02-27996. Federal Motor Vehicle Safety Standards; Definition of Multifunction School Activity Bus

AGENCY:

National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

Under existing Federal requirements, all school buses must be equipped with crash avoidance devices designed to control traffic (i.e., flashing lights and stop arms) because the use of most school buses includes stopping in the roadway to pick children up from and drop them off at home. There is a need in those circumstances to stop nearby traffic during the loading and unloading of children.

This notice proposes to establish a subcategory of relatively small school buses that would not be used to pick school children up from or drop them off at home. These school buses would, accordingly, not be required to have traffic control features. They would, however, be required to meet all other school bus crash avoidance requirements and all crashworthiness and post-crash requirements. These buses would be known as “multifunction school activity buses.”

It is anticipated that these buses would be used by child care facilities to drop children off at school at the beginning of the school day or pick them up from school at the end of the school day, by schools to transport children from school to extracurricular activities and back, and by “coordinated transportation” systems to provide a wide range of transportation services that can include transporting children to or from Head Start Programs and transporting senior citizens to social service facilities. These buses could be used for the Head Start Program transportation because they would qualify as “allowable alternate vehicles” under the regulations for that program.

DATES:

You should submit your comments early enough to ensure that Docket Management receives them not later than January 6, 2003.

ADDRESSES:

You may submit your comments in writing to: Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC, 20590. Alternatively, you may submit your comments electronically by logging onto the Docket Management System Web site at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to view instructions for filing your comments electronically. Regardless of how you submit your comments, you should mention the docket number of this document.

You may call the Docket at 202-366-9324. You may visit the Docket from 10 a.m. to 5 p.m., Monday through Friday, except for Federal holidays.

FOR FURTHER INFORMATION CONTACT:

For non-legal issues, you may call Mr. Charles Hott, Office of Crashworthiness Standards at [phone]. His FAX number is [phone].

For legal issues, you may call Ms. Dorothy Nakama, Office of the Chief Counsel at [phone]. Her FAX number is [phone].

You may send mail to both of these officials at National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC, 20590.

SUPPLEMENTARY INFORMATION: 

Table of Contents

Executive Summary

I. What Is the Purpose of This Rulemaking?

II. Relevant Laws and Policies of Affected Federal Agencies

A. National Highway Traffic Safety Administration

B. U.S. Department of Health and Human Services “ Head Start Bureau

C. Federal Transit Administration

D. National Transportation Safety Board

IV. How Did This Rulemaking Begin?—Rabun-Gap Nacoochee School Petition

V. Notice of Proposed Rulemaking “ What Is the Multifunction School Activity Bus?

A. Vehicle Classification

B. Must Meet Most School Bus Standards

C. Would Not Be Required To Meet S5.1.4 of Standard No. 108 and Standard No.131

D. Would Be Required To Meet School Bus Seating Requirements

E. Relationship of This Rulemaking to Laws and Policies of Other Federal Agencies

1. U.S. Department of Health and Human Services “ Head Start Bureau

2. Federal Transit Administration

3. National Transportation Safety Board

F. Additional Issues

VI. Leadtime

VII. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

B. Executive Order 13132 (Federalism)

C. Executive Order 13045 (Economically Significant Rules Affecting Children)

D. Executive Order 12778 (Civil Justice Reform)

E. Regulatory Flexibility Act

F. National Environmental Policy Act

G. Paperwork Reduction Act

H. National Technology Transfer and Advancement Act

I. Unfunded Mandates Reform Act of 1995

J. Plain Language

K. Regulation Identifier Number (RIN)

Proposed Regulatory Text

I. Executive Summary

When selling a new bus that is likely to be used significantly to transport preprimary, primary, secondary students to or from school or related events, a motor vehicle dealer is required by Federal law to sell a bus that meets the Federal motor vehicle safety standards for school buses. In this document, we (NHTSA) propose to create a subcategory of school buses, the “multifunction school activity bus” (MFSAB). The MFSAB would be defined as a school bus with a gross vehicle weight rating (GVWR) of 6,804 kg (15,000 pounds) or less sold for purposes that do not include transportation between home and school for students from kindergarten through Grade 12. Since the MFSAB would not be used by schools for picking up children from, or dropping them off at, home, they would not make stops under circumstances in which there is a need to control traffic.

As a consequence of their more limited usage compared to other school buses, the MFSAB would not be required to be equipped with traffic control features, i.e., the 4-way/8-way alternating flashing lights and stop arms. They would, however, be required to meet all requirements in the school bus crashworthiness, all other requirements in the crash avoidance safety standards, and all post crash standards.

II. What Is the Purpose of This Rulemaking?

This notice proposes to create a subcategory of school buses consisting of school buses with a gross vehicle weight rating of 6804 kg (15,000 pounds) and under that meet all Federal Motor Vehicle Safety Standards (FMVSSs) applicable to school buses, except for S5.1.4 of Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, and Standard No. 131, School Bus Pedestrian Safety Devices. This rulemaking seeks to resolve the conflict between current NHTSA requirements that all new school buses be equipped with those devices, regardless of whether a particular school bus will ever be used in circumstances for which those devices are intended, and State laws that do not permit the use of those devices on trips that do not involve transporting children between home and school. MFSABs within the new subcategory of school buses would not be required to be equipped with flashing lights and stop arms. They would be intended to be used to transport children to places other than between home and school, and would afford children the crashworthiness protection of other school buses.

As will be explained in more detail, creating the MFSAB school bus classification without the Standards Nos. 108 and 131 traffic control devices will facilitate Head Start programs' purchases of school buses (which will be the “allowable alternate vehicles” defined in Head Start regulations). It is anticipated that this new school bus classification will also be used for coordinated transportation purposes by State and local social services agencies, that may, for example, use the school buses to transport Head Start participants in the morning, and to transport senior citizens later in the day. At present, there are Federal restrictions on financial assistance to purchase school buses that exclusively transport students and school personnel in competition with a private school bus operator. If made final, we anticipate that this rulemaking will facilitate funding from the U.S. Federal Transit Administration to Head Start programs and coordinated transportation providers to purchase the school buses.

III. Relevant Laws and Policies of Affected Federal Agencies

A. National Highway Traffic Safety Administration

NHTSA's statute requires any person selling or leasing a new vehicle to sell or lease a vehicle that meets all applicable standards issued by the agency. Under our regulations, a “bus” is any vehicle (including a van) that has a seating capacity of 11 persons or more. Our statute defines a “school bus” as any vehicle that is designed for carrying 11 or more persons and that is likely to be “used significantly” to transport “preprimary, primary, secondary” students to or from school or related events. (Emphasis added.) 49 U.S.C. section 30125. For example, many before and after school child care facilities use 15-passenger vans to transport children between school and the care facility several times a week. A 15-passenger van that will be used in that way is regarded as likely to be “used significantly” to transport students and is, therefore, a “school bus” and must meet the school bus safety standards.

More broadly, we deem a bus likely to be used significantly to transport preprimary, primary, or secondary students to or from school or school-related events if, for example, it will be used for any of the following purposes on a regular basis: Pick those students up from home to take them to school; pick them up from a place other than home (e.g., a before-school care facility) and drop them off at school; or pick them up from school and drop them off at home or a place other than home (e.g., an after-school care facility). Under current NHTSA interpretations, the term “preprimary, primary, and secondary school” includes kindergarten, elementary school, middle or junior high school, and senior high school. However, the term “school” does not include pre-school (nursery) centers, day care centers or Head Start programs.

Thus, for example, in answering questions about the sale or leasing of a new bus in situations involving transportation of children to or from multiple institutions, one of which was a school, we have informed motor vehicle dealers that new buses sold to day-care providers and other entities that routinely drop students off at school or pick them up from school are required to be buses that meet the school bus safety standards. (See, e.g., July 23, 1998 letter to Mr. Don Cote, Northside Ford, explaining that when the dealership sells or leases new buses to a child care facility to drop-off students at school and pick them up from school on “regular school days,” the dealership must sell or lease only buses that meet Federal motor vehicle safety standards (FMVSSs) for school buses. A copy of this letter has been placed in the docket for this rulemaking.)

In our interpretations of section 30125, we have stated that in order to be sold as a school bus, a vehicle must meet all applicable school bus FMVSSs and requirements, including the 4-way/8-way alternating flashing lights required by Standard No. 108 and the stop-arm required by Standard No. 131. Thus, dealers cannot sell school buses that will be used only to transport children on trips that do not include “regular route” school transportation (i.e., normal to and from school transportation involving multiple stops for the purposes of pick-up from home and/or drop-off at home) unless those buses are equipped with flashing lights and stop arms. This is true even if these devices are not likely to be used, or State law does not allow them to be used, on such trips.

After selling or leasing school buses, dealers cannot remove the flashing lights and stop-arms from them. Under 49 U.S.C. section 30122, “Making safety devices and elements inoperative,” manufacturers, distributors, dealers, or motor vehicle repair businesses may not “knowingly make inoperative” any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard.

B. U.S. Department of Health and Human Services—Head Start Bureau

The U.S. Department of Health and Human Services” (DHHS) Head Start Bureau administers the Head Start Program. There is no statutory requirement for the Head Start Program to provide transportation for children participating in the Program. However, if a Head Start agency provides transportation, it must follow the regulations established in 45 CFR part 1310 Head Start Transportation. Beginning on January 18, 2006, if it provides transportation for the children, a Head Start agency must comply with the following provision in 45 CFR section 1310.12 “Required use of School Buses or Allowable Alternate Vehicles:'

(a) Effective January 18, 2006, each agency providing transportation services must ensure that children enrolled in its program are transported in school buses or allowable alternate vehicles that are equipped for use of height- and weight-appropriate child restraint systems, and have reverse beepers.

“Allowable alternate vehicle” is defined at 45 CFR section 1310.3 as: “a vehicle designed for carrying eleven or more people, including the driver, that meets all the Federal Motor Vehicle Safety Standards applicable to school buses, except 49 CFR 571.108 and 571.131.”

C. Federal Transit Administration

Under the Federal Transit Administration's (FTA) statutory authority at 49 U.S.C. section 5323(f) “School Transportation,” the FTA may provide financial assistance “for a capital project, or to operate mass transportation equipment or a mass transportation facility, only if the applicant agrees not to provide schoolbus transportation that exclusively transports students and school personnel in competition with a private schoolbus operator.” Thus, FTA funds may not be used to purchase schoolbuses that will be used exclusively to transport students and school personnel. In order to make FTA funds available to Head Start agencies to purchase buses to transport Head Start children, on June 24, 1994, the FTA issued an interpretation that Head Start is a broad-based social services program rather than an educational program.

The FTA provides funding to Regional Transit Authorities, which provide transportation services to different population groups, e.g., children, persons with disabilities, senior citizens, and others in need of public transportation services. Many of these authorities also have contracts with Head Start to transport its participants to and from Head Start programs. Thus, these authorities need buses that can serve multiple needs.

D. National Transportation Safety Board

In a report dated June 8, 1999, the National Transportation Safety Board (NTSB) recommended that the 50 States and the District of Columbia:

Require that all vehicles carrying more than 10 passengers (buses) and transporting children to and from school and school related activities, including, but not limited to, Head Start programs and day care centers, meet the school bus structural standards or the equivalent set forth in 49 Code of Federal Regulations Part 571. Enact regulatory measures to enforce compliance with the revised statutes.

The NTSB also recommended that child transportation providers: “Inform your members about the circumstances of the accidents discussed in this special investigation report and urge that they use buses built to Federal school bus structural standards or the equivalent to transport children. (H-99-25)” The NTSB made these recommendations after investigating four crashes involving buses that did not meet NHTSA's school bus standards that resulted in the deaths of eight children, one adult, and injuries to 36 people.

IV. How Did This Rulemaking Begin?—Rabun-Gap Nacoochee School Petition

Rabun-Gap Nacoochee School of Rabun-Gap, Georgia (Rabun) petitioned us to create a new motor vehicle type classification known as the “school activity bus.” Rabun is a private school that offers education from Grades 6 through 12.

Specifically, Rabun petitioned us for the following:

• Create an official “category” of school buses to be called “school activity buses” that consists of buses that are used for transporting school children to or from school-related activities, but are not used to transport children between home and school. Require that the classification “school activity bus” be displayed on the vehicle certification label. (49 CFR 576.4(g)(7) and 49 CFR 568.4(a)(6).)
• Exclude school buses that meet the criteria for this new category from the requirement for School Bus Warning Lights at 49 CFR part 571.108, S5.1.4. (Federal Motor Vehicle Safety Standard No. 108, Lamps, reflective devices, and associated equipment.)
• Exclude school buses that meet the criteria for this new category from the requirement for Stop Signal Arms at 49 CFR part 571.131 (Federal Motor Vehicle Safety Standard No. 131, School Bus Pedestrian Safety Devices.)
• Provide an alternative to passenger seating and crash protection so that buses meeting the criteria for this new category may either meet the compartmentalization requirements of 49 CFR 571.222, School Bus Passenger Seating and Crash Protection (Standard No. 222), or be equipped with either an “acceptable” passive restraint system (other than compartmentalization) or seat belts for each designated seating position.
• Require buses meeting the criteria for this new category to provide approximately 18 inches of seat [seating] width for each designated seating position. In a letter dated March 26, 2001, NHTSA granted Rabun's petition for rulemaking.

V. Notice of Proposed Rulemaking— What Is the Multifunction School Activity Bus?

The following describes the proposed FMVSS features of a “multifunction school activity bus” that would distinguish it from other school buses and a “bus” such as a 15-passenger van. We also discuss the extent to which we propose to adopt requests in Rabun's petition for rulemaking. For those requests that we are not proposing to adopt, we explain why we are not doing so.

A. Vehicle Classification

Petitioner Rabun asked that the proposed new vehicle be called a “school activity bus.” We believe that a more generic name is needed because we believe that the proposed type of school bus would be used for more than school activity trips. As earlier discussed, we are proposing the new vehicle classification with the expectation that this new school bus type would be used by coordinated transportation systems and other types of transportation service, such as Head Start and day care. “Coordinated transportation” is a term used by the transit community to signify that the transportation is coordinated among all user transportation organizations. These services usually involve social services transportation including senior citizens and/or Head Start. We propose to call the new vehicle a “multifunction school activity bus” (MFSAB), a term that does not necessarily imply a use limited to school activity trips.

Petitioner Rabun asked that the classification “school activity bus” be required to be displayed on the vehicle certification label so that its intended use is clearly stated. Rabun recommended that 49 CFR 567.4(g)(7) be amended to require this vehicle type to be listed on the certification label. Rabun also recommended that the incomplete vehicle document required by section 568.4(a)(6) be amended to require the vehicle classification. The agency notes that a vehicle's classification, as determined in accordance with the definitions in 49 CFR part 571.3 Definitions, is already required to be on the vehicle's certification label and on any incomplete vehicle document. Although Rabun asked us to do so, the agency believes that it is not necessary to propose to amend parts 567 and 568 to provide another example of a type classification.

B. Must Meet Most School Bus Standards

As a type of bus, the proposed “multifunction school activity bus” would be required to meet all the FMVSSs applicable to a “bus.” As a type of school bus, it would also have to meet provisions in the following FMVSSs applicable to school buses:

Standard No. 105, Hydraulic and electric brake system, requires school buses with hydraulic brakes to stop in shorter distances than other vehicle types;

Standard No. 111, Rearview mirrors, requires the school bus driver to be able to see, either directly or through a system of mirrors, certain areas in front of and along both sides of the school bus;

Standard No. 217, Bus emergency exits and window retention and release, specifies means of readily accessible emergency egress, makes the emergency exits easier for children to use and requires increased outside conspicuity, to aid in nighttime evacuation;

Standard No. 220, School bus rollover protection, specifies minimum strength requirements for school bus roofs, to reduce the likelihood of roof collapse in the event of a rollover, and requires that emergency exits (except roof exits) be operable after the roof is subjected to forces that can be encountered in rollovers;

Standard No. 221, School bus body joint strength, specifies minimum strength requirements for body panel joints, to improve the structural integrity of the passenger compartment, and to reduce the likelihood of lacerative injuries to occupants caused by the sharp edges of body panels that tear loose in crashes;

Standard No. 222, School bus passenger seating and crash protection, specifies seating restraining barrier and impact zone requirements for school buses, relying on compartmentalization between well-padded and well-constructed energy-absorbing seats to provide occupant protection, and specifies requirements for wheelchair restraint systems;

Standard No. 225, Child restraint anchorage systems, establishes requirements for child restraint anchorage systems (except school buses do not have to meet the requirement for vehicles to be equipped with tether anchorages);

Standard No. 301, Fuel system integrity, specifies requirements for the integrity and security of the entire fuel system, including the fuel tanks, fuel pump, fuel delivery system, emission controls, lines, and connections in severe barrier impact crash tests; and

Standard No. 303, Fuel system integrity of compressed natural gas vehicles, specifies, for school buses using compressed natural gas, requirements for the integrity and security of the entire fuel system and connections in severe barrier impact crash tests.

In Section D., below, we explain why, despite Petitioner Rabun's request, we have decided not to propose to exclude the “multifunction school activity bus” from Standard No. 222, School bus passenger seating and crash protection.

C. Would Not Be Required To Meet S5.1.4 of Standard No. 108 and Standard No. 131

Petitioner Rabun seeks relief from the traffic control devices that the FMVSSs specify for school buses. These traffic control devices are the 4-way/8-way alternating flashing warning lamps specified in Standard No. 108 and the stop arm specified in Standard No. 131.

Petitioner Rabun said that regular route school buses that are used for transportation between home and school are required by State regulations to utilize the warning lights and stop arms when stopping on a highway to receive and discharge student passengers along the route. The agency notes that in every State, motorists are required to stop and refrain from passing a school bus while those traffic control warning devices are activated. A survey conducted by the National Association of State Directors of Pupil Transportation Services indicated that most States require the use of these devices when a bus is receiving or discharging student passengers along a street or highway.

Petitioner Rabun said that when school buses are engaged in activity trips, student passengers are typically transported from the school to the activity site and returned to the school. Rabun said that it would be very unusual for the bus to stop along a highway to receive or discharge passengers during one of these trips. Rabun stated that when a school bus is engaged in an activity trip, it would normally be prohibited by State law from using the school bus warning lights and stop signal arm, which are unique to school buses.

The agency notes that in many cases, the same is true for Head Start buses and day-care buses that provide to and from school transportation as well as buses used by coordinated transportation systems for to and from school and Head Start transportation. Child day-care buses normally would load students at their facility and drop them off at the school, with no stops along the way to drop off or pick up passengers.

DHHS's regulation, Head Start Transportation (at 45 CFR part 1310) generally requires that “each agency providing transportation services must ensure that in planning fixed routes the safety of the children being transported is the primary consideration.” (45 CFR section 1310.20(a)). Among its specific requirements are: “When possible, stops must be located to eliminate the need for children to cross the street or highway to board or leave the vehicle” (45 CFR section 1310.20(b)(5)) and “If children must cross the street before boarding or after leaving the vehicle because curbside drop off or pick up is impossible, they must be escorted across the street by the bus monitor or another adult.” (45 CFR section 1310.20(b)(6)).

The agency agrees with Rabun that the alternating flashing warning lights and stop-arm are traffic control devices and that their use on a bus is generally prohibited by State law except when the bus is receiving or discharging student passengers along a roadway. The agency is not aware of any State that permits using these school bus traffic control devices on trips other than ones between school and home.^[1]

The agency tentatively concludes that 4-way/8-way alternating flashing lights and stop-arms are not needed if a school bus is not going to be used to transport students between home and school. The agency does not believe that there are any safety benefits from requiring stop-arms and alternating flashing lights on school buses that are solely used for trips during which State law prohibits their use.

Some States do not allow any vehicle other than a school bus that is painted yellow to have 4-way/8-way alternating flashing lights and stop arms. Other States, for example, Georgia, Maryland, and Indiana, require that the alternating flashing lights and stop-arms be completely removed from the buses if they are used for purposes other than transporting school children to and from home.

D. Would Be Required To Meet School Bus Seating Requirements

Petitioner Rabun argued that the agency should provide an alternative to school bus passenger seating and crash protection so that school buses certified as MFSABs may meet either Standard No. 222, School bus passenger seating and crash protection or be excluded from compartmentalization requirements, provided that they are equipped with an “acceptable” passive restraint system, or that they are equipped with occupant seat belt restraints for each designated seating position. Rabun further argued that the new school bus type should provide approximately 18 inches of seat width (seating room) for each designated seating position. Rabun's rationale was that most new vehicles have the option of providing either a passive occupant protection system or an active occupant protection system. Only a school bus, however, must meet the passive occupant restraint system specified in Standard No. 222.

Rabun stated that the logic behind requiring passive systems on school bus routes is not difficult to understand. However, the petitioner believes that the wisdom of this logic is coming under increasing scrutiny. Rabun stated that, in their search for an activity bus, school officials seek a crash protection alternative to compartmentalization, the construction techniques that give the school bus its passive occupant restraint capability. Rabun stated that purchasers of this new bus type would be looking for a passenger seating system that would provide comfort for trips of several hours' duration and would be comfortable for tall and/or large passengers who have difficulty fitting into the typical school bus seat bench and the narrow space provided for knees.

The agency does not agree with Rabun's reasons for not requiring the MFSAB to meet Standard No. 222. Rabun's belief that manufacturers of most new vehicles have the option of providing either a passive occupant protection system or an active occupant protection system is incorrect. Except for motorcycles, all motor vehicles with a gross vehicle weight rating (GVWR) of 4,536 kg (10,000 pounds) or less are required to have a type I (lap belt) or a type II (lap and shoulder belt) at each designated seating position (active system). In addition to the seat belt requirement, passenger cars, trucks, and multipurpose passenger vehicles with a GVWR of 3,863 kg (8,500 pounds) or less and an unloaded vehicle weight of less than 2,500 kg (5,500 pounds) are required to have airbags (passive system) at the front outboard seating positions. Multipurpose passenger vehicles with a GVWR greater than 4,536 kg (10,000 pounds) are required to have seat belts at all seating positions. Only buses and school buses with a GVWR over 4,536 kg are not required to have seat belts for all seating positions.

For the following reasons, we also do not agree with Rabun's argument that the seating requirements specified in Standard No. 222 do not allow for comfort. Nothing in Standard No. 222 prohibits school bus seats from reclining. Standard No. 222's test procedure at S6.4 states: “Seat back position. If adjustable, a seat back is adjusted to its most upright position.” Standard No. 222 is a performance standard, not a design standard. Therefore, as long as the MFSAB manufacturer certifies (and ensures) that its MFSAB will meet Standard No. 222 when NHTSA tests the MFSAB, nothing in Standard No. 222 would have the effect of prohibiting extra padding or leather on school bus seats.

Rabun is apparently under the impression that the Standard No. 222 specifies that school bus seats be close together, which is not the case. At present, nothing prohibits school buses from being ordered with maximum seat spacing that provides for more leg room. The seat spacing requirements for school buses over 4,536 kg (10,000 pounds) gross vehicle weight rating (GVWR) allows for comfortable seating. Standard No. 222 at S5.2 specifies that the seats be spaced no further than 610 mm (24 inches) from the seating reference point to the seat back or restraining barrier in front of it. In practice, however, in order to maximize seating capacity in the school bus, schools and school districts order most school buses used on regular routes with seat spacing of approximately 482.6 to 508 mm (19 to 20 inches) from the seating reference point.

S5.2 in effect allows for approximately 711.2 to 787.4 mm (28 to 31 inches) for seat spacing pitch distance (the distance between the backs of two school bus seats, where one seat is placed directly in front of the other seat). The 787.4 mm (31 inches) seat spacing is similar to that found on coach-type intercity buses. School bus manufacturers Thomas Built Buses, and Blue Bird Body Company both offer activity seats in school buses that are comfortable on long trips. In addition to the school bus manufacturers, Freedman Seating Company, a seat manufacturer, also offers activity-seating systems that are designed for comfort. The Freeman activity seating systems have seat pitch spacing of approximately 787.4 mm (31 inches), which should provide adequate knee room.

We note that there are no parallel spacing requirements between rows (to provide knee room) for school buses with a GVWR of 4,536 kg (10,000 pounds) or under.

Rabun argued that S4.1 of Standard No. 222 should be modified so that seating positions on buses are wider. Rabun suggested that the number of seating positions in a bench seat should be calculated by dividing the bench seat width by 457.2 mm (18 inches) (for each seating position). Rabun believes that its recommended change would also eliminate the situation of having a bench seat on a school activity bus equipped with three sets of seat belts when only two typical teenage passengers will fit on the seat.

The agency notes that Rabun's argument for considering the minimum seat width of each designated seating position to be 457.2 mm (18 inches) appears to be based on the misconception that the number of seating positions is an exact figure that must be the same as the number of seats derived from the formula NHTSA uses to determine loading forces when testing school bus seats. Rabun also appears to believe that school bus users are bound by the number of seating positions determined under Standard No. 222, and that that Standard unduly restricts the amount of seat width allowed for persons sitting in the school bus seat. As explained below, we do not agree with Rabun's understanding of minimum seat width requirements.

Standard No. 222 requires that seats in school buses be able to withstand specified minimum/maximum forces, which are intended to ensure that the seats (and restraining barriers) are capable of providing acceptable levels of crash protection to seated occupants who may impact structures within the bus during a crash or sudden driving maneuver. In order to determine the amount of force to apply to a seat during testing, Standard No. 222 (at S4.1) specifies that the width of the seat is divided by 381 and rounded to the nearest whole number. That divisor is used because 381 mm (15 inches) is the seat width that is necessary to accommodate children and younger teenagers. For example, a 990.6 mm (39 inches) wide seat (the most popular width for school bus seats) divided by 381 equals 2.6, which is rounded up to 3. The loading to which the seat is subjected for the performance tests is the specified loading multiplied by 3.

The logic behind this procedure is to subject school bus seats to force levels sufficiently high enough to ensure that the seat is unlikely to fail as a result of a severe crash. The force derived in the above example by rounding 2.6 up to 3 for a 990.6 mm (39 inches) seat is necessarily a greater force than would be exerted if only two occupants were in the seat. Subjecting seats to this increased loading provides an increased margin of safety for school bus seats.

The agency has addressed the seating width issue in the past. In an October 9, 1990 Federal Register document (55 FR 41117)(No DOT Docket No.), we denied a petition for rulemaking asking that Standard No. 222 be amended by specifying the seating capacity of school bus seats. The petitioner sought to have the agency revise the formula discussed above by providing for dividing the seating width by 15 (seat width in inches) and ignoring the remainder. Thus, a 39-inch wide seat would be considered as having two seating positions. The petitioner asserted that the change was needed to avoid overcrowding on school buses.

In denying the petition, we explained that the passenger capacity for school buses is not based on the formula in Standard No. 222 for determining the test loading for seats. The formula in Standard No. 222 is not to be used to infer the number of seating positions on a school bus seat bench. It is not clear, given the wide range of ages and sizes of students carried on school buses (from pre-primary through high school football teams), how one could specify a meaningful requirement for passenger seating capacity that would be appropriate for all sizes of students. For example, a school bus seat that would easily accommodate three small children may only be able to accommodate two high school seniors.

We emphasize that Standard No. 222 is not intended to require or suggest that a school bus seat bench be occupied by the maximum number of persons determined under S4.1 for the purposes of calculating test forces. Instead, by imposing loads during testing that are representative of severe crash conditions, the Standard is intended to ensure that school bus seats and restraining barriers will perform safely and effectively. This is the safety margin discussed above. Standard No. 222 addresses the issue of potential overcrowding by including this safety margin.

The agency recognizes some state laws require that children participating in Head Start Programs must, because of their age, size or weight, use child restraint systems while being transported. The agency strongly recommends that Head Start Programs utilize MFSABs equipped either with seat belt systems or with lower anchors and tether for children (LATCH) systems to attach the children restraint systems used to transport these children. We are currently reviewing research test results to develop a proposal regarding the installation of seat belt systems and/or LATCH systems in school buses.

E. Relationship of This Rulemaking to Laws and Policies of Other Federal Agencies

1. U.S. Department of Health and Human Services—Head Start Bureau

If this proposal were made final, it would create a subcategory of school buses that would qualify as “allowable alternate vehicles” under DHHS” Head Start regulations, 45 CFR 1310.12, and thus could be used to transport Head Start Program participants.

2. Federal Transit Administration

If made final, this proposal would specify a vehicle type, the MFSAB, that would aid the efforts of Regional Transit Authorities (which must serve the general public) and Head Start both to meet State law and to satisfy the limitations on the availability of funding from the FTA. Since the MFSABs would not have the school bus flashing lights and stop arms, it is NHTSA's hope that transit authorities and other transportation providers could readily obtain FTA funding to buy MFSABs, provided that such vehicles are not used as school buses to provide home-to-school service. Further, as noted above, in many States, the flashing lights and stop arms are permitted only on “school buses” (as defined by State law).

3. National Transportation Safety Board

By making available a category of school bus that is potentially slightly cheaper than the conventional school bus, NHTSA believes that the final adoption of this proposal would aid child transportation providers in implementing the NTSB's recommendation that children be transported in buses that “meet the school bus structural standards or the equivalent set forth in 49 Code of Federal Regulations Part 571.”

F. Additional Issues

We also seek responses to the following questions.

1. In order to get a better estimate about the number of vehicles that would be affected by this rulemaking, NHTSA seeks the following information. What is the total number of MFSABs that would be sold each year if this proposed rule were made final? Would the adoption of this proposal lead to any change in the total sales of the existing smaller (6,804 kg (15,000 pound) and under) van-based school bus (with the flashing lights and stop arm)?

2. The agency proposes to limit this new subcategory of school bus to the smaller school buses that are generally used by day-care, Head Start and schools (private and public) for activity trips. NHTSA proposes the size limitation on the new school bus subcategory to reduce the possibility of misuse, i.e., the possibility that schools would purchase school buses without traffic control devices as a means of saving money on buses used to pick children up from and drop them off at home. Current van-based school buses have a gross vehicle weight rating (GVWR) between less than 4536 kg (10,000 pounds) to 6804 kg (15,000 pounds). Alternatively, the agency seeks comment on whether the proposed GVWR restriction should be adjusted to include larger school buses.

3. Should MFSAB manufacturers be required to place a prominent warning label near the front of the occupant compartment of their vehicles to warn the driver and passengers that the bus is not intended to be used to pick children up from and drop them off at places such as home and bus stops? If you believe a label should be used, what standardized wording should be specified to provide that warning? Should any size or other appearance requirements be specified? For example, should such a label be required to have the appearance of the air bag warning labels required by FMVSS 208, Occupant Crash Protection, 49 CFR 571.208?^[2] Where should the label be placed so that it is visible to both drivers and passengers?

4. It is the agency's belief that most States prohibit school buses from deploying their stop arms and operating their 4-way/8-way alternating flashing lights when stopped at railroad crossings. NHTSA seeks information on whether any States allow or require the use of the 4-way/8-way alternating flashing lights on school buses stopped at railroad grade crossings.

VI. Leadtime

We propose that, if made final, the rule take effect thirty days from the date the final rule appears in the Federal Register. Since the fact that Rabun has petitioned us for rulemaking has become publicly known, school bus manufacturers and their customers, child transportation providers, are anticipating this rulemaking. To meet the expected demand for multifunction school activity buses, we believe manufacturers should be permitted to manufacture, and certify them as soon as possible. Nothing in this proposed rule would require any motor vehicle manufacturer to manufacture the new subcategory of school buses proposed in this NPRM. We do not believe that manufacturing multifunction school activity buses would involve any new technology, or performance specifications that manufacturers cannot meet with existing design, tooling, or manufacturing capabilities. We believe that in order to manufacture a multifunction school activity bus, manufacturers need do nothing more to existing school buses than to simply not install the signal arms and 4-way/8-way alternating flashing lights. If enough interest from manufacturers is expressed, we may provide for optional early compliance with the final rule.

VII. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

We have considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action is also not considered to be significant under the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979).

For the following reasons, we believe that this proposal, if made final, would not increase vehicle manufacturers' costs to provide school buses for uses other than transportation of students between home and school. In order to manufacture a “multifunction school activity bus,” vehicle manufacturers need only manufacture a school bus and omit including the 4-way/8-way alternating flashing lights and stop arm.

For the following reasons, depending on how the new “multifunction school activity bus” is priced, NHTSA believes that organizations that at present purchase school buses for transportation purposes other than to and from home to school might realize a cost benefit as a result of this rulemaking.

As earlier discussed, this notice proposes a subcategory of school buses that would not be subject to the requirements for flashing 4-way/8-way alternating flashing lights or a stop arm. Estimates supplied by Blue Bird Body Company (a school bus manufacturer) indicate that the average cost of the 4-way/8-way alternating flashing lights is approximately $417 per school bus and the average cost of the stop-arm is approximately $560. Estimates supplied by Thomas Built Buses (another school bus manufacturer) indicate that the cost for the 4-way/8-way alternating flashing lights ranges from $175 for the least expensive 4-way system to $2,300 for the most expensive 8-way system and the cost for stop-arms ranges from $250 to $720. Based on those figures, the cost of adding stop-arms and alternating flashing lights ranges from $425 to $3020 per school bus.

The Annual Fact Book published by School Transportation News reports a strong increase in sales of “Type A” school buses (approximately 4,536 kg (10,000 pounds) GVWR); increasing from 6,389 in the 1995-1996 school year to 10,475 in the 1998-1999 school year. The agency notes that from 1990 through 1997, approximately 6,000 “Type A” school buses were sold each year. The agency believes that the increase in the sales of small school buses for years following 1997 is mostly due to purchases by organizations such as day care centers and Head Start, which provide child transportation. The agency does not have any data to indicate what percentages of the “Type A” school buses are sold to organizations that provide transportation other than between home and school. We note that since approximately 6,000 small “Type A” school buses were sold per year prior to 1997, a reasonable assumption would be that about 4,000 of these buses are sold to day care centers and others for transportation purposes other than to and from home to school.

Based on the cost figures discussed above and the conservative estimate of 4,000 Type A school buses sold each year, we estimate that the adoption of this proposal would save child transportation providers approximately $2.6 million dollars per year in the small “Type A” school bus market. However, this estimate is based on the assumption that school bus manufacturers would reduce the prices of the “multifunction school activity bus” by the amount of money saved as a result of not having to install 4-way/8-way alternating flashing lights or stop arms on those vehicles.

Because the economic impacts of this proposal are so minimal (i.e., the annual effect on the economy is less than $100 million), no further regulatory evaluation is necessary.

B. Executive Order 13132 (Federalism)

Executive Order 13132 requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, we may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or unless we consult with State and local governments, or unless we consult with State and local officials early in the process of developing the proposed regulation. We also may not issue a regulation with Federalism implications and that preempts State law unless we consult with State and local officials early in the process of developing the proposed regulation.

This proposed rule would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The reason is that this proposed rule, if made final, would apply to motor vehicle manufacturers, not to the States or local governments. This proposed rule, if made final, would assist child transportation providers by making available a school bus that would meet the traffic control laws of States and local governments. Thus, the requirements of Section 6 of the Executive Order do not apply to this proposed rule.

C. Executive Order 13045 (Economically Significant Rules Disproportionately Affecting Children)

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.

This proposed rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866 and does not involve decisions based on environmental, health or safety risks that disproportionately affect children. However, this proposed rule, if made final, would make a school bus vehicle type available for transportation purposes other than to and from home to school. Although we do not have any estimates of the extent or nature of the practice throughout the country, the agency is informed by the National Child Care Association that at present, in many cases, children provided transportation to and from child care facilities are transported in 15-passenger vans or other buses that do not meet the special requirements for school buses. If this proposed rule were made final, the chances that children would be transported in MFSABs, rather than in buses that are not school buses, would increase and the children's safety would thereby be enhanced.

D. Executive Order 12778 (Civil Justice Reform)

Pursuant to Executive Order 12778, “Civil Justice Reform,” we have considered whether this proposed rule would have any retroactive effect. We conclude that it would not have such an effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use.

49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

E. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.

The agency Administrator has considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and certifies that this proposal would not have a significant economic impact on a substantial number of small entities. We believe that if this proposed rule were made final, small businesses, small nonprofits and small local governments might benefit slightly because they would be able to purchase a school bus without traffic control devices on them, potentially saving $977 per school bus (using figures provided by Blue Bird Body Company), and saving small entity providers of transportation other than to and from home to school transportation approximately $3.9 million dollars per year. This cost savings assumes that school bus manufacturers (some of which are small businesses) would pass on to customers the cost savings resulting from not installing the traffic control devices on the school buses.

Accordingly, the agency believes that this proposal would, if made final, have a small beneficial cost effect on small motor vehicle manufacturers considered to be small business entities, on small businesses (that presently transport children in school buses with the 4-way/8-way alternating flashing lights and stop arms) providing transportation other than to and from home to school, or child care, small nonprofits, and small local governmental entities.

F. National Environmental Policy Act

We have analyzed this proposal for the purposes of the National Environmental Policy Act and determined that it would not have any significant impact on the quality of the human environment.

G. Paperwork Reduction Act

NHTSA has determined that, if made final, this proposed rule would not impose any “collection of information” burdens on the public, within the meaning of the Paperwork Reduction Act of 1995 (PRA). This rulemaking action would not impose any filing or recordkeeping requirements on any manufacturer or any other party.

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs us to use voluntary consensus standards in our regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

After conducting a search of available sources, we have determined that there are not any applicable voluntary consensus standards.

I. Unfunded Mandates Reform Act

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if we publish with the final rule an explanation why that alternative was not adopted.

This proposal would not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this proposal is not subject to the requirements of sections 202 and 205 of the UMRA.

J. Plain Language

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that is not clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make this rulemaking easier to understand?

If you have any responses to these questions, please include them in your comments on this NPRM.

K. Regulation Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Comments

How Do I Prepare and Submit Comments?

Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES.

You may also submit your comments to the docket electronically by logging onto the Dockets Management System website at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically.

How Can I Be Sure That my Comments Were Received?

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

How Do I Submit Confidential Business Information?

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.)

Will the Agency Consider Late Comments?

We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider it in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.

How Can I Read the Comments Submitted by Other People?

You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location.

You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

1. Go to the Docket Management System (DMS) Web page of the Department of Transportation (http://dms.dot.gov/​).

2. On that page, click on “search.”

3. On the next page (http://dms.dot.gov/​search/), type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234,” you would type “1234.” After typing the docket number, click on “search.”

4. On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. Although the comments are imaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable.

Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

List of Subjects in 49 CFR Part 571

• Imports
• Motor vehicle safety
• Motor vehicles
• Rubber and rubber products
• Tires

In consideration of the foregoing, it is proposed that the Federal Motor Vehicle Safety Standards (49 CFR part 571), be amended as set forth below.

PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS

1. The authority citation for part 571 continues to read as follows:

Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.

2. Section 571.3 is amended by adding a definition of “Multifunction school activity bus” to paragraph (b), in the appropriate alphabetical order, to read as follows:

§ 571.3

Definitions.

* * * * *

(b) * * *

Multifunction school activity bus (MFSAB) means a school bus with a gross vehicle weight rating of 6,804 kilograms (15,000 pounds) or less whose purposes do not include transporting students to and from home.

* * * * *

3. Section 571.108 is amended by revising the introductory sentence in S5.1.4 to read as follows:

§ 571.108

Standard No. 108, Lamps, reflective devices, and associated equipment.

* * * * *

5.1.4 Except for multifunction school activity buses, each school bus shall be equipped with a system of either:

* * * * *

4. Section 571.131 is amended by revising S3 to read as follows:

§ 571.131

Standard No. 131, School bus pedestrian safety devices.

* * * * *

S3. Application. This standard applies to school buses other than multifunction school activity buses.

* * * * *

Issued on: October 29, 2002.

Noble N. Bowie,

Acting Associate Administrator for Rulemaking.

Footnotes

1.  It is the agency's understanding that some States may prohibit school buses from deploying their stop arms and 4-way/8-way alternating flashing lights when stopped at railroad crossings. Later in this notice, the agency asks whether any State allows or requires use of these traffic control devices when the school bus is stopped at a railroad crossing.

2.  These labels have a heading area and a message area. The heading area is yellow with the word “warning” and the alert symbol (consisting of an exclamation mark inside a triangle) in black. The message area is white with black text.