FILED

United States Court of Appeals

Tenth Circuit

April 27, 2010

Elisabeth A. Shumaker

Clerk of Court PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MIDWEST CRANE AND RIGGING, INC.,

Petitioner,

v.

FEDERAL MOTOR CARRIER SAFETY

ADMINISTRATION,

Respondent.

No. 09-9520

Petition for Review of an Order from the

Federal Motor Carrier Safety Administration

(FMCA-2007-29184)

Kurt S. Brack of Holbrook & Osborn, P.A., Overland Park, Kansas, for Petitioner.

Sushma Soni, Attorney, Department of Justice, Washington, D.C. (Tony West,

Assistant Attorney General, and Thomas M. Bondy, Attorney, Department of

Justice, Washington, D.C.; Robert S. Rivkin, General Counsel, Paul M. Geier,

Assistant General Counsel for Litigation, and Paul Samuel Smith, Senior Trial

Attorney, Department of Transportation, Washington, D.C.; and David K. Tochen,

Acting Chief Counsel, Federal Motor Carrier Safety Administration, Washington,

D.C., with her on the brief), for Respondent.

Before KELLY, SEYMOUR and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

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Midwest Crane and Rigging, Inc. (“Midwest”) petitions for review of the

Federal Motor Carrier Safety Administration (“FMCSA”) determination that it is

a “commercial motor carrier” subject to the agency’s jurisdiction. We deny the

Petition for Review.

I.

 The Interstate Commerce Commission (“ICC”) was initially the regulating

body for motor carriers. See Motor Carrier Act, Pub. L. No. 74-255, 49 Stat. 543

(1935). In 1966, Congress transferred this regulatory authority to the Department

of Transportation (“DOT”), see Department of Transportation Act, 89 Pub. L. No.

670, 80 Stat. 931, 939-40 (1966), which delegated it to the Federal Highway

Administration. See 49 C.F.R. § 1.4(c)(7) (1968); Darrell Andrews Trucking, Inc.

v. Federal Motor Carrier Safety Admin., 296 F.3d 1120, 1123 n.1 (D.C. Cir.

2002). 

In 1984, in order to ensure public safety on the nation’s highways,

Congress enacted the Motor Carrier Safety Act (“MCSA”). 49 U.S.C. § 31501 et

seq. The MCSA, inter alia, enables the Secretary of Transportation to “prescribe

requirements for . . . safety . . . and standards of equipment of, a motor private

carrier, when needed to promote safety of operation.” 49 U.S.C. § 31502(b); see

also 49 U.S.C. § 31136(a)(1) (directing DOT to promulgate regulations to “ensure

that . . . commercial motor vehicles are maintained, equipped, loaded, and

operated safely.”). Pursuant to this authority, the DOT promulgated regulations

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The Act adds that “increased testing” is the “most effective

deterrent” to “use of illegal drugs.” [Pub L. 102-143] § 2(5). It

requires the Secretary of Transportation to promulgate regulations

requiring “testing of operators of commercial motor vehicles for the

use of a controlled substance.” 49 U.S.C. § 31306(b)(1)(A) (1994

ed., Supp. III). It mandates suspension of those operators who have

driven a commercial motor vehicle while under the influence of

drugs. 49 U.S.C. § 31310(b)(1)(A) (requiring suspension of at least

one year for a first offense); § 31310(c)(2) (requiring suspension of

at least 10 years for a second offense). And DOT’s implementing

regulations set forth sanctions applicable to those who test positive

for illegal drugs. 49 CFR § 382.605 (1999).

E. Associated Coal Corp., 531 U.S. at 64.

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that require commercial vehicles to be inspected at least once annually. See 49

C.F.R. § 396.17, revised by 73 Fed. Reg. 76794 (Dec. 17, 2008).

In 1991, Congress enacted the Omnibus Transportation Employee Testing

Act. 49 U.S.C. § 5331. “The Testing Act embodies a congressional finding that

‘the greatest efforts must be expended to eliminate the . . . use of illegal drugs,

whether on or off duty, by those individuals who are involved in [certain

safety-sensitive positions, including] the operation of . . . trucks.’ Pub.L. 102-143,

§ 2(3), 105 Stat. 953.” E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57,

63-64 (2000) (ellipses and brackets in original).1

 Pursuant to the authority of this

Act, DOT issued regulations requiring pre-employment testing for alcohol and

controlled substances. See 49 C.F.R. § 391.81 et seq.; id. § 382.101 et seq.; id. §

392.1 et seq.; see also Department of Transportation Drug Testing Regulations for

the Motor Carrier Industry, Procedures for Transportation Workplace Drug

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Testing Programs, 53 Fed. Reg. § 47002, et seq. (Nov. 21, 1988). 

In 1995, Congress abolished the ICC and transferred most of its

responsibilities to the Secretary of Transportation at DOT. See ICC Termination

Act of 1995, § 101, 109 Stat 803. With the Motor Carrier Safety Improvement

Act of 1999, 113 Stat. 1748, Congress transferred responsibility for motor carrier

safety within DOT to the newly created FMCSA. See 49 U.S.C. § 113(f); Dep’t

of Transp. v. Pub. Citizen, 541 U.S. 752, 759 n.1 (2004). 

Among its statutory mandates, the FMCSA is responsible for prescribing

federal standards for safety inspections of commercial motor vehicles, see 49

U.S.C § 31142, and assigning safety fitness ratings to owners and operators of

commercial motor vehicles. 49 U.S.C. § 31144(b); 49 C.F.R. §§ 1.73(h), 385.9. 

Towards that end, the FMCSA inspectors perform periodic on-site compliance

reviews, in which they assess points for regulatory violations and preventable

accidents. See 49 C.F.R. §§ 385.5, 385.7.

II. 

The present petition for review stems from a dispute arising out of an

FMCSA compliance review in response to a complaint. Petitioner Midwest, a

Kansas corporation, leases construction cranes to contractors. At least sixteen of

its cranes are self-propelled by the truck chassis on which it is permanently

mounted. These self-propelled cranes travel in interstate commerce from the

storage yard to job sites, where they are used to hoist materials.

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Following the compliance review on April 19, 2007, the FMCSA issued a

notice of claim charging Midwest with violations of four Federal Motor Carrier

Safety Regulations (“FMCSR”) involving Midwest’s self-propelled cranes,

including failure to comply with regulations governing vehicle safety inspections

and drug and alcohol testing for drivers. The FMCSA proposed a $7,470 civil

penalty for the violations.

Midwest denied any violation of the regulations based on its theory that it

is not a “private motor carrier” pursuant to 49 U.S.C. § 31502(b) and therefore its

self-propelled cranes are not subject to FMCSA jurisdiction. See FMCSA Order

at 2. Under the FMCSR, 49 C.F.R. 390.5, a “private motor carrier” is a “person

who provides transportation of property or passengers, by commercial motor

vehicle, and is not a for-hire motor carrier.” And as relevant here, a “commercial

motor vehicle” is “a self-propelled or towed vehicle used on the highways in

interstate commerce to transport passengers or property, if the vehicle [] has a

gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds,

whichever is greater[.]” 49 U.S.C. § 31132(1)(A). Midwest argued that its cranes

“do not transport passengers or property” because each crane “is a unified device

that includes a transporting mechanism, not two separate devices, and that the

crane and its transporting mechanism operate as an integrated unit.” FMCSA

Order at 2. 

The FMCSA rejected Midwest’s assertion, reasoning that 

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 We have jurisdiction over this petition under 49 U.S.C. § 521(b)(9) and/or

the Hobbs Act, 28 U.S.C. § 2342(3)(A). See Br. for Resp. at 2, 16; see generally

MST Express v. Dep’t of Transp., 108 F.3d 401, 404-05 (D.C. Cir. 1997)

(explaining applicability of judicial review provisions).

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in this matter, the prime 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 [Midwest] from the

jurisdiction of the Agency charged with regulating the safety of

commercial motor vehicles. The units at issue in this proceeding

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 commercial motor vehicle with regard to

alcohol- and drug-testing requirements, and the minimum 10,001

pounds required to meet the definition of a commercial motor vehicle

with regard to other FMCSR requirements. 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 [Midwest] is a private motor carrier subject to

FMCSA’s jurisdiction.

FMCSA Order at 8-9. Because the FMCSA also determined that the question

whether self-propelled cranes are subject to the FMCSR was unanswered at the

time Midwest’s alleged violations occurred, it did not impose any civil penalty on

Midwest for violating agency regulations. 

III.

Midwest petitions for review.2

 The outcome of this case turns on the

meaning of the word “property” in 49 U.S.C. § 31132(1)(A) and the FMCSR. If,

as Midwest argues, the crane apparatus is not “property” within the meaning of

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the statute and the regulations, its conduct may be beyond the purview of the

FMCSA. Alternatively, if, despite Midwest’s affixation of the crane apparatus to

the vehicle, the crane apparatus still constitutes “property,” then the disputed

vehicles at issue here qualify as “commercial motor vehicles,” and Midwest is a

private motor carrier subject to the jurisdiction of the FMCSA.

Notably, although Congress routinely references the term “property” in

regulating the motor carrier industry, it has never defined the term. In cases of

Congressional silence such as this, the authorized agency – in this case the

FMCSA – possesses broad discretion in administering the law. See Valley Camp

of Utah, Inc. v. Babbitt, 24 F.3d 1263, 1267 (10th Cir. 1994) (citing Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). We

will defer to the agency’s interpretation of an ambiguous statute “if it is

reasonable in light of the text, the structure, and the underlying purpose.” Used

Equipment Sales, Inc. v. Dep’t of Transp., 54 F.3d 862, 865 (D.C. Cir. 1995). 

Moreover, we accord “substantial deference to an agency’s interpretation of its

own regulations.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)

(citations omitted). But this principle of deference is not absolute. We need not

accept an agency’s interpretation if it is “unreasonable, plainly erroneous, or

inconsistent with the regulation’s plain meaning.” Lewis v. Babbitt, 998 F.2d

880, 882 (10th Cir. 1993) (citation and internal quotation marks omitted). 

Midwest has the burden to show that the FMCSA’s action was “arbitrary,

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capricious, an abuse of discretion, or otherwise not in accordance with law.” See

5 U.S.C. § 706(2)(A); 49 U.S.C. § 521(b)(9); see also San Luis Obispo Mothers

for Peace v. United States NRC, 789 F.2d 26, 38 (D.C. Cir. 1986) (en banc) (“the

party challenging an agency’s action as arbitrary and capricious bears the burden

of proof.” (citation omitted)).

Turning to the FMCSA’s interpretation of the meaning of “property,” we

note that it is consistent with the court’s analysis in Harshman v. Well Serv., lnc.,

248 F. Supp. 953 (W. D. Pa. 1964), aff’d per curiam, 355 F.2d 206 (3d Cir. 1965)

(affirming “for the reasons so well stated in the opinion of [the district court].”). 

The plaintiff in Harshman argued that its cement-pumping equipment, which was

permanently mounted on a truck and transported in interstate commerce to job

sites, was not “property” within the meaning of the statute. Midwest’s argument

here is essentially the same: its self-propelled cranes, which are permanently

mounted on truck chassis that transport them in interstate commerce to job sites

and were operated from the truck cab, are not “property.” In rejecting a similar

argument, the court in Harshman reasoned: 

It is fair to say that whenever those pump trucks moved in interstate

commerce, as they often did, the prime purpose . . . of such

movement was to transport the pumping equipment . . . to and from a

job site. Plaintiffs contend that there was 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 had

nothing to do with the mechanical function of the trucks. Had it not

been permanently affixed to the truck chassis, it is scarcely

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 We do not consider Midwest’s and the FMCSA’s alternative arguments,

which were not advanced by the parties below nor addressed in the agency’s final

order. See Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991) (“The

general rule is that an appellate court will not consider an issue raised for the first

(continued...)

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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.

Harshman, 248 F. Supp. at 958.

The FMCSA’s determination that the analysis in Harshman is analogous to

the situation here is not an unreasonable one. The record indicates that Midwest’s

self-propelled cranes are designed to operate, and do operate, in highway traffic

to transport property in the performance of a commercial function. Their size and

weight pose a significant risk to the safety of highway travelers. The FMCSA’s

exercise of jurisdiction over Midwest is consistent with the regulatory language,

as well as with Congress’s directive to make safety the agency’s “highest

priority.” 49 U.S.C. § 113(b). Affording deference to the FMCSA’s

interpretation of Title 49 and of its own regulations, see Valley Camp of Utah,

Inc., 24 F.3d at 1267, we are not persuaded that the FMSCA’s decision was

arbitrary or capricious.3

 We therefore reject Midwest’s argument that its crane

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(...continued)

time on appeal.”).

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apparatuses do not constitute “property” within the meaning of the relevant

statute and regulation, as well as its assertion that the FMCSA acted arbitrarily

and capriciously in asserting jurisdiction over Midwest. 

Accordingly, we DENY the Petition for Review.

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