Interpretation ID: 20077.drn

Heather A. Hale, Esq.
Hale, Stein, Fosdick, Murphy,
Hale and Associates, P.C.
P. O. Box 51107
Livonia, MI 48151-1077

Dear Ms. Hale:

This responds to your request for an interpretation of dealers' responsibilities when selling12-15 passenger vans to child care facilities. You ask two questions that are answered below.

Some background information may be helpful. The National Highway Traffic Safety Administration ( NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses.

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. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus."

Your first question concerns NHTSA's position that Head Start programs and pre-schools are "schools" while day care facilities that are custodial in nature are not "schools."

NHTSA still observes the distinction between facilities that provide educational programs and those that are strictly custodial. We do not consider day care centers that are custodial in nature to be "schools."

Your second question was whether NHTSA's restrictions relating to the sale or lease of new "school buses" would apply to vehicles sold or leased to a child care facility which is custodial in nature and which would transport children between the children's homes and the facility.

The response to this question assumes that no "significant" transportation "to or from school or school-related activities" would be provided. If transportation would be provided strictly between the children's homes and the custodial facility, a dealer would not be required to sell a school bus for this purpose. If, however, the bus would also be used significantly to transport children between the facility and a school, the dealer would be required to sell a school bus, even though the purchaser was the day care provider rather than the school. In recent interpretations, we have stressed that it is the purpose for which the bus is used, not the identity of the purchaser, that determines whether a dealer must sell a school bus or may sell another type of bus.

In fully answering the second question, I ask that you take the following into consideration. At a June 8, 1999, public meeting, the National Transportation Safety Board (NTSB) issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating, in 1998 and 1999, four crashes in which 9 people were killed and 36 injured when riding in "nonconforming buses." The NTSB defines "nonconforming bus" as a "bus that does not meet the FMVSSs specific to school buses." Most of the victims, including eight of the fatalities, were children.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 12 to 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I hope this information is helpful. For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." 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. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office at (202) 314-6100.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.8/6/99