Interpretation ID: nht95-2.33
TYPE: INTERPRETATION-NHTSA
DATE: April 10, 1995
FROM: Philip R. Recht -- Chief Counsel, NHTSA
TO: Edward Gower, Esq. -- Chief-Counsel, Illinois Department of Transportation
TITLE: NONE
ATTACHMT: ATTACHED TO 1/27/95 LETTER FROM J. RANDLE SCHICK TO SUSAN KUNKEL (OCC 10696)
TEXT: Dear Mr. Gower:
In response to a request by Larry Wort, Chief of the Bureau of Safety Programs, I have reviewed the provisions of Senate Bill No. 52, now awaiting action in the Illinois General Assembly, to determine whether the provisions relating to school buses would conflict with applicable Federal law. My review leads me to conclude that there is a conflict that could result in Federal preemption in some circumstances. I am specifically concerned about the bill's redefinition of "school bus."
By way of background information, Chapter 301 of Title 49 of the U.S. Code (Safety Act) authorizes the National Highway Traffic Safety Administration (NHTSA) to issue Federal motor vehicle safety standards applicable to new motor vehicles and equipment p rior to sale to the first retail purchaser. Following the first retail purchase, the use of vehicles becomes a matter of state concern. The Safety Act further provides that a Federal standard preempts any state or local standard applicable to the same aspect of performance that is not identical to the Federal standard. 49 U.S.C. 30103(b)
NHTSA defines a "bus" as a passenger motor vehicle designed to carry more than 10 persons, and further defines a "school bus" as a bus that is sold for purposes that include carrying students to and from school or related events, except a bus sold for op eration as a common carrier in urban transportation. 49 CFR 571.3.
Senate Bill No. 52 proposes to amend the definition of "school bus" in section 1-182 of 625 ILCS by excluding
3. A motor vehicle designed for the transportation of not less than 7 nor more than 16 persons that is operated by or for a public or private primary or secondary school, including any primary or secondary school operated by a religious institution, for the purpose of transporting not more than 15 students to and from interscholastic athletic or other interscholastic or school sponsored activities.
There is thus an inconsistency between the definition in 49 CFR 571.3 and the definition in Senate Bill No. 52, since a vehicle with a capacity of 11-16 persons that is sold for school transportation would be a school bus for Federal purposes but not for State purposes.
This inconsistency matters at the point of sale of a school bus. The Federal safety standards impose a number of requirements on school buses that do not apply to other buses. See, e.g., 49 CFR 571.222, School bus passenger seating and crash protection . If a dealer were to sell a 11-16 person bus to a school for use in transporting students, the Federal school bus requirements would apply, notwithstanding the State law's exclusion of such a bus from the school bus definition.
I want to stress that the Federal law applies to dealers as well as to manufacturers. The obligations of a dealer are set forth at 49 U.S.C.30112(a), which provides that no one may manufacture or sell a new motor vehicle to which a vehicle safety standa rd applies unless the vehicle complies with the standard. A dealer who sells a bus for school use that does not meet the school bus standards would thus violate the law.
The amendment in Senate Bill No. 52 which would add 105 ILCS 5/29-6.3 is not inconsistent with the Safety Act. It has been our position that vehicles that do not comply with applicable Federal school bus safety standards may be borrowed or rented on a o ne-time or very occasional basis to transport students. Operators should be cautioned, however, that transporting students in other than complying school buses could result in additional liability in the event of an accident.
I hope the above information is helpful to you. If you have any further questions or need additional information, you may contact Walter Myers of my staff at this address or at (202) 366-2992.