43640 Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Rules and Regulations 

an environmental assessment will be 

prepared for the subsequent final rule. 

d. Unfunded Mandates Act . The final 

rule does not impose an enforceable 

duty among the private sector and, 

therefore, are not a Federal private 

sector mandate and are not subject to 

the requirements of Section 202 or 205 

of the Unfunded Mandates Reform Act 

(Pub. L. 104–4, 109 Stat. 48, 2 U.S.C. 

1501 et seq.). We have also found under 

Section 203 of the Act, that small 

governments will not be significantly or 

uniquely affected by this rulemaking. 

List of Subjects in 33 CFR Part 334 

Danger zones, Navigation (water), 

Restricted areas, Waterways. 

■ For the reasons set out in the 

preamble, the Corps amends 33 CFR 

part 334 as follows: 

PART 334—DANGER ZONE AND 

RESTRICTED AREA REGULATIONS 

■ 1. The authority citation for 33 CFR 

part 334 continues to read as follows: 

Authority: 40 Stat. 266 (33 U.S.C. 1) and 

40 Stat. 892 (33 U.S.C. 3). 

§ 334.786 [Removed] 

■ 2. Remove § 334.786. 

Dated: August 14, 2009. 

Michael G. Ensch, 

Chief, Operations, Directorate of Civil Works. 

[FR Doc. E9–20295 Filed 8–26–09; 8:45 am] 

BILLING CODE 3710–92–P 

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. 

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): 


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Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Rules and Regulations 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 selfpropelled 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 drugtesting 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, selfpropelled 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/rulesregulations/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. 


srobinson on DSKHWCL6B1PROD with RULES
43642 Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Rules and Regulations 

Issued on: August 19, 2009. 

Rose A. McMurray, 

Acting Deputy Administrator. 

[FR Doc. E9–20618 Filed 8–26–09; 8:45 am] 

BILLING CODE P 


srobinson on DSKHWCL6B1PROD with RULES