Search Interpretations


    N. Martin Stringer, Esq.
    McKinney & Stringer
    Corporate Tower
    101 North Robinson, Suite 1300
    Oklahoma City, OK 73102-5510

    Dear Mr. Stringer:

    This responds to the two letters you sent us dated November 2, 2004, concerning the Federal motor vehicle safety standards (FMVSSs) applicable to school buses that have been promulgated by the National Highway Traffic Safety Administration (NHTSA). One of your letters relates to how State definitions of school vehicles affect NHTSAs requirements to sell certified school buses. The other asks about the permissibility of reclining seat backs on school buses.

    You state that the Oklahoma Legislature has created a new category of buses, known as "auxiliary transportation equipment", to be used for transporting students "to and from extracurricular activities, but does not include transportation equipment used for transporting students from their homes to school and from school to their homes". You explain that the legislators and members of the school board believe that the legislation enables school districts to purchase and use "traditional charter-type buses, as well as 10+ passenger vans" for extracurricular activities. You explain that state officials believe that buses (new and used) for extracurricular activities are "exempt from the FMVSSs for school buses". You ask in the one letter: "Under FMVSS, can Oklahoma school districts purchase and use new traditional charter-type buses and/or [used] 10+ passenger vans for use in transporting school children to and from extracurricular activities?" You also ask the same question with regard to used buses.

    As you are aware, on July 31, 2003 (68 FEDREG 44892), NHTSA published its final rule creating the multifunction school activity bus (MFSAB) as a school bus category. The MFSAB was established for use in transporting children on trips other than those between home and school. The final rule took effect on September 2, 2003, but manufacturers have had the option of complying with the new rule as of July 31, 2003. As school buses, MFSABs must meet all FMVSSs applicable to school buses except for S5.1.4 of FMVSS No. 108, Lamps, reflective devices, and associated equipment, and FMVSS No. 131, School bus pedestrian safety devices.

    New Buses

    We do not regulate which vehicles school districts must purchase, nor do we mandate which must be used. However, we regulate the manufacture and sale of new vehicles. A person may not sell or lease a new "school bus" (as defined under NHTSAs regulations) unless it complies with, and is certified as complying with, all FMVSS applicable to school buses, regardless of how the vehicle would be characterized under State law.

    NHTSAs statute at 49 U.S.C. 30112(a) requires any person selling a new vehicle to sell a vehicle that meets all applicable standards. Accordingly, persons selling a new "school bus" must sell a vehicle that meets the FMVSSs applicable to school buses. 49 U.S.C. 30125 defines a "school bus" 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. (NHTSA has consistently interpreted "related events" to include school-sponsored field trips and athletic events.)This definition was enacted as part of a comprehensive effort by Congress to increase school bus safety. By regulation, the capacity threshold for school buses corresponds to that of buses vehicles designed for carrying more than ten (10) persons.

    Our "school bus" definition determines which new vehicles sold or leased by dealers are required under Federal law to meet the Federal motor vehicle safety standards for school buses. If a State has a different school bus definition, that definition determines the applicability of State "use" requirements for school buses, but it has no effect on the Federal requirement on dealers to sell school buses that comply with the applicable FMVSS. Thus, Oklahomas defining a school bus as "auxiliary transportation equipment" does not affect the obligation of dealers selling the new vehicle for extracurricular transportation to sell a certified school bus. If a dealer sold new "auxiliary transportation equipment" to a school district that did not meet the FMVSSs for school buses when it should have under our requirements, the dealer would be subject to Federal penalties under the statute.

    Used Buses

    As explained below, we do not regulate the sale of used vehicles. Under Federal law, dealers or other persons may sell a used bus (e.g. , a charter bus or used 10+ passenger van) to a school district for the transportation of students even though the vehicle is not certified to Federal school bus safety standards.

    NHTSAs requirement to sell vehicles that meet applicable safety standards does not apply to the sale of a motor vehicle "after the first purchase of the vehicle in good faith other than for resale" (see 49 U.S.C. 30112(b)(1)). Nonetheless, because school buses are one of the safest forms of transportation in this country, we recommend that all buses that are used to transport school children be certified as meeting NHTSAs school bus safety standards.

    That view is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the enclosed abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating four crashes in 1998 and 1999 in which 9 people were killed and 36 injured when riding in "nonconforming buses". 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.

    Reclining Seat Backs

    You wish to know whether FMVSS No. 222 prohibits school bus seats from reclining. The answer is no. However, the school bus with such seats must meet all applicable FMVSS No. 222 requirements.

    I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama at 202-366-2992.


    Jacqueline Glassman
    Chief Counsel