Interpretation ID: 06-006094drn

Colin Pewarchuk, Esq.

Vice President, General Counsel

New Flyer of America, Inc.

711 Kernaghan Avenue

Winnipeg, Manitoba R2C 3T4

CANADA

Dear Mr. Pewarchuk:

This responds to your request for an interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 101, Controls, telltales and indicators. You advise us that your company manufactures and sells transit buses with a gross vehicle weight rating (GVWR) of more than 10,000 pounds (4,536 kg). Based on the information you provided to the agency and the analysis below, I can confirm your understanding framed in your September 19, 2006 letter that as a result of the August 17, 2005 final rule amending FMVSS No. 101 (70 FR 48295), the standard does not regulate, restrict or otherwise affect the use of foot-operated controls.

In your letter, you advise us that the majority of transit buses manufactured by your company for sale in the United States include foot-operated controls, including the turn signal control and the high beam control. You stated your belief that most other manufacturers in the transit bus industry, and perhaps manufacturers in the over-the-highway bus or coach industry also manufacture their products with similar foot-operated controls.

FMVSS No. 101 specifies that each covered vehicle fitted with a control listed in the standard must meet the requirements of [the] standard for the location, identification, color, and illumination of that control . . . . See S5. In the final rule of August 17, 2005, control was defined at S4 as:

the hand-operated part of a device that enables the driver to change the state or functioning of the vehicle or a vehicle subsystem.[1]

Since the standards revised definition of control is limited to hand-operated controls, foot-operated controls are not regulated by FMVSS No. 101.

We note that the National Highway Traffic Safety Administration explained its intent not to continue to regulate foot-operated controls in FMVSS No. 101 in the preamble to the August 17, 2005 final rule. See 70 FR at page 48298. The standards requirements for foot-operated controls had been very limited. Specifically, FMVSS No. 101 had required that certain foot-operated controls (service brake, accelerator, clutch, high beam, windshield wiper, and windshield washer) must be operable by the driver when restrained by his or her seat belt. In the final rule preamble, we explained that we had proposed and, in the final rule were deciding, to limit the term control (and thus FMVSS No. 101 itself) to hand-operated controls because we were unaware of any current vehicles whose high beam, or windshield washer or wiper controls were foot-operated and because we saw no need, as a practical matter, to state as a regulation that service brakes, accelerators, and clutches be located so as to be operable by the driver.

Your letter has made us aware of the continued use in transit buses of foot-operated controls, contrary to the assumption expressed in the recent rulemaking. We note, however, that our rationale for not seeing a need, as a practical matter, to include a requirement that service brakes, accelerators, and clutches be located so as to be operable by the driver also appears applicable to other foot-operated controls needed during driving. That is, we believe it is reasonable to assume that manufacturers that use foot-operated controls necessary for the driving task will locate them such that they are operable by the driver when wearing their seat belt.

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,

Anthony M. Cooke

Chief Counsel

ref:101

d.3/28/07