipient of S402 funds. Therefore, the regulations for school vehicle use are those set by the individual states, and a particular state's requirements would determine the operational standards for Head Start center vehicles operating in that state.