Scott Summers, Esq.
Agency Legal Counsel's Office
Nebraska Department of Education
301 Centennial Mall South
P. O. Box 94987
Lincoln, NE 68509-4987

Dear Mr. Summers:

This responds to your letter asking about the difference in definitions of "schoolbus" at 49 U.S.C. 30125 and at 49 CFR 571.3. This question arose from comments on Nebraska's proposed change in the State definition of "school bus." You attached a letter from Mr. James R. Cunningham, Executive Director of the Nebraska Catholic Conference, questioning the "inconsistency between the August 1995 document ['Frequently Asked Questions About Federal School Bus Safety Requirements'] and the Federal Statute."

The statutory definition of "schoolbus" at 30125 is "a passenger motor vehicle designed to carry a driver and more than 10 passengers, that the Secretary of Transportation decides is likely to be used significantly to transport preprimary, primary, and secondary school students to or from school or an event related to school."

In NHTSA's regulations at 49 CFR 571.3, a "school bus" is "a bus that is sold, or introduced in interstate commerce, for purposes that include carrying students to and from school or related events, but does not include a bus designed and sold for operation as a common carrier in urban transportation" (emphasis added). Section 571.3 defines "bus" as a motor vehicle "designed for carrying more than 10 persons." The 571.3 definition of "bus" includes the driver, who is a "person" carried on the bus.

In the August 1995 "Frequently Asked Questions" document, NHTSA restates the regulatory definition of "school bus" found at 49 CFR 571.3.

NHTSA enacted its regulatory definition of "school bus" following enactment of the Motor Vehicle and School Bus Safety Amendments of 1974. In the final rule establishing the new definition of "school bus" (49 CFR 571.3), NHTSA addressed the point raised by Mr. Cunningham. In that final rule, NHTSA explained that it adopted a more expansive definition of "school bus" that differs somewhat from the statutory definition, so that the definition would apply to school buses that transport 10 students. In a Federal Register notice of December 31, 1975 (40 FR 60033, at 60034) (copy enclosed), NHTSA stated:

In conforming its proposal to the Congressional definition, the NHTSA limited "school bus" to a bus that carries at least 11 passengers in addition to the driver. Based on comments received ... , it appears that the definition should be expanded slightly to include buses that carry 10 passengers. This eliminates a departure from previous NHTSA vehicle categorization that classifies vehicles with 10 or fewer occupant seating positions as MPVs or passenger cars and vehicles with 11 or more seating positions as buses. To adhere strictly to the Congressional definition would leave the small group of vehicles that transport 10 students without coverage under either the school bus, the MPV, or the passenger car standards.

Some commenters incorrectly assumed that the Congressional definition of "school bus" established an outer limit on the NHTSA's authority to regulate vehicles that transport students as such. To the contrary, the Congressional definition is a direction to the NHTSA that the new standards in this area must not be applied to a narrower category of vehicle. As long as that direction of Congress is satisfied, the NHTSA is, however, authorized to decide the scope of its standards, and in this case to expand on the Congressional definition to implement the mandate effectively.

Please note that Nebraska may adopt a state definition of "school bus" that differs from the Federal definition. State definitions of "school bus" affect the scope of State school bus requirements, while the Federal definition affects the scope of Federal requirements. For example, the State definitions determine which vehicles are subject to the State operational requirements for school buses. However, the Federal definition determines which new vehicles sold or leased by dealers are required under Federal law to meet the Federal motor vehicle safety standards applicable to school buses.

This agency has urged the States to follow NHTSA's definition of "school bus" and not to establish operational rules that would allow schools and school districts to carry students on buses that do not meet NHTSA's school bus standards. School buses that comply with NHTSA's school bus safety standards are the safest form of pupil transportation.

I hope that this information is useful. If you have any further questions, please contact Dorothy Nakama of my staff at this address or at (202) 366-2992.

John Womack
Acting Chief Counsel
ref: 571.3