Interpretation ID: MBWletter10702

Mr. Frank Multerer
President, MBW Inc.
250 Hartford Road
P.O. Box 440
Slinger, WI53086-0440

Dear Mr. Multerer:

This responds to your letter of September 18, 2002, concerning requirements for mortar mixers manufactured by MBW Inc., which are used by the masonry trade to process the binding material for the installation of brick, block, and stone at various construction sites. These mortar mixers may be wheel-mounted and towed to a jobsite, or alternatively they may be transported on a truck or trailer. You asked for our interpretation as to whether mortar mixers are subject to the National Highway Traffic Safety Administration (NHTSA) requirements. For the reasons that follow, the answer is no.

By way of background, Chapter 301 of Title 49, U.S. Code (U.S.C.) (Safety Act) authorizes the NHTSA to establish Federal motor vehicle safety standards (FMVSS) applicable to new motor vehicles and new items of motor vehicle equipment.The Safety Act defines a "motor vehicle" as:

a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.

49 U.S.C. 30102(a)(6).

If a vehicle is a motor vehicle under the above definition, then it must comply with all applicable FMVSS. However, if a vehicle is not a motor vehicle under this definition, then it need not comply with the agencys safety standards because such vehicle falls outside the agencys scope of authority.

Whether the agency will consider construction equipment, such as a mortar mixer, to be a motor vehicle depends upon its use. It is the agencys position that this statutory definition does not encompass mobile construction equipment, such as cranes and scrapers, which use the highway only to move between jobsites and which typically spend extended periods of time at a single jobsite. In such cases, the on-highway use of the vehicle is merely incidental and is not the primary purpose for which the vehicle was manufactured.

However, in those cases where certain types of construction equipment make more frequent use of the roadways, the agency has determined such equipment to be a motor vehicle under the Safety Act. For example, dump trucks have been determined to be motor vehicles because they regularly use the highways to travel between jobsites and stay on such jobsites for only a limited period of time, thereby rendering their on-highway use more than "incidental."

Your letter states that mortar mixers can be wheel-mounted so that they may be towed from jobsite to jobsite. Your letter goes on to state that the duration of mortar mixers use on jobsites is variable, ranging from roughly a week at small, residential jobs to many months at large, commercial projects.

Based upon the information and literature you have provided, we do not believe that your mortar mixers are "motor vehicles" as that term is defined by section 102(3) of the Act. This conclusion is based upon the assumption that your equipment generally spends extended periods of time at a single construction site and only uses the public roads infrequently to travel between jobsites. Accordingly, your mortar mixers would not be subject to the FMVSS.

However, that if the agency were to receive additional information indicating that the mortar mixers use the road more than on an incidental basis, then the agency would reassess this interpretation.

I hope this information is helpful. If you have any further questions regarding NHTSAs safety standards, please feel free to contact Eric Stas of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

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d.10/24/02