Interpretation ID: 05-008512drn

Mr. Drake Earnest

Mid-South Bus Center

3590 Manson Pike

Murfreesboro, TN 37129

Dear Mr. Earnest:

This responds to your letter asking whether a bus distributorship may sell new buses to private high schools that want sleeker vehicles than conventional school buses. You state that you do not sell non-conforming buses (buses that do not meet Federal school bus standards) to these schools, while your competitors will sell them what they want. You ask for documentation that addresses the sale of non-conforming buses to transport school age children.

As explained below, you are correct that, when selling new buses to a school (private or public) for pupil transportation, bus dealers and distributorships must ensure that the buses are certified as meeting the Federal school bus standards of this agency. In addition, in some instances, schools themselves are required by Federal law to ensure that they buy buses that meet those standards.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles.

Our statute at 49 U.S.C. 30112 requires any person selling a new vehicle to sell a vehicle that meets all applicable FMVSSs. Accordingly, persons selling a new school bus must sell a vehicle that meets the FMVSSs applying to school buses. A bus is a vehicle designed for carrying more than 10 persons. Our statute defines a school bus as any vehicle that is designed to carry 11 or more persons and which is likely to be used significantly to transport preprimary, primary, and secondary students to or from school or related events.

Thus, when selling a new bus that will be used significantly to transport preprimary, primary, or secondary students to or from school or related events, a dealer or distributorship must sell the school a bus that meets NHTSAs school bus FMVSSs. If a new

bus is to be sold for school-related events that do not involve school bus route transportation, i.e., do not involve transporting students between home and school, the bus can be a multifunction school activity bus, which meets all the school bus FMVSSs except those requiring the installation of traffic control devices.

Persons manufacturing or selling vehicles or equipment that do not comply with all applicable FMVSSs are subject to a maximum penalty of $10,000 for each violation of Section 30112(a)(2) and a maximum penalty of $15,000,000 for a related series of violations.

As to schools that purchase buses, I would like to take this opportunity to bring to your attention and through you, to the attention of your clients, a change last year in Federal law regarding the purchase of small nonconforming buses. On August 10, 2005, P.L. 109-59, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was enacted. Section 10309 states in part:

a school or school system may not purchase or lease a new 15-passenger van if it will be used significantly by, or on behalf of, the school or school system to transport preprimary, primary, or secondary school students to or from school or an event related to school, unless the 15-passenger van complies with the motor vehicle standards prescribed for school buses and multifunction school activity buses under this title.

For purposes of Section 10309, 15-passenger van is defined as: a vehicle that seats 10 to 14 passengers, not including the driver. The civil penalty for a violation of Section 10309 is $10,000, with a maximum penalty of $15,000,000 for a related series of violations.

Because of this possible exposure to the new statutory civil penalty provision for purchases of new, noncompliant 15-passenger vans (which, by definition, includes vehicles seating 10 to 14 passengers), we recommend that schools considering the purchase of a bus that does not meet the Federal school bus safety standards consult a private attorney about the implications associated with that purchase.

In addition, before any school makes a decision about buying a bus of any size, we wish to emphasize that school buses are one of the safest forms of transportation in this country. We therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSAs school bus safety standards. For a full explanation of NHTSAs school bus regulations, I am enclosing our publication, School Bus Safety: Safe Passage for Americas Children.

You also posed a question about requirements for the use of school vehicles. State law determines the requirements that apply to the use of school vehicles. Thus, whether schools can use non-school buses to transport children in Tennessee is determined by Tennessee law. Keep in mind, however, that even if State law permits a nonconforming bus to be used for school transportation, this does not alter the requirements and prohibitions of Federal law. If the sale of that bus to a school is impermissible under Federal law, the seller is subject to civil penalties.

For information on Tennessees requirements, you may contact Tennessees State Director of Pupil Transportation:

Mr. James Swain

Tennessee Department of Education

Old TPS High School

1120 Menzler Road

Nashville, TN 37243

Phone: 615-253-6025

e-mail: james.swain@state.tn.us

If you have any further questions about NHTSAs school bus requirements, please feel free to contact Dorothy Nakama of my staff at this address, or at (202) 366-2992.

Sincerely,

Stephen P. Wood

Acting Chief Counsel

Enclosure

ref:VSA#571.3

d.6/19/06