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Midwest Crane and Rigging, Inc. v. Federal Motor Carrier Safety Administration

April 27, 2010


Petition for Review of an Order from the Federal Motor Carrier Safety Administration (FMCA-2007-29184).

The opinion of the court was delivered by: Seymour, Circuit Judge.


Before KELLY, SEYMOUR and LUCERO, Circuit Judges.

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.


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 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).*fn1 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 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.


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.

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 ...

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