Interpretation ID: 04-005462drn

Major R. E. Brooks
Commander
Ohio State Highway Patrol
1970 West Broad Street
P.O. Box 182074
Columbus, OH 43118-2074

Dear Major Brooks:

This responds to your letter to Ms. Lisa Sullivan of the National Highway Traffic Safety Administration’s (NHTSA’s) Vehicle Research and Test Center. Your letter was referred to my office for reply. You have two questions. First, you ask whether there is a conflict between 49 U.S.C. §30122, Making safety devices and elements inoperative, and an Ohio Revised Code (ORC) provision requiring school buses no longer used for school transportation purposes to have their rear flashing lamps and stop arms removed. Second, you ask for our opinion on whether Ohio could consider school buses without the flashing rear lamps and school bus stop arms to be “multifunction school activity buses.”

Background

In a telephone conversation with Dorothy Nakama of my staff, Lieutenant John Boster of your office stated that the Ohio School Bus Construction Standards Committee (the Committee) is considering recommending a state law that would reclassify school buses with their rear flashing lamps and stop arms removed to be “multifunction school activity buses.” Apparently, during the Committee’s discussion, a question arose as to an existing provision in the ORC regarding removing equipment from school buses. You provided a copy of the provision that states in part:

§ 4511.762. School bus no longer used for school purposes.

(A) Except as provided in division (B) of this section, no person who is the owner of a bus that previously was registered as a school bus that is used or is to be used exclusively for purposes other than the transportation of children, shall operate the bus or permit it to be operated within this state unless the bus has been painted a color different from that prescribed for school buses by section 4511.77 of the Revised Code and painted in such a way that the words “stop” and “school bus” are obliterated.

(B) Any church bus that previously was registered as a school bus and is registered under section 4503.07 of the Revised Code may retain the paint color prescribed for school buses by section 4511.77 of the Revised Code if the bus complies with all of the following: . . .

(2) The automatically extended stop warning sign required by section 4511.75 of the Revised Code is removed and the word “stop” required by section 4511.77 of the Revised Code is covered or obliterated;

(3) The flashing red and amber lights required by section 4511.771 of the Revised Code are covered or removed.

Is There a Conflict Between 49 U.S.C. §30122 and ORC 5411.762?

Your first question asks whether there is a conflict between the “make inoperative” provision of 49 U.S.C. §30122 and ORC 4511.762. Our answer is no.

49 USC §30122(b) states, in pertinent part: “A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard prescribed under this chapter….”

Although the state law would contemplate the removal of school bus safety equipment, the equipment would be removed from vehicles that are no longer used as school buses. The buses will no longer have the school bus flashing lights required by Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and associated equipment, or the stop arm required by FMVSS No. 131, School bus pedestrian safety devices. The agency has stated in the past that modifications that change a vehicle from one type to another (e.g., from a hardtop to a convertible) do not violate the “make inoperative” prohibition, as long as the converted vehicle meets those safety standards that would have applied if the vehicle had been originally manufactured as the new vehicle type. (See June 3, 1994, letter to Michael Marczynski, copy enclosed.) Similarly, we conclude that there would be no violation of §30122 if the bus’s function was changed from that of a school bus to that of a multifunction school activity bus, and the vehicle, as modified, met the FMVSSs applicable to multifunction school activity buses.

Note also that §30122 does not apply to owners making changes to their own vehicles. If the buses were being modified by their owners, §30122 would not be an issue.

Are TheyMultifunction School Activity Buses?

You also asked whether Ohio could consider school buses without the flashing rear lamps and school bus stop arms to be “multifunction school activity buses.” It is my understanding that the Ohio statute’s provisions would apply only to used school buses. NHTSA’s vehicle classification system (See definitions at 49 CFR §571.3) pertains to our certification requirements (at 49 CFR Part 567 Certification), which apply to the manufacture and sale of new vehicles. Manufacturers of new vehicles must certify their vehicles as meeting all FMVSSs applicable to that vehicle type, and persons selling new vehicles must sell properly certified vehicles. The agency’s certification regulation and vehicle classification system do not apply to used vehicles. Thus, Ohio may characterize these used vehicles as “multifunction school activity buses” under State law, as long as State law does not conflict with Federal law. Based on the information you provided, it appears that Ohio’s definition of a multifunction school activity bus would be virtually the same as NHTSA’s definition, and we see no conflict between the two regulatory schemes.

I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman

Chief Counsel

Enclosure

ref:VSA: 222