August 26, 1988

Mr. R. C. Rost
President
Minnesota Body & Equipment Co.
7380 Highway 101
Shakopee, MN 55379-3097

Dear Mr. Rost:

This is in reply to your letter of March 18, 1988, bringing our attention to a conflict between a Federal motor vehicle safety standard applicable to school bus lighting, and State requirements applicable to these vehicles.

You have informed us that at least two States, Iowa and Wisconsin, prohibit Head Start buses in effect from being identified as a school bus, either by words or by color, and from having the warning lamp system required by Standard No. l08. Paragraph S4.1.4 of Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment requires each school bus to be equipped with a four or eight lamp signal system, in addition to other required lighting equipment. You also indicate that some regional Headstart authorities reportedly do not recognize the interpretations and regulations of this agency regarding school bus safety. You have asked that Head Start buses be exempted from the warning law requirement if a color other than school bus yellow is used.

In 1974, Congress amended the National Traffic and Motor Vehicle Safety Act to require the issuance of certain Federal motor vehicle safety standards for school buses. The amendments defined "school bus" as:

a passenger motor vehicle which is designed to carry more than 10 passengers in addition to the driver, and which the Secretary determines is likely to be significantly used for the purpose of transporting primary, preprimary, or secondary school students to or from such schools or events related to such schools." (15 U.S.C. 1391(14)) (Emphasis added.)

On December 29, 1977, the then Chief Counsel of this agency issued an opinion under 15 U.S.C. 1391(14) that Head Start facilities are considered preprimary schools and that buses transporting children to and from those schools are defined as school buses under Federal law and accordingly are subject to the Federal school bus safety standards. Specifically, the letter stated: The NHTSA interprets the term "school" broadly, because the agency believes that this is the intent of the Motor Vehicle and School Bus Safety Amendments of 1974 (Pub. L. 93-492) which directed the creation of the school bus safety standards. Since this head start program is basically an educational program for preprimary students, the agency had determined that those facilities are schools and buses transporting children to and from them must comply with the Federal school bus safety requirements if they transport 10 or more passengers.

I am sorry to inform you that we cannot grant your request for an exemption. The 1977 opinion of this agency regarding Congress' 1974 mandate remains operative. The Federal motor vehicle safety standards applicable to buses defined under Federal law as school buses continue to apply in all respects to buses used to carry preprimary school pupils such as those in the Head Start program. Any manufacturer who omits the warning lamp system required by paragraph S4.1.4 of Standard No. 108, or who delivers a bus with the warning lamp system inoperative, is in violation of the National Traffic and Motor Vehicle Safety Act, and subject to civil penalties. The manufacturer is also subject to the provisions of the Act for notification and remedy of the noncompliance with Standard No. l08.

The effect of the preemption provision in section 103(d) of the Act (15ÿU.S.C. 1392(d)) is that a State may not adopt or enforce a standard or requirement that regulates the same aspect of safety performance as one of the Federal standards unless that State standard or requirement is identical to the Federal one. While the statute also permits a State to establish a higher standard of performance for vehicles procured for its own use, we would not view an exemption from the warning light requirement as a "higher standard of performance." Thus, regardless of how a State defines "school bus," a State cannot prohibit a van, with seating capacity large enough to be defined as a school bus under Federal law, from being equipped with a school bus warning system that is designed and wired as required by paragraph S4.l.4 of Standard No. l08. Although each State has the authority to establish laws for the use of vehicles on its roads, those State laws may not override Federal laws. The effect of Federal preemption is that the school bus warning system must continue to operate as required by paragraph S4.l.4(b)(ii), and a State may not directly or indirectly require tampering with that equipment in order to comply with State usage laws.

We are providing copies of this letter to the officials in Iowa and Wisconsin mentioned in your letter.

Sincerely,

Erika Z. Jones
Chief Counsel
ref:l08,
d.8/26/88

cc: J.P. Golvinaux
Dwight R. Carlson
Frank Potts
Donald Schneider