Scott Molinari, Service Coordinator
North and South America
Terex-Demag GmbH & Co. KG
Dear Mr. Molinari:
This responds to your request for an interpretation concerning whether Terex-Demag products that your company imports into the United States are "motor vehicles". You asked four questions, which are addressed below.
You specifically asked that we address whether the Terex-Demag AC 80-2 All Terrain Mobile Crane is a "motor vehicle". You have enclosed brochures (with photographs and diagrams) describing the AC 80-2, as well as brochures for a number of other products.
By way of background information, the National Highway Traffic Safety Administration (NHTSA) administers the laws under which the Federal motor vehicle safety standards (FMVSSs) are promulgated.
You first question was whether the Terex-Demag AC 80-2 All Terrain Mobile Crane is considered a "motor vehicle". In response, we note that NHTSAs statute at 49 U.S.C. Section 30102(a)(6) defines the term "motor vehicle" as follows:
a vehicle driven or drawn by mechanical power manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.
We have issued a number of interpretations of "motor vehicle". We have stated that vehicles equipped with tracks, agricultural equipment, and other vehicles incapable of highway travel are not motor vehicles. We have also determined that certain vehicles designed and sold solely for off-road use (e.g. , airport runway vehicles and underground mining vehicles) are not motor vehicles, even if they may be operationally capable of highway travel. Finally, we have concluded that items of mobile construction equipment that use the highways only to move between job sites and that typically spend extended periods of time at a single site are not motor vehicles. However, we do consider vehicles that use the public roads on a necessary and recurring basis to be motor vehicles. If a vehicle is a "motor vehicle," it must comply with all applicable FMVSSs in order to be imported into the United States (49 U.S.C. 30112(a)).
Based on the brochure provided with your letter, we believe the Terex-Demag AC 80-2 All Terrain Mobile Crane is substantially similar to the mobile cranes that were the subject of our interpretation letters of March 11, 1999, to Mr. Chun Jo and of October 20, 2003, to Mr. Michael E. Ogle. As in the cases of the products at issue in these letters, for the Terex-Demag AC 80-2 All Terrain Mobile Crane, the use of the highway appears to be merely incidental and not the primary purpose for which it was manufactured. Therefore, we do not consider the Terex-Demag AC 80-2 to be a "motor vehicle".
I note that while you indicated in your letter that you were particularly concerned about the AC 80-2, you enclosed literature about other products. For the same reasons discussed in the previous paragraph, it is our opinion that the other cranes for which you provided individual brochures, specifically, the AC 500-2, AC 250-1, AC 140, AC 200-1, AC 55, AC 40 City, and AC 30 City are not considered to be "motor vehicles".
Your second question was whether, if the Terex-Demag products are not motor vehicles, they can legally operate on the highway or any other road without "DOT stamps". I note that you stated in your letter that you are having difficulty obtaining 20.5" tires that have the DOT stamp on them. I will therefore assume that you are asking whether your products may legally operate on the highway if they have tires that are not marked "DOT". The marking of "DOT" on a tire constitutes certification by the manufacturer that the tire meets applicable FMVSSs. If a vehicle is not a motor vehicle, our regulations would not apply to the vehicle, and it would not be required to have tires that met the FMVSSs. The vehicle could, however, be subject to state regulations.
Your third question concerned our October 20, 2003, letter to Mr. Ogle. You ask if there has been a change in the legal position taken in our interpretation letter to Mr. Ogle.
As you are aware, we noted to Mr. Ogle that our interpretations on mobile construction equipment are based on a court decision issued in 1978. We further stated:
Subsequent legal developments make the holding of that court decision open for reassessment. Moreover, some mobile construction equipment may be using the public roads with greater frequency than the equipment the court decided were not motor vehicles subject to our jurisdiction. At some point in the future, we may revisit the issue of whether certain mobile construction equipment should be considered motor vehicles. However, if we were to take such action, we would announce it publicly, and address such issues as what standards should apply to the vehicles and what effective date is appropriate.
As of this writing, we have not revisited the issue of whether mobile construction equipment such as that manufactured by Terex-Demag should be considered motor vehicles. Thus, the October 20, 2003 interpretation letter to Mr. Ogle remains unchanged.
Your fourth question is whether there are State laws that "could also warrant the need for DOT stamps on tires of non-motor vehicles". I will assume that in this question, you ask whether there are State laws that require non-motor vehicles to have tires that are certified as meeting NHTSA FMVSSs for tires. You would need to consult the State laws of each of the fifty states to determine the answer to this question.
The enclosed letter of August 16, 2004, to Kelly A. Freeman, Esq. provides additional guidance in determining when products used in construction may be "motor vehicles".
I hope this information is helpful. If you have any further questions, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992.
Stephen P. Wood
Acting Chief Counsel