Interpretation ID: 1985-01.21

TYPE: INTERPRETATION-NHTSA

DATE: 01/29/85

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Neal McCormick -- Senior Consultant Transportation, Colorado Dept. of Education

TITLE: FMVSS INTERPRETATION

ATTACHMT: 11/2/84 letter from Diane K. Steed to Jim Burnett, Chairman, NTSB

TEXT: This responds to your November 21, 1984 letter to the National Highway Traffic Safety Administration (NHTSA) concerning the Federal Motor Vehicle Safety Standards (FMVSS) applicable to school buses. Our answers follow your specific questions which we have restated below.

1. Do the Federal school bus standards in fact preclude a school district from transporting pupils in vehicles not meeting all school bus standards?

To begin, I would like to explain that there are two sets of regulations, issued under different Acts of Congress, that could affect a school district's choice of buses. The first of these are the motor vehicle safety standards to which you refer in your letter. These safety standards were issued by our agency under the National Traffic and Motor Vehicle Safety Act of 1966 (Public Law 89-563; 15 U.S.C. 1381-1426) and apply to the manufacture and sale of new motor vehicles. In a 1974 amendment to the Act, Congress expressly directed us to issue standards on specific aspects of school bus safety, including emergency exits, seating systems, windows and windshields, and bus structure. The standards we issued became effective April 1, 1977, and apply to each school bus manufactured on or after that date. If a school district plans to buy a new bus for use as an activity bus, the manufacturer and dealer must certify that the bus complies with the motor vehicle safety standards applicable to school buses. The Federal sanctions are directed against the dealer or manufacturer who sells a new noncomplying bus to a school for school use. Strictly speaking, a school district is not prohibited by our school bus safety standards from operating a noncomplying school bus.

There might, however, be an impediment under State law, if Colorado has adopted the provisions of the standard on school transportation issued by our agency under the Highway Safety Act (Public Law 89-564; 23 U.S.C. 401-408). This standard, Highway Safety Program Standard No. 17 (HSPS 17), specifies that a bus used to transport more than 16 pupils to and from school should be painted yellow, be equipped with special mirrors and warning lights, and be marked "School Bus." Therefore, although the Vehicle Safety Act would not prevent a school district from operating a noncomplying school bus, HSPS 17 might affect your school districts if Colorado has adopted it and if Colorado accepts our view that the specifications apply to activity buses. I have enclosed a copy of HSPS 17 that was photocopied from volume 23 of the Code of Federal Regulations, Part 1204.4, as requested by your associate, Mr. Joseph Marchese.

If Colorado chooses to exempt activity buses from being painted, signed, and equipped as school buses, we might disagree with the wisdom of its decision but we would not insist on compliance with HSPS 17 to the extent of taking action against the State. Congress has given us discretion under the Highway Safety Act not to insist that a State comply with every requirement of the highway safety standards. While we have stressed the importance of a strong pupil transportation program, consistent with HSPS 17, we have not insisted that the States comply with every feature of the standard.

Having said this, however, I would like to restate the importance that our agency attaches to the use of safe buses to transport children. It remains the agency's position that a yellow school bus meeting the motor vehicle safety standards is the safest means of transportation for school children. Such a bus has safety features such as seat backs designed to cushion impacts, windows that prevent ejections, and exits that facilitate escape after crashes. In the years since buses began to be manufactured with these features, there has been a marked improvement in school bus safety. These are features that school districts should consider when deciding to purchase their school vehicles.

2. May a state set out definitions of vehicles (for transportation of pupils) which do not meet all applicable school bus standards? If not, what penalties may be applied?

Our Federal motor vehicle safety regulations define a bus as a motor vehicle designed to carry more than 10 persons and further define a school bus as a bus that is sold for the purposes of carrying students to and from school or related events. The decision of a State not to adopt the Federal classification has no effect on the application of the Federal school bus safety standards to that vehicle. The Federal school bus safety standards would apply to vehicles that meet the Federal definition of a school bus, regardless of whether the vehicle is considered a school bus under state regulations. Of course, the Federal standards apply only to those vehicles that were manufactured after the effective date of the standards, April 1, 1977.

Section 103(d) of the Vehicle Safety Act states generally that no State shall have in effect any State standard regulating an aspect of performance that is regulated by a Federal safety standard unless the State standard is identical to the Federal standard. State standards that are not identical are preempted by the Safety Act unless they impose a higher level of safety and are applicable only to vehicles procured for the State's own use.

The preemptive effect of section 103(d) is not altered by the fact that a vehicle classified as a school bus under the Safety Act is classified as some other type of motor vehicle under State law. A State decision to adopt all or none of the Federal motor vehicle safety standards applicable to a type of motor vehicle has no effect on the necessity under the Safety Act of manufacturing such a motor vehicle in accordance with the Federal standards.

3. If a local educational agency acquires a vehicle not meeting all applicable school bus safety standards and uses it for transporting pupils, what penalties may be applied? Would such penalties apply if the vehicle is used for "activity" transportation only?

As we explained above, the school district that purchases and uses a noncomplying school bus would not be subject to Federal sanctions under the Vehicle Safety Act. It is only illegal for a manufacturer or dealer to sell such a vehicle to a school knowing that the school will use it to transport students. Any person selling new vehicles for use in school transportation which fail to comply with all applicable safety standards is violating the Vehicle Safety Act and is subject to a maximum penalty of $ 1,000 per violation. Further, in regard to the second part of this question, the answer is yes. The penalties would apply to a person selling a new bus to a school for school related activity trips if that bus is not certified to the Federal safety standards.

You should note that although a school district would not be subject to Federal sanctions under the Safety Act for buying and using a noncomplying bus, using such a vehicle as a school bus could result in increased liability in the event of an accident. You might want to consult your attorney and insurance company to discuss this matter.

4. If a local educational agency acquires a vehicle meeting all applicable school bus standards and modifies such a vehicle, is there a penalty? For example, replacement of 222 seating with seats not in compliance with the 222 standards.

The answer is no. Nothing in the Vehicle Safety Act prohibits an owner, such as a school, from modifying its own vehicles. However, the Act does prohibit dealers, manufacturers and motor vehicle repair shops from knowingly rendering inoperative any element of design installed in compliance with a Federal motor vehicle safety standard. The school can replace the seats of the original school bus with seats that do not comply with FMVSS No. 222 if it so desires. As we pointed out above, the school could be subject to increased liability in case of an accident. We suggest that you discuss this matter with your attorney or insurance company.

5. Is NHTSA at present considering any amendments to the existing standards for school buses? Also, are any additional standards likely to be promulgated within the next year?

Our agency has recently received a petition for rulemaking requesting that FMVSS No. 222 be amended to set certain specifications for seat belt performance on large school buses if seat belts are voluntarily installed on these vehicles. The decision to issue a notice of proposed rulemaking will be made by NHTSA in the course of the rulemaking proceeding, in accordance with statutory criteria.

6. The National Transportation Safety Board (NTSB) has set out several recommendations for "activity" buses. Does NHTSA concur in these recommendations? (These refer to certification/training of mechanics, etc.)

Enclosed is a copy of a November 2, 1984 letter from NHTSA's Administrator, Diane K. Steed, to Chairman Burnett of the National Transportation Safety Board, which comments on several recommendations NTSB made regarding school bus repairs, certification of mechanics, instruction on emergency equipment use, et cetera. I believe this letter will discuss your concerns thoroughly.

If you have any further questions, do not hesitate to contact my office.

ENCLS.

[See 11/2/84 letter from Diane K. Steed to Jim Burnett, Chairman, NTSB] COLORADO DEPARTMENT OF EDUCATION

November 21, 1984

Frank Berndt, Chief Counsel NHTSA -- USDOT

Dear Mr. Berndt:

This letter concerns Federal Motor Vehicle Safety Standards, particularly those applicable to school buses; of special interest are Nos. 217, 220, 221, and 222. Your answers will be of special interest to this state; in addition, copies will be provided to State Directors of Pupil Transportation Services per a request at the annual meeting in Albuquerque, New Mexico, on November 5.

The standards appear to preclude a school agency from acquiring any vehicle, other than one meeting all applicable school bus standards, for the transportation of pupils to/from school or school related events. Following are specific questions in this regard:

1. Do the above standards in fact preclude a school district from transporting pupils in vehicles not meeting all school bus standards?

2. May a state set out definition(s) of vehicles (for transportation of pupils) which do not meet all applicable school bus standards? If not, what penalties may be applied?

3. If a local educational agency acquires a vehicle not meeting all applicable school bus standards, and uses it for transporting pupils, what penalties may be applied? Would such penalty (if any) apply if the vehicle is used for "activity" transportation only?

4. If a local educational agency acquires a vehicle meeting all applicable school bus standards and modifies such vehicle (in a category governed by one of the above standards) is there a penalty? For example, replacement of 222 seating with seats not in compliance with the 222 standards.

5. Is NHTSA at present considering any amendments to the existing standards for school buses? Also, are any additional standards likely to be promulgated within the next year?

6. The National Transportation Safety Board has set out several recommendations for "activity" buses; does NHTSA concur in these recommendations? (These refer to certification/training of mechanics, etc.)

Thank you for any consideration.

Neal McCormick Senior Consultant Transportation

CC: PAUL STEWART -- WEST VA. DEPT. OF EDUCATION; ROY G. BRUBACHER -- COLORADO DEPT. OF EDUCATION; DANIEL G. WISOTZKEY -- COLORADO DEPT. OF EDUCATION