
[Federal Register: August 27, 2009 (Volume 74, Number 165)]
[Rules and Regulations]               
[Page 43640-43642]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au09-11]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 390

 
Regulatory Guidance Concerning Applicability of the Federal Motor 
Carrier Safety Regulations to Mobile Cranes Operated in Interstate 
Commerce

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of regulatory guidance.

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SUMMARY: The FMCSA announces a revision of the regulatory guidance 
concerning the applicability of the Federal Motor Carrier Safety 
Regulations (FMCSRs) to mobile cranes operated in interstate commerce. 
The regulatory guidance is presented in a question-and-answer format. 
The guidance is generally applicable to drivers, commercial motor 
vehicles (CMVs), and motor carrier operations subject to the FMCSRs. 
All prior interpretations and regulatory guidance concerning the 
applicability of the FMCSRs to operations of mobile cranes in 
interstate commerce issued in the Federal Register, as well as 
memoranda and letters, may no longer be relied upon as authoritative if 
they are inconsistent with the guidance published today. This guidance 
will provide the motor carrier industry and Federal, State, and local 
law enforcement officials with uniform information for assessing the 
applicability of the FMCSRs to the operations of mobile cranes.

DATES: Effective Date: This regulatory guidance is effective on August 
27, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and 
Roadside Operations Division, Office of Bus and Truck Standards and 
Operations, (202) 366-5370, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Ave., SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Legal Basis

    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 
Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to 
regulate drivers, motor carriers, and vehicle equipment. It requires 
the Secretary to prescribe regulations on CMV safety. The regulations 
shall prescribe minimum safety standards for CMVs. At a minimum, the 
regulations shall ensure that--(1) CMVs are maintained, equipped, 
loaded, and operated safely; (2) the responsibilities imposed on 
operators of CMV's do not impair their ability to operate the vehicles 
safely; (3) the physical condition of operators of CMV is adequate to 
enable them to operate the vehicles safely; and (4) the operation of 
CMVs does not have a deleterious effect on the physical condition of 
the operators. (49 U.S.C. 31136(a)) Section 211 of the 1984 Act also 
grants the Secretary broad power, in carrying out motor carrier safety 
statutes and regulations, to ``prescribe recordkeeping and reporting 
requirements'' and to ``perform other acts the Secretary considers 
appropriate.'' (49 U.S.C. 31133(a)(8) and (10))
    The Administrator of FMCSA has been delegated authority under 49 
CFR 1.73(g) to carry out the functions vested in the Secretary of 
Transportation by 49 U.S.C. chapter 311, subchapters I and III, 
relating to commercial motor vehicle programs and safety regulation.
    This document provides regulatory guidance to the public with 
respect to the applicability of the Federal Motor Carrier Safety 
Regulations (FMCSRs) to the operations of mobile cranes in interstate 
commerce.
    Members of the motor carrier industry and other interested parties 
may also access the guidance in this document through the FMCSA's 
Internet site at http://www.fmcsa.dot.gov.
    Specific questions addressing any of the interpretive material 
published in this document should be directed to the contact person 
listed earlier under FOR FURTHER INFORMATION CONTACT, or the FMCSA 
Division Office in each State.

Basis for the Notice

    The CMVs are defined in 49 CFR 390.5 as any self-propelled or towed 
motor vehicle used on a highway in interstate commerce to transport 
passengers or property when the vehicle--
    (1) Has a gross vehicle weight rating or gross combination weight 
rating, or gross vehicle weight or gross combination weight, of 4,536 
kg (10,001 pounds) or more, whichever is greater; or
    (2) Is designed or used to transport more than 8 passengers 
(including the driver) for compensation; or
    (3) Is designed or used to transport more than 15 passengers, 
including the driver, and is not used to transport passengers for 
compensation; or
    (4) Is used in transporting material found by the Secretary of 
Transportation to be hazardous under 49 U.S.C. 5103 and transported in 
a quantity requiring placarding under regulations prescribed by the 
Secretary under 49 CFR, subtitle B, chapter I, subchapter C.
    Paragraph (1) of the definition applies to the vehicles that are 
the subject of this notice.
    Question 9 under 49 CFR 390.5 of the existing regulatory guidance 
concerns the applicability of the FMCSRs to mobile cranes. The current 
guidance was published in the November 17, 1993 Federal Register (58 FR 
60734) and again in the April 4, 1997 Federal Register (62 FR 16370). 
It reads as follows:
    Question 9: Are mobile cranes operating in interstate commerce 
subject to the FMCSRs?
    Guidance: Yes, the definition of CMV encompasses mobile cranes.
    In a September 21, 2000, decision concerning a civil penalty 
enforcement case entitled In the Matter of Williams Equipment 
Corporation (Docket No. FHWA-1997-2433), the Acting Chief Safety 
Officer (CSO) of FMCSA found this regulatory guidance ``unpersuasive.'' 
The Acting CSO cited Christensen v. Harris County, 120 S.Ct. 1655, 1657 
(2000):


[[Page 43641]]


    Interpretations such as those in opinion letters--like 
interpretations contained in policy statements, agency manuals, and 
enforcement guidelines, all of which lack the force of law--do not 
warrant Chevron-style deference. They are `entitled to respect,' but 
only to the extent that they are persuasive [citation omitted], 
which is not the case here. [Emphasis supplied in Williams Equipment 
omitted.]

Although the Acting CSO assigned Williams Equipment for hearing, the 
matter was settled without a decision on its merits.
    On June 1, 2006, the Kansas Corporation Commission (KCC) issued an 
Order Addressing Jurisdiction to Midwest Crane and Rigging. The KCC 
found that Midwest Crane and Rigging is a ``motor carrier'' as defined 
in Kansas statutes and is subject to Kansas safety regulations. 
Therefore, the KCC had jurisdiction over Midwest Crane. In arriving at 
that conclusion the KCC first determined that the self-propelled cranes 
were motor vehicles under Kansas statute. Midwest Crane petitioned for 
reconsideration before the KCC, but, on July 17, 2006, the KCC issued 
an Order on Reconsideration that left in place its findings. Midwest 
Crane then appealed to the Kansas courts. On July 3, 2007, the District 
Court of Shawnee County, Kansas, Division Seven, vacated the KCC's 
Order Addressing Jurisdiction and remanded the case to the KCC to 
reopen the hearing to attempt to develop facts for the record. The 
District Court stated,

    No statute or regulation was provided to explain the rationale 
of classifying of self-propelled cranes as motor carriers. Instead 
the [Commission] relies upon a ``guidance answer'' posted on the 
[FMCSA] website, without providing a basis or qualification for such 
classification. The qualifications and rationales for the ``guidance 
answer'' are similarly unknown. (Midwest Crane and Rigging v. Kansas 
Corporation Commission, Case No. 06-C-1213, Memorandum Opinion and 
Entry of Judgment, July 3, 2007, at 11.)

    In its response to a June 5, 2007, Notice of Claim issued by the 
Kansas Division Administrator of the FMCSA, Midwest Crane continued to 
contend it was not a private motor carrier subject to FMCSA's 
jurisdiction. The firm reasoned that a mobile crane is a unified device 
that includes a transporting mechanism, that the crane and its 
transporting mechanism operate as in integrated units, and that there 
is no vehicle that exists separately from the crane.
    On August 1, 2008, the Field Administrator for the FMCSA Midwestern 
Service Center filed a Motion for Final Order. Midwest Crane answered 
the Motion on September 15, 2008, continuing to assert that a crane is 
a unified device and not a commercial motor vehicle. The matter was 
then referred to the FMCSA CSO who issued Decision FMCSA-2007-29184 on 
March 30, 2009.
    In the Decision, the CSO noted that the Agency had not responded to 
the former Acting CSO's concerns in 2000, so the matter of FMCSA's 
jurisdiction over operators of self-propelled cranes previously was not 
clear. For that reason, no civil penalty was imposed on Midwest Crane. 
However, the Agency noted that Federal case law provides a 
straightforward precedent for the regulatory guidance. In Harshman v. 
Well Service, Inc., (248 F.Supp. 953, 958 (D.C. Pa, 1964), aff'd per 
curiam, 355 F.2d 206 (3rd Cir. 1965), the United States District Court 
for the Western District of Pennsylvania found that firms operating 
cement pump trucks, which, like cranes, contained equipment permanently 
mounted upon specially constructed vehicles, to be private carriers of 
property. The Court noted that:

    It is fair to say that whenever those pump trucks moved in 
interstate commerce * * * the prime purpose * * * of such movement 
was to transport the pumping equipment * * * to and from a job site. 
Plaintiffs contend that there is no such `property' transported by 
the trucks, since, by their view, the pumping equipment has to be 
viewed as `unitized' in the truck itself. This view I regard as 
highly unrealistic. The pumping equipment has nothing to do with the 
mechanical function of the trucks. Had it not been permanently 
affixed to the truck chassis, it is scarcely imaginable that 
plaintiffs would contest its classification in the category of 
`property' for transportation. It was permanently affixed, however, 
thereby enhancing the comparative safety with which it could be 
transported on the public highways. It would be ironic in the 
extreme if I were to interpret this laudable safety measure as 
removing the defendant from the ambit of the Interstate Commerce 
Commission's power to regulate the safety of operations of carriers 
in interstate commerce. The pumping equipment * * * carried on the 
pump trucks did constitute `property', was owned by the defendant, 
and was transported in interstate commerce in furtherance of 
defendant's commercial enterprise.

    The CSO noted that similarly, with respect to Midwest Crane, the 
primary purpose of the movement of the vehicles in interstate commerce 
is to transport the crane apparatus, which was permanently affixed to 
the vehicles, to and from job sites to perform a commercial service. 
Enhancing the safety with which this equipment may be transported 
should not remove the motor carrier from the jurisdiction of the Agency 
charged with regulating the safety of CMVs. The mobile cranes of 
concern have gross vehicle weight ratings of from 56,000 pounds to 
129,000 pounds, far more than the minimum 26,001 pounds required to 
meet the definition of a CMV for purposes of the alcohol- and drug-
testing requirements, or the minimum 10,001 pounds required to meet the 
definition of a CMV with regard to other FMCSR requirements.
    The CSO stated that clearly, self-propelled cranes should not be 
removed from the Agency's jurisdiction merely because the cranes are 
permanently affixed to the vehicles on which they reside. To allow 
these vehicles to remain outside the reach of the safety arm of this 
Agency would put the motoring public at great risk. Accordingly, self-
propelled cranes are commercial motor vehicles and the motor carriers 
that operate them are private motor carriers subject to FMCSA's 
jurisdiction.
    For the reasons presented above, FMCSA revises the Question 9 of 
the Regulatory Guidance to Section 390.5 of the FMCSRs, published 
online at http://www.fmcsa.dot.gov/rules-regulations/administration/
fmcsr/fmcsrruletext.asp?chunkKey=0901633480023260.

Regulatory Guidance

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

Sections Interpreted

Section 390.5 Definitions

    Replace Question 9 to read as follows:
    Question 9: Are mobile cranes operating in interstate commerce 
considered CMVs, and are they subject to the FMCSRs?
    Guidance: The definition of CMV encompasses mobile cranes. Unlike 
the off-road motorized construction equipment discussed in Guidance 
Questions 7 and 8 above, mobile cranes are readily capable of traveling 
at highway speeds, over extended distances, and in the mixed traffic of 
public highways. Although the functions a crane performs are distinct 
from the transportation provided by a truck, the ready mobility of the 
crane depends on its permanent integration with a truck chassis. The 
truck chassis is equipped with wheels, tires, brakes, a suspension 
system, and other components. The mobile crane itself, like an empty 
CMV (see Guidance Question 6), is considered property.


[[Page 43642]]


    Issued on: August 19, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
[FR Doc. E9-20618 Filed 8-26-09; 8:45 am]
