February 22, 1993

ATTORNEY GENERAL OPINION NO. 93-23

The Honorable Sandy Praeger

State Senator, 2nd District

State Capitol, Room 128-S

Topeka, Kansas 66612

Re:	Automobiles and Other Vehicles--Uniform Act Regulating Traffic; Powers of State and Local Authorities--Regulations Governing Design and Operation of School Buses; Compliance with Federal Guidelines

Synopsis:	Highway safety program guideline 17 (23 C.F.R. 1204.4) dealing with pupil transportation safety and promulgated pursuant to the highway safety act of 1966, 23 U.S.C. sec. 401 et seq. does not impose a federal mandate; it is a guideline that contains recommendations. Thus state regulations do not violate federal law by not requiring that students on small school buses (GVWR less than 10,000 pounds) use seat belts. Cited herein: K.S.A. 8-2009; 23 U.S.C. sec. 401 et seq.; 23 C.F.R. 1204.4; 49 C.F.R. 571.208-210.

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Dear Senator Praeger:

You request our opinion concerning the use of seat belts on small school buses. Specifically, you inquire whether state regulations violate federal regulations concerning small school bus safety by not requiring that students use seat belts.

The federal "regulation" in question is the highway safety program guideline 17: pupil transportation safety (herein after guideline 17), 23 C.F.R. 12-4.4 (4-1-92 edition), which states "passengers in school buses . . . with a gross vehicle weight rating (GVWR) of 10,000 pounds or less should be required to wear occupant restraints (where provided) whenever the vehicle is in motion." At issue is whether this guideline imposes a federal mandate that has not been implemented. We must conclude it does not.

Small school buses (gross vehicle weight rating [GVWR] of 10,000 pounds or less) are equipped with seat belts because the federal government's construction standards require them. 49 C.F.R. 571.208-210 (10-1-91 edition). See K.A.R. 36-13-30; K.S.A. 8-2009. And while the Kansas department of transportation requires that the driver of a school bus wear the provided seat belt at all times while the bus is in motion, K.A.R. 36-13-32, there is no similar requirement for passengers. See also 7A Am.Jur.2d Automobiles and Highway Traffic sec. 14 (1980).

Guideline 17 contains recommendations to the states on various operational aspects of their school bus and pupil transportation safety programs proposed by the national highway traffic safety administration pursuant to section 402 of the highway safety act of 1966, 23 U.S.C. sec. 401 et seq. When instituted, the section 401 program, as commonly known, directed the U.S. secretary of transportation to promulgate uniform standards for state highway safety programs and required states to conform to the standards or risk losing federal funding. The section 402 program standards were, until 1976, mandatory requirements. The uniform standards for state highway safety programs included standard no. 17 dealing with school bus safety (now guideline 17) at issue. In 1976 congress changed the standards to guidelines for use by the states and instead of sanctions for noncompliance, offered federal funding incentives for complying with or exceeding the guidelines. See 55 Fed.Reg. 20471 (1990) and 56 Fed.Reg. 19270 (1991) for a thorough summary of the legislative and rule making history.

We thus opine that because no federal mandate requiring the use of seat belts by passengers of small buses exist, relevant state regulations do not violate any federal law.

Very truly yours,

ROBERT T. STEPHAN

Attorney General of Kansas

Guen Easley

Assistant Attorney General

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