Interpretation ID: 21885r.ztv
LeAnn M. Johnson-Koch, Esq.
Piper Marbury Rudnick & Wolfe LLP
1200 Nineteenth Street, NW
Washington, DC 20036-2412
Dear Ms. Johnson-Koch:
This is in reply to your letter of July 13, 2000, to Taylor Vinson of this Office, on behalf of your client, Harvest Drivemaster USA, requesting our opinion that Samsung Concrete Pumping Cranes, Models PX362 and PX321, are not "motor vehicles" under the laws that we administer. These vehicles are trucks which have cranes mounted to the bed behind the cab.
As Mr. Vinson explained to your associate, Ms. Dykes, we have no record of receiving either your original letter of May 22, 2000, or its followup of June 12, 2000, in spite of your delivery confirmation slips. I apologize for any inconvenience our delay may have caused you.
We have learned that the United States Attorneys in Baltimore, Denver, Dallas, and Atlanta are conducting criminal investigations into the possibly illegal importation into the United States of concrete pump trucks manufactured in Korea by Samsung and Daewoo, some of which were imported at Baltimore. The United States Attorney in Baltimore has identified the importing companies as "Harvest" and "Drivemaster" among others. Samsung and Daewoo have not manufactured these vehicles for sale in the United States or imported and sold them here. They have been imported by entities other than the manufacturers or their representatives. We assume that the concrete pump cranes about which you inquire are a subject of this investigation, and we understand the importance of our interpretation, both to your clients and to the investigation.
As you are aware, a motor vehicle under our principal vehicle safety statute is defined as a vehicle that has been "manufactured primarily for use on public streets, roads, and highways." (49 U.S.C. 30102(a)(6)). Further, if a vehicle is a "motor vehicle," it must comply with all applicable Federal motor vehicle safety standards in order to be imported into the United States (49 U.S.C. 30112(a)). You believe that the Samsung Concrete Pumping Cranes are not "motor vehicles," because they are mobile construction equipment. You have cited Koehring Co. v. Adams, 452 F. Supp. 635 (E.D. Wisc. 1978), affirmed 605 F. 2d 280 (7th Cir. 1979) and agency interpretations in support of your belief.
We have reviewed Koehring. The plaintiffs were seven manufacturers who sought a declaratory judgment that the mobile cranes, mobile excavators, and mobile drill wells which they manufactured were not "motor vehicles" subject to 15 U.S.C. 1381 et seq., the National Traffic and Motor Vehicle Safety Act (recodified as 49 U.S.C. Chapter 301 in 1994) (1). The manufacturers had admitted that their vehicles used the public roads, and the parties stipulated that the typical item of the construction equipment at issue traveled an estimated average of 2,100 to 2,200 miles per year under its own power on the public roads, and spent a majority of its operation time off the public roads.
The court granted the plaintiffs' motion for summary judgment, and declared "that mobile construction equipment which is designed to perform work on a construction site and which normally uses the public streets, roads or ways only for travel between job sites, is not a vehicle which has been manufactured primarily for use on public streets, roads and highways" (op. cit. at 638). Although conceding that the equipment possessed design features required for on-road travel such as rubber tires, the capability of traveling at highway speeds and conforming to government regulations for vehicle width, the court stated that the record before it was clear that operation on the public roads was "decidedly" an incidental activity and that "the greater percentage of these vehicles' operation is on off-highway construction sites rather than on public roads." On a limited interpretation of the term "primarily" in the definition of " motor vehicle," the court held that the mobile cranes, excavators and drill wells at issue were not "motor vehicles." The 7th Circuit affirmed the district court's decision. Although we did not agree with the courts, we have not undertaken to reconsider Koehring in our interpretations involving construction equipment.
We continue to be concerned with the Koehing decision, particularly because we have received information indicating that concrete pump cranes manufactured by Samsung and others are using the public roads far more frequently than they appear to have done at the time of the Koehring decision. We are not bound by Koehring because it was not based on an analysis consistent with Chevron U.S.A., Inc. v. Natural Resources Defense Committee, Inc., 467 U.S. 837 (1984). However, the importers of Samsung concrete pump cranes may have imported their vehicles pursuant to Koehring's classification of mobile cranes as "mobile construction equipment," in accordance with that court decision. Since our interpretations are in accord with that decision and we have not undertaken to distinguish it, we do not view the importation and use of the Samsung concrete pump cranes as a violation of 49 U.S.C. 30112(a).
Sincerely,
John Womack
Acting Chief Counsel
ref:571
d.3/21/01
1. The citation of "15 U.S.C. Sec. 1391(3) (1999)" on page 2 of your letter of May 22, 2000, should be "49 U.S.C. 30102(a)(6) (1999)" as 15 U.S.C. 1381 et seq. was revoked in 1994.