Interpretation ID: nht93-5.4

TYPE: Interpretation-NHTSA

DATE: July 1, 1993

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Ben F. Barrett -- Associate Director, The Legislative Research Department

TITLE: None

ATTACHMT: Attached to letter dated 6/7/93 from Ben F. Barrett to Office of Chief Counsel, NHTSA (OCC-8164)

TEXT:

This responds to your letter of June 7, 1993, in which you stated that a Kansas school district wants to use 15-passenger buses to transport school children, but does not want to cause those buses to meet the additional safety requirements applicable to school buses. You also stated that although the state definition of a school bus is the same as the Federal definition, it has been suggested that the state amend that definition to exclude 15-passenger vehicles. You asked our comments on the consequences of such legislation, including any sanctions, liability, or other issues that could result.

The National Traffic and Motor Vehicle Safety Act, 15 U.S.C. S1381, et seq. (Safety Act), defines a school bus as a passenger motor vehicle "designed to carry more than 10 passengers in addition to the driver, and which . . . is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools." This agency defines a bus as a motor vehicle "designed for carrying more than 10 persons," and a school bus is further defined as a bus that is sold "for purposes that include carrying students to and from school or related events." Thus, the 15-passenger buses to which you referred would clearly fall within the Federal definition of "school bus.

The Safety Act authorizes this agency to issue Federal motor vehicle safety standards which regulate the manufacture and sale of new motor vehicles. In the case of school buses, it is a violation of Federal law for any person to sell a new school bus that is not certified as complying with all applicable Federal safety standards. The onus is on the seller to ascertain the intended use of the new vehicle, and the seller is subject to substantial penalties for knowingly selling a noncomplying school bus, including civil fines and injunctive sanctions.

Section 103(d) of the Safety Act, 15 U.S.C. S1392(d) provides that no state shall maintain in effect any standard regulating an aspect of performance that is regulated by a Federal safety standard unless the state standard is identical to the Federal standard. If it is not, the Federal standard preempts the state standard unless the state standard imposes a higher level of safety and is applicable only to vehicles acquired solely for the state's own use. Therefore, even if the State of Kansas redefines a school bus to exempt 15-passenger buses, Federal law remains applicable and any new school bus sold in Kansas must comply with all applicable Federal safety standards, state law notwithstanding.

The purchaser or user of the vehicle is not under the same legal constraints as the seller. Since Federal law applies only to the manufacture and sale of a new vehicle, a school may use any vehicle it chooses to transport its students, whether or not the vehicle meets Federal safety standards. Further, there is no Federal requirement that the state or school district retrofit a vehicle to bring it into compliance with Federal standards. That is because once that vehicle has been sold new to the first customer, the use of that vehicle becomes subject to state law.

Although not required by Federal law, this agency strongly recommends that vehicles meeting Federal school bus safety standards be used to transport school children. In that connection, please find enclosed for your information a copy of Highway Safety Program Guideline No. 17, Pupil Transportation Safety. This publication was issued under the authority of the Highway Safety Act of 1966, 23 U.S.C. S401, et seq., which authorizes this agency to issue nonbinding guidelines to which states may refer in developing their own highway safety programs. Guideline 17, jointly issued by this agency and the Federal Highway Administration, provides recommen- dations to the states on various operational aspects of their school bus and pupil transportation safety programs. Specifically, the Guideline recommends, among other things, that any vehicle designed to carry more than 10 persons and which is used as a school bus comply with all Federal safety standards applicable to school buses at the time the vehicle was manufactured.

Finally, we would note that the use of vehicles that do not comply with Federal school bus safety standards to transport school children could result in increased liability in the event of an accident. Therefore, school districts should consult their attorneys and/or insurance carriers for advice on that issue.

We hope this information is helpful to you. Should you have any further questions regarding this matter, please feel free to contact Walter Myers of my staff at this address or at (202) 366-2992.