September 17, 1998

Ms. Lynn L. White
Executive Director
National Child Care Association
1016 Rosser St.
Conyers, GA 30012

Dear Ms. White:

This responds to your letter regarding sales of new large passenger vans to child care facilities. You ask for the National Highway Traffic Safety Administration (NHTSA) to confirm its longstanding interpretation that child care facilities are not "schools," and thus are not subject to our school bus requirements, even when transporting children to or from schools. As explained below, we have carefully considered your suggested interpretation and regret to inform you that we cannot confirm it.

While we agree that child care facilities providing custodial care are not schools, we cannot agree that all buses sold to such a facility are excluded from Federal school bus regulations regardless of the intended use of the vehicles. If a bus will be used significantly for transporting children to or from school, such a vehicle is a bus, even if the purchaser is a child care facility.

Our statue 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. Under our regulations, a "bus" is any vehicle, including a van, that has a seating capacity of 11 persons or more. Our statue defines a "school bus" as any vehicle that is designed for carrying 11 or more persons and which is likely to be "used significantly" to transport preprimary, primary, and secondary students "to or from school or an event related to school" (emphasis added). 49 U.S.C. 30125. Therefore, a large van (such as one designed for 15 passengers) that is likely to be used significantly to transport students to or from school is a "school bus," even if it is sold to a custodial child care facility, a dance studio (see enclosed letter of June 1, 1998, to Cox Chevrolet), or the YMCA (see enclosed letter of July 17, 1998, to the YMCA of the USA).

Nothing in NHTSA's statues or the School Bus Amendments of 1974 (and its legislative history) limit the applicability of NHTSA's statues to sales to "bona fide schools" (as you describe them). In its interpretation letters addressing dealers' sales, NHTSA focuses not on the nature of the institution or the type of service provided (i.e., educational or custodial care), but on whether the purchaser will use the bus "significantly" to provide transportation for school children "to or from school." Whether buses are "used significantly" to transport the students is an issue that the agency finds appropriate to resolve case-by-case, focusing on the intended use of the vehicle. If the bus will be used for such purpose, a school bus must be sold.

NHTSA has recently addressed the issue of a dealer's sale of a new large passenger van to a child care facility that will significantly use the van for school transportation. The letter is dated July 23, 1998, to Mr. Don Cote of Northside Ford in San Antonio, Texas (copy enclosed). In that letter, we explain that the large passenger van is a "school bus" under our regulations. Thus, when a dealer sells or leases a new van for such use, the dealer must sell or lease only buses that meet Federal motor vehicle safety standards for school buses, even when the purchaser is a child care facility. 1

The Northside Ford letter discusses NHTSA's reexamination of two previous letters addressed to Ms. Vel McCaslin of Grace After School. In arriving at the conclusions set forth in the Northside Ford letter, NHTSA decided that the letters to Ms. McCaslin did not focus enough on 49 U.S.C. 30125. To the extent that the McCaslin letters are inconsistent with it, the Northside Ford letter superseded the letters to Ms. McCaslin.

Because of the increasing number of pre-school aged children being transported by school buses, and the pupil transportation community's request for guidance on how to safely transport them, the agency recently assessed this problem. It is noted that even though most large school buses do not have lap belts or anchorages for attaching child restraints, small school buses are required to have lap belts. NHTSA conducted dynamic tests to evaluate the most beneficial method(s) to transport pre-school aged children, taking into consideration the use of seat belts, child safety seats and available spacing between bus seats. Based on these crash test results, the agency determined that pre-school aged children should be in child restraint systems when they are transported in school buses. In conjunction with many organizations and groups involved in transporting pre-school aged children, NHTSA developed a draft set of guidelines, with the final guidelines to be released in October 1998. NHTSA's draft guidelines recommend the installation of lap belts or anchorages designed for securing child restraint systems on large school buses. The agency does not recommend pre-school aged school bus passengers to wear lap belts as an occupant protection device.

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

Sincerely,

Frank Seales, Jr.
Chief Counsel
Enclosures (3 letters)

1) Please note that NHTSA has never stated that day care facilities that provide only custodial care are "schools." NHTSA's laws do not affect new bus sales to child care facilities that do not provide "significant" transportation for school aged children "to or from" school.