ID: nht88-3.73

TYPE: INTERPRETATION-NHTSA

DATE: 10/18/88

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: RAYMOND M. MOMBOISSE -- GENERAL COUNSEL IMMIGRATION AND NATURALIZATION SERVICE U.S. DEPARTMENT OF JUSTICE

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 08/07/89 FROM STEPHEN P. WOOD -- NHTSA TO CLIFFORD ANGLEWICZ -- VERNE CORP; REDBOOK A34 [4]; INTERP SECTION 101 [3]; PART 571 [A]; LETTER FROM CLIFFORD T. ANGLEWICZ -- VERNE CORP TO NHTSA DATED 09/07/88; OCC 2529; BROCH URE FROM ARROWPOINTE; DRAGOON PATROLLER ARMORED RESCUE AND SECURITY VEHICLE; 5/19/88 letter from Raymond M. Momboisse to Bwayne Vance

TEXT: Dear Mr. Momboisse:

Your letter of May 19, 1988, to the General Counsel of the Department of Transportation has been forwarded to this Office for reply. You request a waiver "exempting the Hummer vehicle from the Federal Motor Vehicle Safety Standards (FMVSS) when purchase d directly from the manufacturer, AM General Corporation."

This response is based upon the information contained in your letter, and upon information my staff has obtained in telephone conversations with Ed Butkera of AM General Corporation, manufacturer of the Hummer, relating to its compliance with the Federal motor vehicle safety standards, and Gary Runyon of the Border Patrol, relating to the mission of that agency and the role the Hummer plays in it. According to our information, the Hummer is a vehicle which was developed specifically for, manufactured f or, and sold exclusively to, the U.S. Army. The Border Patrol has bought Hummers from the Army because of certain features it finds advantageous in its operations, and its expanded missions involving interdiction of drugs. The principal reasons for you r request are (1) that the Border Patrol desires to buy Hummers equipped with an assembly line addition (a central tire inflation system) is not incorporated on the Hummers sold to the Army, and (2) that, by buying directly from AM General Corporation, t he Border Patrol will save $ 5,000 per vehicle, as the price of Army Hummers reflects the added expense of amortized development costs.

This agency has jurisdiction over "motor vehicles" as that term is defined by 15 U.S.C. 1391(3). If a vehicle is not a "motor vehicle," then the Federal motor vehicle safety standards do not apply to it. The exclusion of military vehicles from applicab ility of the safety standards in 49 C.F.R. 571(a), which you quoted, is operative only if those vehicles would otherwise be "motor vehicles" required to comply with the standards.

2

Under 15 U.S.C. 1391(3), a "motor vehicle" is "any vehicle driven or drawn by mechanical power manufactured primarily for use on the public streets, roads, and highways. . . ." The agency has interpreted this definition to exclude such vehicles as minibi kes, golf carts, all-terrain vehicles, single seat racing cars used on closed courses, airport crash and rescue vehicles, and farm tractors. On the other hand, the agency has included in the definition farm trailers which haul produce over the public ro ads to processing centers, stock cars modified for racing unless such modifications are so extensive that the vehicle can no longer be licensed for use on the public roads, and vehicles capable of use both on rails and the public roads.

You have informed us that the Hummer will "generally only be used on public highways to travel between stations and assigned duty areas." However, you have also informed us that this will constitute approximately 30% of its operational time. Were we to c onsider this factor alone, we could not conclude that the Hummer was not a "motor vehicle." However, there are further factors that make the proper classification of the Hummer a close question. The Hummer was developed as a vehicle for military operati ons and not for civilian applications, its manufacturer does not advertise or sell it for civilian purposes, and its configuration is such that it probably could not be licensed for use on the public roads without modification of some of its original mil itary specifications.

Resolution of this question is not necessary since the mission and method of operation of the Border Patrol provide a separate basis for concluding that the Hummers to be purchased by the Border Patrol are not subject to the FMVSS. We understand that on e of the missions of the Border Patrol is to act as an agency of national security in protection of the country's borders to ensure that persons and goods enter and exit only through official Customs and Immigration stations, and that this role has becom e of paramount importance in the "war against drugs." In this enforcement effort, the Hummers of necessity carry firearms such as the M-14 and M-16 rifles which the Army Hummer carries, can be equipped with military communications equipment enabling them to serve as command posts, and carry certain military equipment used for electronic interception and sensing movement. It further appears that in this mission the Border Patrol is not only equipped like a component of the Armed Forces of the United Sta tes, but also is trained and functions in many respects that are similar to such a component. Accordingly, for the purposes of applying the exclusionary phrase of 49 CFR 571.7(a), it is appropriate to regard the Border Patrol as being akin to a componen t of the Armed Forces of the United States. In consideration of the foregoing, the National Highway Traffic Safety Administration has concluded that AM General Corporation will not be in violation of the

3

National Traffic and Motor Vehicle Safety Act if it manufacturers and sells Hummers to the Border Patrol for its use as described in your letter.

Sincerely,

ID: 20398.drn

Ms. Sarah Swartzendruber
Law Clerk
Phelan, Tucker, Mullen, Walker
Tucker, Gelman, LLP
321 East Market
Iowa City, IA 52244

Dear Ms. Swartzendruber:

This responds to your request for an interpretation of a child care facility's responsibilities when it is considering purchasing a 15-person van to transport children. Our answer is provided below.

Your letter states that your firm's client operates a before- and after-school care program. The program is physically located at a school. The client would not use the van to transport children to or from school, and would use the van only "during summer vacation, when school is not in session." You ask us to determine whether the program constitutes a "school," and how we have defined "significant" use of a vehicle.

Some background information may be helpful. The National Highway Traffic Safety Administration ( NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses.

Our statute defines a "schoolbus" 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. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus."

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit child care facilities from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, so you should also check Iowa law to see if there are regulations about how the client must transport school children.

Responding to your question whether the before- and after-school care program is a "school," NHTSA distinguishes between facilities that provide educational programs and those that are strictly custodial. We do not consider child care programs that are custodial in nature to be "schools." However, in recent interpretations (see the attached July 23, 1998 letter to Mr. Don Cote) we have stressed that it is the purpose for which the bus is used, not the identity of the purchaser, that determines whether a dealer must sell a school bus or may sell another type of bus. Thus, if a custodial center were purchasing the bus to use significantly to transport students to or from school or school-related events, a dealer knowing of this purpose is required to sell a school bus.

You also ask for a definition of "significant" use. Your letter stated that the client would use the van only during the summer, when school is not in session. If no "significant" to or from school transportation would be provided by the client, a dealer would not be required to sell a school bus. In a letter of May 20, 1999 to Mr. Dennis Seavey (copy enclosed), we stated that we consider transportation to or from school "on any two days during a week to be regular use and therefore 'significant.'"

In fully addressing the type of vehicle that should be used to transport children, your client should take the following into consideration. At a June 8, 1999, public meeting, the National Transportation Safety Board (NTSB) issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating in 1998 and 1999, four crashes 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.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I hope this information is helpful. For more information about the safety features of a school bus, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses."

If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office at (202) 314-6100.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:571.3#VSA
d.8/24/99

ID: 20706.drn

The Honorable Judd Gregg
United States Senate
Washington, DC 20510-2904

Dear Senator Gregg:

Thank you for your letter to Mr. Peter Halpin, Director of the Department of Transportation's Office of Congressional Affairs, on behalf of your constituent, Ms. Anne Duguay of Bedford. Ms. Duguay has contacted you to find out about "a federal law recently passed which sets requirements for transporting groups of children in vans ... which hold 8 to 15 passengers."

Because the National Highway Traffic Safety Administration (NHTSA) administers Federal regulations for school buses, your letter has been referred to my office for reply. At the outset, let me state that there is no new Federal law that regulates how children must be transported. Requirements regulating how persons must be transported are determined by State law.

Some background information may be helpful. NHTSA is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" 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. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus." Persons selling or leasing new 15-person vans for such use must sell or lease a van that meets our school bus standards.

In determining whether a dealer must sell a school bus to a facility, we distinguish between facilities that provide educational programs and those that are strictly custodial. We do not consider facilities that provide custodial programs to be "schools." However, in recent interpretations (see the attached July 23, 1998 letter to Mr. Don Cote) we have stressed that, even if a bus were sold to a facility that provides custodial care, if that facility were purchasing the new bus to use significantly to transport students to or from a school or events related to a school, a dealer knowing of this purpose would be required to sell a school bus.

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit schools or child care facilities from using large vans to transport school children, even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, New Hampshire law should be consulted to see if there are regulations about how children must be transported.

We wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than "conventional vans." There are small school buses available that seat 15 children. While school buses are more expensive than large vans, we believe that the cost difference is not so large that it should prevent child care centers from acquiring school buses. The cost range for 15-passenger school buses is approximately $30-32,000, compared to $25-28,000 for 15-passenger vans. The longer service life for school buses will offset a part of this difference.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the attached 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.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

I hope this information is helpful. If you have any further questions about NHTSA's programs, please feel free to contact me.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.10/14/99

ID: 20872nhf

Mr. Robert J. Carlson
Warranty Specialist
City of Everett Transportation Services
Motor Vehicle Division
3200 Cedar Street
Everett, WA 98201-4599

Dear Mr. Carlson:

This responds to your letter requesting guidance as to whether you may obtain authorization to relocate or exchange the original manufacturer's driver's seat in your Ford/El Dorado National ParaTransit Buses, and as to whether you may add a driver's side air bag on-off switch. I regret the delay in responding.

You explain that these Paratransit vans are used to transport people with disabilities, some of whom are seated in wheelchairs. You explain that your drivers must often assist the passengers with entering and exiting the van and with fastening their seatbelts. Your drivers generally exit to the right of the driver's seat due to concerns with roadside traffic. You explain that your drivers have experienced difficulty entering and exiting the vehicle because of the lack of room between the seat and engine component cover. Your drivers have complained of back, shoulder and arm pain. You also explain that an ergonomist has examined the vehicles and determined that the seats could cause work-related claims. You state that your drivers have threatened to take union and legal action against the City, Ford, and El Dorado National (the manufacturer of the paratransit buses). You have had three Ford seat bases and two seat back frames fail since March 1999. You believe that these seat base and seat back frame failures are caused by the frequent side to side movement of the drivers entering and exiting the vehicles. You explain that you did not experience these problems with your old paratransit buses which were equipped with heavy-duty air ride seats.

You explain that you have investigated the possibility of either moving the existing seat back four inches or installing heavy-duty air ride seats. You state that Ford Motor Company has told you that any change to the driver's seat will void the vehicle's certification to the Federal motor vehicle safety standards (FMVSS) and release Ford of any safety or product liability. Specifically, you ask whether you may replace the original manufacturer's seats or move the existing seats back several inches, or add a driver's side air bag on-off switch. Your question is addressed below.

We would like to begin by explaining that the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and items of motor vehicle equipment. Manufacturers are required to certify that their products conform to our safety standards before they can be offered for sale.

After the first sale of the vehicle, manufacturers, distributors, dealers, and repair businesses are prohibited from "knowingly making inoperative" any device or element of design installed on or in a motor vehicle in compliance with an applicable standard. In general, the "make inoperative" prohibition (49 U.S.C. 30122) requires businesses which modify motor vehicles to ensure that they do not remove, disconnect, or degrade the performance of safety equipment installed in compliance with an applicable standard. Violations of this prohibition are punishable by civil penalties of up to $1,100 per violation. Thus, a dealer or repair business could relocate or exchange the original manufacturer's driver's seat so long as such action did not negatively affect the vehicle's compliance with the Federal motor vehicle safety standards.

The make inoperative prohibition does not apply to the actions of a vehicle owner in modifying his or her vehicle. Therefore, it does not apply to any of the modifications you may perform to the vehicles you own and use for paratransit. Thus, you may modify the vehicle regardless of the effect on compliance with FMVSSs. You may, however, wish to consult a private attorney concerning any state law implications associated with modifying your vehicles, including potential liability implications, and whether such modifications will void your warranty with Ford.

We note that the purpose of the "make inoperative" prohibition is to ensure that current and subsequent owners and users of the vehicle are not deprived of the maximum protection afforded by the vehicle as newly manufactured. Therefore, we encourage you not to unnecessarily compromise the safety of the vehicles you modify. Finally, if you sell the vehicles, we urge you to advise the purchaser that the vehicle has been modified and consider repositioning the seat and reinstalling any removed safety equipment if appropriate.

We are unsure why you would want to add a driver's side air bag on-off switch in the event that you relocated the driver seat rearward. Air bags create risks to persons who are too close to the air bag at the time of deployment. Relocation of the driver seat rearward would therefore appear to make it less likely, rather than more likely, that a person would be at risk from the air bag. It is possible, however, that relocation of the seat could adversely affect the air bag sensing system. Installing an air bag on-off switch would not resolve such a problem. We would urge you to consult with Ford about the potential consequences of relocating the seat and what actions could be taken to minimize any adverse safety consequences.

I hope this information has been helpful. If you have any other questions or need some additional information in this area, please contact Edward Glancy of my staff at this address or by phone at (202) 366-2992.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:VSA
d.7/7/00

ID: 21525.drn

The Honorable Judd Gregg
United States Senate
Washington, DC 20510-2904

Dear Senator Gregg:

Thank you for your letter to Mr. Peter Halpin, Director of the Department of Transportation's Office of Congressional Affairs, on behalf of a constituent who expressed concerns "regarding a change in federal standards which would prevent the use of vans to transport students."

Because the National Highway Traffic Safety Administration (NHTSA) administers federal regulations for school buses, your letter has been referred to my office for reply. At the outset, let me state that there is no federal statute or regulation that regulates how children must be transported. Requirements regulating how persons must be transported are determined by state law.

Some background information may be helpful. NHTSA is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" 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. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus." Persons selling or leasing new 15-person vans for such use must sell or lease a van that meets our school bus standards.

In determining whether a dealer must sell a school bus to a facility, we distinguish between facilities that provide educational programs and those that are strictly custodial. We do not consider facilities that provide custodial programs to be "schools." However, in recent interpretations (see the attached July 23, 1998, letter to Mr. Don Cote) we have stressed that, even if a bus were sold to a facility that provides custodial care, if that facility were purchasing the new bus to use significantly to transport students to or from a school or events related to a school, a dealer knowing of this purpose would be required to sell a school bus.

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit schools or child care facilities from using large vans to transport school children, even when the vehicles do not meet federal school bus safety standards. However, each state has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, New Hampshire law should be consulted to see if there are regulations about how children must be transported.

We wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than "conventional vans." There are small school buses available that seat 15 children. While school buses are more expensive than large vans, we believe that the cost difference is not so large that it should prevent child care centers from acquiring school buses. The cost range for 15-passenger school buses is approximately $30-32,000, compared to $25-28,000 for 15-passenger vans. The longer service life for school buses will offset a part of this difference.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses 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.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

I hope this information is helpful. If you have any further questions, please contact Charlotte Hrncir, the Director of Intergovernmental and Congressional Affairs, at (202) 366-2111.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.5/10/00

ID: nht95-5.1

TYPE: INTERPRETATION-NHTSA

DATE: December 11, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Carrie Stabile

TITLE: NONE

ATTACHMT: 8/29/95 letter from Carrie Stabile and James V. Stabile III to NHTSA Office of Chief Council

TEXT: This responds to the letter from you and your brother James Stabile regarding a "Vehicle Illuminated Warning System" that you wish to market for school buses. You have asked for its "review with regards to Vehicle Safety Standards."

While your cover letter did not describe your Warning System in detail, it appears from your enclosed sketches that the system consists of panels centered in the front and rear headers through which the bus operator may provide certain illuminated messag es to other drivers. These are "School Bus" (in green), "Slow Down" (yellow), and "Do Not Pass" (red).

You indicated to Dee Fujita of my staff that you might design the system such that the messages are automatically activated in certain circumstances. You are considering designing the system such that the "School Bus" message would be illuminated while the vehicle is moving, "Slow Down" would show when the school bus driver brakes, and "Do Not Pass" when the vehicle's red lamps are activated. The message board is rimmed by small yellow and red lamps. The small yellow lamps would flash with the Slow Do wn message and the small red lamps would flash with "Do Not Pass."

The short answer is there is no Federal motor vehicle safety standard (FMVSS) that specifies requirements for your Warning System. However, as explained below, your system is regarded as supplementary lighting equipment, which subjects it to certain req uirements. Further, the States have the authority to regulate the use of school buses, including how the vehicles are identified. Thus, States might have requirements affecting whether your message board is permitted on school buses operating in each ju risdiction.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized by Congress (49 U.S.C. Chapter 301) to issue FMVSSs that set performance requirements for new motor vehicles and new items of equipment. n1 NHTSA has used this authority to issue Standard No. 108, Lamps, Reflective Devices and Associated Equipment. NHTSA does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, our statute establishes a "self-certification " process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. The following represents our opinion based on our understanding of the information you provided.

n1 NHTSA also has the authority to investigate safety-related defects. Manufacturers of motor vehicles and items of motor vehicle equipment (such as your Warning System) must ensure that their products are free of safety-related defects.

To answer your letter, we will first discuss the Federal lighting requirements that apply to your system generally. Following that, we will discuss specific issues about your system.

General lighting requirements

In addition to the lighting equipment required for ordinary buses, paragraph S4.1.4 of Standard No. 108 requires school buses to be equipped with a system of four red signal lamps, or four red and four amber signal lamps, designed to conform to SAE Stand ard J887 School Bus Red Signal Lamps, July 1964, and installed at the top and evenly spaced from the vertical centerline of the bus. These lamps must flash alternately at a rate of 60-120 cycles per minute. All other required lighting equipment, except for turn signals and hazard warning signals, must be steady-burning.

Supplementary lighting equipment is permissible under the following conditions. If your Warning System is to be installed by a manufacturer or dealer before the first sale and delivery of the school bus, the Warning System must not impair the effectivene ss of the lighting equipment required by Standard No. 108 including the signal system mentioned above, that is to say, it cannot replace required equipment, or modify its performance or detract from the "message" that the required lamp is intended to imp art. Manufacturers of motor vehicles are required to affix a certification to the vehicle that it complies with all applicable Federal motor vehicle safety standards, and the determination of impairment is to be made by the manufacturer at that time. A dealer installing the Warning System is regarded as an alterer, and required to affix its own certification that the vehicle as altered continues to conform; at that point, the dealer installing the system would make its determination that impairment di d not exist. NHTSA will not contest a determination unless it is clearly erroneous.

If the Warning System is to be installed on school buses already delivered and in use, there is no Federal requirement that the person adding the equipment certify the vehicle. However, there is a similar obligation to ensure continuing compliance. If the person is a manufacturer, dealer, distributor, or motor vehicle repair business, under a statute that we administer, that person must ensure that installation and use of the Warning System will not "make inoperative" any of the required lighting equi pment including the school bus signal lamp system. We regard "making inoperative" in this context the equivalent of "impairment" discussed in the previous paragraph.

The statute permits an exception to the above: modifications of any nature made by the school bus owner itself in its own repair facilities are not prohibited by our statute.

Specific issues concerning "impairment"

As noted above, the Warning System may be installed on new school buses if it does not impair the effectiveness of the lighting equipment required by Standard No. 108. "Impairment" can occur in different ways. One way could be by interfering with the p erformance of required lamp system, including the required school bus warning lamps or the brake warning lamps. The following are examples of interference: * Your system could not replace the identification lamps required by Standard No. 108.

* It must not cause the yellow-red warning system to flash sequentially, rather than alternately as required by the standard.

* The Warning System must not cause the flashing of lights that must be steady-burning (e.g., the stop and taillamps, which, under Standard No. 108, must be steady-burning at all times). Your system appears to have a deceleration warning system operatin g through either original equipment lamps or supplementary ones. The lamps for the system must be steady-burning, and cannot flash. For the same reason, the little lights around the message board must not flash with the "Slow Down" and "Do Not Pass" me ssages.

"Impairment" can also occur when an operator is distracted from the driving task, even momentarily. For this reason, we have discouraged the concept of message boards over the years. However, this is the first time we have been asked to consider it in the context of school bus lighting. We find that there are considerations that are relevant to the operation of school buses, that do not apply to other vehicles. A driver behind a school bus, or approaching from an opposite direction, is more likely t o be cautious because of the awareness of the importance of child safety and the penalties involved in infractions of traffic laws relating to school buses. There is less possibility of impairment existing with advisories relating directly to the action s other drivers are presumably anticipating when in the vicinity of a school bus. With this in mind, we believe your message board, which sends only three messages -- an identification of the vehicle as "School Bus" and advisories of "Slow Down" and "Do Not Pass" -- generally would be permitted under Standard No. 108.

There are a number of specific features about your message board, however, that could distract a driver, and thus constitute "impairment." These are as follows:

* Your sketch indicates that the lamps used for the "School Bus" message would be green. Standard No. 108 restricts the color of required exterior lights to red, amber, and white, the former two of which are associated with caution. Green is not used as an exterior lighting color because it is the recognized signal to proceed rather than to warn. We believe that use of the color green has the potential to create a measure of confusion rather than caution, thereby affecting the effectiveness of the man datory lighting equipment.

* Another feature that could distract a driver is the message "Slow Down," which automatically illuminates anytime the school bus driver brakes. We believe this could be confusing to drivers in other lanes and oncoming vehicles, since it may lead some d rivers to believe the school bus is preparing to stop, when the bus is not. A less confusing feature would be if the Slow Down message is illuminated only when the amber school bus warning lamps flash, and not each time the driver brakes.

State requirements Because your Warning System is not a Federally required item of lighting equipment, its use is also subject to regulation under the laws of the States in which it may be used. Each State regulates the use of school buses in its highway safety programs, setting requirements for pupil transportation safety, including the identification of school buses. NHTSA has issued a number of Highway Safety Program Guidelines for States to use in establishing their highway safety programs. Guideline No. 17, "Pupil Transportation Safety" (copy enclosed) has recommendation that might affect your message board, if the State has decided to adopt the recommendation as State law. The Guideline recommends that school buses should, among other things,

Be identified with the words "School Bus" printed in letters not less than eight inches high, located between the warning signal lamps as high as possible without impairing visibility of the lettering from both front and rear, and have no other lettering on the front or rear of the vehicle, except as required by Federal Motor Vehicle Safety Standards (FMVSS), 49 CFR part 571. (Section IV.B.1.a.)

Depending on the requirements a State has adopted for identifying school buses, the State might limit how your message board displays the words "School Bus," and the "Slow Down" and "Do Not Pass" messages. If you have questions about State law requireme nts, we suggest you consult the American Association of Motor Vehicle Administrators for an opinion. Its address is 4600 Wilson Boulevard, Arlington, Va. 22203.

We appreciate the interest that you and your brother have shown in improving the safety of school children. If you have any further questions, you may call Dee Fujita (202-366-2992) or Taylor Vinson of this office (202-366-5263).

ID: 08-002289as

ID: 20550.drn

Ms. Pat Murrell
Director of Child Development
Louisville Central Community Centers, Inc.
1025 Chestnut St.
Louisville, KY 40203

Dear Ms. Murrell:

This responds to your request for an interpretation of a child development center's responsibilities when it considers the type of vehicle it should use to transport children. Our answer is provided below.

Although your letter mentions pre-school, you do not specify the ages of the children under your Centers' care. I will therefore assume that the Centers care for both school age children and pre-school children.

Some background information may be helpful. The National Highway Traffic Safety Administration ( NHTSA) is authorized to issue and enforce Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles. Our statute at 49 U.S.C. 30112 requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses.

Our statute defines a "schoolbus" 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. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus."

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit child development centers facilities from using their large vans to transport school children even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses, so you should also check Kentucky law to see if there are regulations about how you must transport your children.

NHTSA distinguishes between facilities that provide educational programs and those that are strictly custodial. We do not consider child care programs that are custodial in nature to be "schools." However, in recent interpretations (see the attached July 23, 1998 letter to Mr. Don Cote) we have stressed that it is the purpose for which the bus is used, not the identity of the purchaser, that determines whether a dealer must sell a school bus or may sell another type of bus. Thus, if a custodial center were purchasing the bus to use significantly to transport students to or from school or school-related events, a dealer knowing of this purpose is required to sell a school bus.

In fully addressing the type of vehicle that should be used to transport your children, I am asking that you take the following into consideration. At a June 8, 1999, public meeting, the National Transportation Safety Board (NTSB) issued the attached abstract of a special investigative report on nonconforming buses. The NTSB issued the report after investigating in 1998 and 1999, four crashes 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.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I hope this information is helpful. As you requested, I am enclosing copies of 49 U.S.C. Sections 30112 and 30125. In lieu of the Federal motor vehicle safety standards for school buses, I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than "conventional vans." Please be advised that there are small school buses (under 10,000 lb gross vehicle weight rating) available that seat 15 children. Because it would not be cost effective to do so, we do not recommend retrofitting 15-passenger vans to meet school bus standards.

You also expressed concern about the costs of using school buses (such as higher vehicle costs and higher insurance, maintenance and fuel costs) rather than vans. NHTSA has recently examined this issue. Our inquiries to the vehicle manufacturers indicate that while school buses are somewhat more expensive than large vans, the difference is not so large that it would prevent child care centers from acquiring school buses. The cost range for 15-passenger school buses is approximately $30-32,000, compared to $25-28,000 for 15-passenger vans. The longer service life for school buses will offset a part of this difference.

I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

If you have any further questions about NHTSA's programs please feel free to contact Dorothy Nakama at this address or at (202) 366-2992. Information about NTSB's nonconforming bus report is available from the NTSB's Public Affairs Office at (202) 314-6100.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.10/15/99

ID: 21095b

Mr. James P. Liesenfelt
Transit Director
Space Coast Area Transit
401 South Varr Avenue
Cocoa, FL 32922

Dear Mr. Liesenfelt:

This responds to your letter asking how our school bus regulations apply to your vanpool program. I appreciate this opportunity to respond. You explain that Space Coast Area Transit (SCAT), a public transit agency, purchases 7- to 15-passenger vans and then leases the vans to a contractor, VPSI, Inc. (VPSI). VPSI in turn leases the vans to commuter groups or agencies, some of which use the vans to take students to school.

In a telephone conversation with Dorothy Nakama of my staff, you explained that when SCAT purchases a passenger van, it does not do so with the intent to transport only or primarily a particular group of passengers (i.e., retired people, churchgoers, school children). SCAT's expectation is that each van is available for lease to nonprofit organizations to transport any group of passengers. Market demand determines which group of passengers is transported at any particular time. You also explained that SCAT relies on grants from the Federal Transit Administration to purchase the vans. Since SCAT also purchases large buses (seating upwards of 40 persons) designed for travel on fixed routes, the 7- to 15-passenger vans are not used on fixed routes, or as part of a common carrier route.

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 or leasing a new vehicle (leasing a new vehicle that was not previously sold) to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" 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. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons (49 CFR 571.3(b)) For example, a 15-person van that is likely to be used significantly to transport students is a "school bus." Persons selling or leasing new 15-person vans for such use must sell or lease a van that meets our school bus standards. Persons selling or leasing a 7- to 10-person van for school bus are not subject to our school bus regulations, since the van is not a "school bus" under our definition.

In the situation you describe, SCAT purchases (presumably new) vans, then leases them to VPSI, which leases the vans to various non-profit groups or agencies, some of which may provide school transportation. Your situation is analogous to that of the taxi service described in the enclosed February 19, 1998 letter to Mr. Bob Presley of Harreld Chevrolet. In that situation, Mr. Presley (a vehicle dealer) asked whether new buses he sold to a taxi service to be used in part to take children to and from school must meet Federal school bus safety standards. Our answer to Mr. Presley was he did not have to sell only new school buses: "In view of the small percentage of time that any vehicle in the taxi fleet will be used to transport students, I have concluded that the vehicles in the taxi fleet are not 'significantly' used to transport students from school."

Similarly, in the situation you describe, because there are various transportation customers and specific vehicles are not reserved for school transportation, we believe vehicles in the fleet will be used only a small percentage of time (and not "significantly" used) to transport school children to or from school or school activities. Therefore, a dealer is not obligated to sell new school buses to SCAT.

Our safety standards do not apply to vehicles after the first purchase of a vehicle for purposes other than resale, e.g., after SCAT purchases the vans. Further, because we do not regulate the use of vehicles, we do not prohibit schools or other transportation providers from using non-school buses to transport school children. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, Florida law should be consulted to see if there are regulations about how children must be transported.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using vehicles that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than non-school buses such as 15-passenger vans.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the attached 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.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures

ref:VSA#571.3
d.4/21/2000

ID: 21271.drn

Major Wayne C. Griswold
General Secretary
The Salvation Army
Kansas & Western Missouri
Divisional Headquarters
3637 Broadway - PO Box 412577
Kansas City, MO 64141-2577

Dear Major Griswold:

This responds to your January 24, 2000, request for an interpretation of the National Highway Traffic Safety Administration's (NHTSA's) prohibition on dealers selling new 15-person vans for transporting children to or from school or related events. You wish to know whether the prohibition affects your church as well as schools. Our answer is provided below.

Some background information may be helpful. 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 or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards. Accordingly, persons selling or leasing a new "school bus" must sell or lease a vehicle that meets the safety standards applicable to school buses. Our statute defines a "schoolbus" 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. 49 U.S.C. 30125. By regulation, the capacity threshold for school buses corresponds to that of buses -- vehicles designed for carrying more than ten (10) persons. For example, a 15-person van that is likely to be used significantly to transport students is a "school bus." Persons selling or leasing new 15-person vans for such use must sell or lease a van that meets our school bus standards.

In the past, when reviewing a dealer's sale of a new vehicle, NHTSA looked at the nature of the institution purchasing the vehicle. In recent interpretations (see the attached July 17, 1998, letter to Mr. Greg Balmer of the YMCA), we noted that it was more appropriate to consider the extent to which the buses are used to carry children to or from school or related events. In the Balmer letter, we stressed that, even if a bus were sold to a facility that provides custodial care (i.e., to a facility that is not a "school"), if that facility were purchasing the new bus to use significantly to transport students to or from a school or events related to a school, a dealer knowing of this purpose would be required to sell a school bus.

Turning to your letter, you ask about vehicles that would be used to transport children in your residential care units to their school each morning. We believe that such use is a "significant use" of the vehicles to transport students to or from school or related events. A dealer knowing of this purpose that wishes to sell you a new bus (e.g., a 15-person van) would have to sell a bus that meets our school bus standards. This would be the case even if the bus were also to be used for transportation for your character building programs and other social services for youngsters.

Because our laws apply only to the manufacture and sale of new motor vehicles, we do not prohibit schools or other facilities from using large vans to transport school children, even when the vehicles do not meet Federal school bus safety standards. However, each State has the authority to set its own standards regarding the use of motor vehicles, including school buses. For this reason, Missouri law should be consulted to see if there are regulations about how children must be transported.

In conclusion, we wish to emphasize that school buses are one of the safest forms of transportation in this country, and that we therefore strongly recommend that all buses that are used to transport school children be certified as meeting NHTSA's school bus safety standards. In addition, using 15-person vans that do not meet NHTSA's school bus standards to transport students could result in liability in the event of a crash.

I am enclosing NHTSA's publication: "School Bus Safety: Safe Passage for America's Children." This brochure explains the safety enhancements of a school bus that makes school buses safer than "conventional vans." There are small school buses available that seat 15 children. While school buses are more expensive than large vans, we believe that the cost difference is not so large that it should prevent facilities from acquiring school buses. The cost range for 15-person school buses is approximately $30-32,000, compared to $25-28,000 for 15-person vans. The longer service life for school buses will offset a part of this difference.

Our belief that vehicles providing the safety of school buses should be used whenever transporting children in buses is shared by the National Transportation Safety Board (NTSB). At a June 8, 1999, public meeting, the NTSB issued the attached 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.

In the abstract of its report, the NTSB issued several Safety Recommendations, including the following that was directed to child care providers such as the National Association of Child Care Professionals, the National Child Care Association, and Young Mens' and Young Women's Christian Associations:

Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use school buses or buses having equivalent occupant protection to school buses to transport children.

I am also enclosing NHTSA's February 1999 "Guideline for the Safe Transportation of Pre-school Age Children in School Buses." This guideline establishes NHTSA's recommendations for how pre-school age children should be transported in school buses.

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

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosures
ref:VSA#571.3
d.3/30/00