dissenting:
Respectfully, I dissent. The majority opinion incorrectly analyzes the facts when (1) it finds that S & H’s work in Alabama was not an essential element of an unitary interstate transaction and (2) it finds that S & H localized its business in Alabama notwithstanding the evidence clearly showing *1515that S & H was there for the sole purpose of the contract in question.
The majority unsuccessfully attempts to distinguish a case whose facts are very similar to those in this case. In York Mfg. Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963 (1918), York sued a Texas purchaser who refused to pay York’s bill, and the Court recited the following:
At the trial it was shown without dispute that the contract covered an ice plant guaranteed to produce three tons of ice a day, consisting of gas compression pumps, a compressor, ammonia condensers, freezing tank and cans, evaporating coils, a brine agitator and other machinery and accessories, including apparatus for utilizing exhaust steam for making distilled water for filling the ice cans. These parts of machinery, it was provided, were to be shipped from Pennsylvania to the point of delivery in Texas and were there to be erected and connected. This work, it was stipulated, was to be done under the supervision of an engineer to be sent by the York Manufacturing Company for whose services a fixed per diem charge of $6 was to be paid by the purchasers and who should have the assistance of mechanics furnished by the purchasers, the supervision to include not only the erection but the submitting of the machinery to a practical test in operation before the obligation to finally receive it would arise.
* ■¥ * * * *
Was the particular provision of the contract for the service of an engineer to assemble and erect the machinery in question at the point of destination and to practically test its efficiency before complete delivery relevant and appropriate to the interstate sale of the machinery? When the controversy is thus brought in last analysis to this issue there would seem to be no room for any but an affirmative answer. Generically this must be unless it can be said that an agreement to direct the assembling and supervision of machinery whose intrinsic value largely depends upon its being united and made operative as a whole is not appropriate to its sale. The consequence of such a ruling if made in this ease would be particularly emphasized by a consideration of the functions of the machinery composing the plant which was sold, of its complexity, of the necessity of its aggregation and unison with mechanical skill and precision in order that the result of the contract of sale— the ice plant purchased — might come into existence.
247 U.S. at 22, 25, 38 S.Ct. at 431-32.
In referring to the legal standard in this type of case, our predecessor court in Div-ersacon (discussed infra) stated the legal test as follows: “Essentially, the [Supreme] Court included in a federal definition of interstate commerce any activity of an intrastate nature which was an integral part of an overall interstate pattern or transaction.” 629 F.2d 1030, 1033 (5th Cir.1980) (citations omitted).
FACTS
In the present ease, Bucyrus-Erie (Bucy-rus), a foreign corporation, contracted with Taft to sell it an unassembled dragline, which because of its huge size, could not be shipped assembled. Bucyrus was not in the business of assembling such large items. The sales contract expressly provided that Bucyrus would furnish A.J. Taft Coal Company (Taft) with a resident engineer to oversee the entire 275-day assembly process. Additionally, Bucyrus agreed to provide follow-up service of six visits at three-month intervals after completion of assembly to assure the machine was functioning properly. Finally, the contract between S & H Contractors (S & H) and Taft expressly incorporates provisions in the Bu-cyrus/Taft contract which pertain to assembly. The circumstances surrounding the formation of the sales and subsequent assembly contracts demonstrate that Taft relied heavily on Bucyrus in selecting a suitable assembly contractor. Taft requested and received from Bucyrus its list of assembly contractors who were capable of assembling this type of equipment. S & H was one of the contractors on the list and one which Bucyrus specifically recom*1516mended to Taft. Bucyrus and S & H had worked together on assembly projects in the past. Several former Bucyrus employees were employed by S & H which, according to the deposition testimony, satisfied Taft that S & H had the necessary expertise to. assemble this model dragline.
The record shows that assembly of this machine involved an extremely complex operation. The contract provision to provide a supervising engineer indicates that Taft and Bucyrus considered it sufficiently complex to require Bucyrus’ expertise. The deposition testimony reveals that the Bucy-rus engineer actively participated in the day-to-day assembly process. In fact, it appears that Bucyrus retained some control over the process. David Elmore, a general superintendent with Taft and Taft’s assembly supervisor, testified that near the end of the assembly process when S & H wished to walk the dragline from the assembly pad to the mining pit, the Bucyrus engineer “wouldn’t sign off the machine because BE was still liable for the machine until the electrical work was completed.” The dragline component delivery schedule also indicates that assembly of the dragline was contemplated by and keyed to the sales contract. Bucyrus did not deliver all the parts of the machine at the same time. When S & H started work on January 15, 1985,- many parts had not been delivered and parts continued to arrive through December 1985. Bucyrus delivered parts as they became necessary in the assembly process.
The shear size of the dragline is also indicative of the complexity of the assembly procedure. The 1300-W is immense; the boom is 285 feet long and the bucket has a forty-five yard capacity. The completed dragline weighs over 650 tons. Finally, the 1300-W erection procedure— which was partially incorporated into the assembly contract — shows that assembly of the 1300-W required significant specialized expertise. Bucyrus notes in the assembly procedure that assembly takes approximately 62,000 man-hours to complete and requires a variety of skilled laborers including electricians, pipefitters and welders.
The majority’s strategy is to show that the assembly was not part of a unitary interstate transaction by contending that assembly was not essential to the sale of a dragline. In support of its argument, the majority relies on two irrelevant arguments. First, the majority relies on the fact that Taft did not begin its search for a contractor to assemble the dragline until after it had signed the sales contract with Bucyrus. However, the majority’s reliance on the timing of the two contracts as demonstrating that assembly is not part of a unitary transaction is fundamentally flawed as any negotiations with S & H would have been for naught if S & H did not have the expertise to assemble the dragline which Taft ultimately selected. Second, the majority argues that assembly was not essential to the sales contract because Taft could have assembled the drag-line itself. This conclusion is contrary to the available deposition testimony. A.J. Taft, Jr. testified that Taft did not have sufficient manpower available to assemble the dragline. He also stated that certain aspects of the assembly work on the 1300-W were far more involved than that on the much smaller dragline which Taft had previously assembled. Additionally he noted that Taft had not assembled any dragline since 1979.
DISCUSSION
Application of Alabama’s forum closing law in this case creates an impermissible burden on interstate commerce. The majority discusses a number of decisions in this area and concludes that two factors “consistently guide the courts’ decisions.” One is the interrelationship between the intrastate and interstate portions of the transactions. Another is the permanence of the relationship between the foreign corporation and the forum state.
A. The Reach of Interstate Commerce in Assembly Contracts.
The Supreme Court in three cases has considered the importance of the complexity of assembly in determining whether the *1517assembly is an integral indispensable part of the sales contract. The York Mfg. Co. v. Colley case has already been discussed in part.1
In York, defendant Colley argued that the supervision of the assembly portion of the contract was separate and distinct from the delivery portion, and concluded, therefore, that since supervision was a wholly intrastate transaction, the plaintiffs suit was due to be dismissed for plaintiff failure to qualify to do business in the state. The Texas court agreed, but the Supreme Court reversed. The Court concluded that assembly and testing would be “relevant and appropriate” to the interstate sale of such complex machinery, “unless it can be said that an agreement to direct the assembling and supervision of machinery whose intrinsic value depends upon its being united and made operative as a whole is not appropriate to its sale.” Id. 38 S.Ct. at 432. Throughout the opinion, the Court emphasized the complexity of the endeavor and the fact that the purchaser bought an ice machine, not the parts of an ice machine.2 The terms of the supervising engineer provision in the Bucyrus/Taft contract evidences a closer relationship between assembly and sale than did the arrangement in York.3 The engineer from York Mfg. worked on a per diem basis which was paid by the purchaser, whereas here, the Bucy-rus engineer’s services were provided by Bucyrus as part of the sales contract.
In Browning v. City of Waycross, 233 U.S. 16, 34 S.Ct. 578, 579-80, 58 L.Ed. 828 (1914), the Court concluded that installation of lightning rods, sold in interstate commerce and installed locally by employees of the seller, was not in interstate commerce. The installation was a wholly intrastate affair and “bore no relevant or appropriate relation to interstate commerce.” York, 38 S.Ct. at 431. In York, the Court distinguished Waycross, concluding that it “was not controlling as to a case where the service to be done in a state as the result of an interstate commerce sale was essentially connected with the subject-matter of the sale, that is, might be made to appropriately inhere in the duty of performance.” Id. (emphasis added).
Finally, in General Railway Signal Co. v. Virginia, 246 U.S. 500, 38 S.Ct. 360, 62 L.Ed. 854 (1918), the State of Virginia contracted with General Railway to purchase and install automatic railway crossing signals at various locations in the state. General Railway manufactures many of the components required for installation; however, “to construct these signals as required by the contract it was necessary to employ in this state labor, skilled and unskilled, to dig ditches in which conduits for the wires are placed, to construct concrete foundations, and to paint completed structures.” Id. The Court concluded that “the recited facts clearly show local business separate and distinct from interstate commerce.” Id. The Court commented that this case was very similar to the lightning *1518rods case. In York, the Court distinguished this case stating, “the work required to be done by the contract over and above its inherent and intrinsic relation to the subject-matter of the interstate commerce contract involved the performance of duties over which the state had a right to exercise control because of their inherent intrastate character.” 38 S.Ct. at 432.
These Supreme Court cases indicate that the fundamental question in construction or installation type cases is whether it is appropriate and essential for the seller/manufacturer to continue its involvement after delivery. It satisfies this standard if the subject matter of the sale is sufficiently complex, or if the seller’s expertise is necessary to bring the item purchased into useful existence following delivery. With this synthesis in mind, assembly of the dragline was clearly essential to its sale and therefore was part of a unitary interstate transaction. Given the complexity of the assembly process in this case, the majority illogically concludes that assembly was an afterthought.
The majority attempts unsuccessfully to distinguish York from the instant case. The majority notes that “the [ice] machine was so complex that the [manufacturer/seller’s] engineer’s services were required to assemble the machine properly.” Elsewhere the majority notes that “other companies, including an Alabama corporation and Taft itself, could have assembled the dragline.” Supra pp. 1512, 1513. (Without any support from the evidence). These comments evidence the majority’s misunderstanding of York. In that case, it is clear that the purchaser supplied the mechanics to assemble the ice machine. 34 S.Ct. at 431. The purchaser simply acted as both the general contractor and labor pool. However, the engineer from York Mfg. supervised the entire process. That the purchaser performed the assembly labor did not diminish the complexity of the assembly process. The Court focused on whether the subject matter of the contract was sufficiently complex to render its assembly essential to its sale. It was the fact that assembly required the supervising engineer’s expertise that influenced the court’s decision. In the instant case, the purchaser instead hired S & H as a general contractor who in turn hired other workmen. This nuance does not alter the analysis. As in York, the engineer’s expertise was required to complete assembly. There is nothing in the record that indicates Taft and Bucyrus considered S & H a replacement for the supervising engineer. In fact, the record supports the contrary conclusion which is that all parties to these contracts considered assembly of the dragline essential to its sale.
B. Establishing A Permanent Presence.
In SAR Mfg. v. Dumas Bros. Mfg., 526 F.2d 1283 (5th Cir.1976), the court concluded that the state’s forum closing statute did not work an impermissible burden on interstate commerce when applied to the activities and transactions conducted by Sar in Alabama. Sar was engaged in the sale of polyurethane foam which it manufactured in plants located in Texas, Georgia and Mississippi. Sar leased a warehouse in Alabama to receive and store the foam for processing and subsequent sale to in-state concerns. Sar employed seven full or part-time employees at the warehouse and maintained two vehicles at the warehouse on a full-time basis. On appeal, the court concluded that subjecting Sar to the state’s forum closing laws did not impermissibly burden interstate commerce.
The court relied on two Supreme Court cases4 and concluded that Sar’s intrastate foam sales were very much like Eli Lily’s intrastate drug sales. The court distinguished Allenberg Cotton, on the notion that under the facts in SAR, no nationwide marketing system would be impeded. 526 *1519F.2d at 1285. The distinction drawn by the court turns on the connection between intrastate and interstate portions of the transaction. The issue is whether the intrastate portion has taken on an independent character of its own that separates it from the interstate portion. Stated differently, if the out-of-state entity has performed sufficient in-state acts to render the two aspects of the overall transaction distinct, then the entity is subject to the forum closing laws. One factor which the court found to be probative of this independent character is whether the out-of-state entity has set up a permanent in-state presence. However, the focus of the court’s analysis remained whether the intrastate transaction is an essential element of a unitary interstate transaction.
The next case is Diversacon Industries v. Nat’l Bank of Commerce, 629 F.2d 1030, 1034-35 (5th Cir.1980), where the plaintiff, a highway construction contractor, contracted to build a portion of interstate highway in Louisiana. Diversacon, a Florida corporation, set up its administrative support personnel in its parent company’s Jackson, Mississippi office. One of Diversacon’s subcontractors defaulted and the defendant Bank refused to honor its construction surety agreement because Diversacon had failed to qualify to do business in the state. The court of appeals concluded that “the scope of Diversacon’s activities extended beyond the Mississippi border for the consummation of a definite interstate project,” thus “it would be an impermissible burden on interstate commerce to give effect to denial of access through this qualification statute.” Id. at 1034. The subcontract between Diversa-con and the subcontractor did not lose its interstate character simply because the general contractor established a presence in the subcontractor’s home state. The court noted that the Supreme “Court included in a federal definition of interstate commerce any activity of an intrastate nature which was an integral part of the overall interstate pattern or transaction.” Id. at 1033. The court further observed that “the agreement upon which Diversa-con is suing the Bank is clearly the single business transaction to which all of diversa-con’s activities related — the construction of the Louisiana highway.” Id. at 1034. This case is highly relevant to the present inquiry, where the out-of-state entity, S & H, contracted with local workers to work on a project that is in interstate commerce. The record in this case shows that S & H has not established a presence in the state, any more permanent than was Diversacon’s. Both S & H and Diversacon were present in the state for the sole purpose of completing a project which was in interstate commerce. The Diversacon court acknowledged the probative value of Diversacon’s presence in the state, but remained focused on the work performed and whether it was part of a unitary interstate transaction.
Because I believe assembly of the 1300-W was an essential element of an interstate transaction and nothing under the facts of this case removes the transaction’s interstate character, I would hold that application of Alabama’s forum closing law effects an impermissible burden on interstate commerce. Since the majority has concluded otherwise, however, I respectfully DISSENT.
. This case is also cited and discussed in the majority's opinion supra pp. 1510, 1511-12.
. Taft purchased an unassembled dragline. However, it, like the ice machine, was of no use until it was assembled. Taft had to supply a location and mechanics to be supervised, but the contract with Bucyrus clearly contemplated that Bucyrus' obligation would not be discharged until after the dragline was operational. The majority's observation that "entering into an erection contract ... [was something] Taft did not have to do in order to utilize the machine,” is simply not supportable by the record or common sense. It required over a year of work to get the machine operational so that Taft might “utilize” it. The dragline closely resembles the ice machine, "whose intrinsic value depends on its being united and made operative as a whole." York, 38 S.Ct. at 432.
.The majority notes: "Apparently, the [ice] machine was so complex that the engineer’s services were required to assemble the machine properly.” Supra p. 1512. As I noted previously, assembly of the dragline was also extraordinarily complex, a conclusion which is supported by the fact that an engineer's services were required to assemble the machine and it took 275 working days to complete. In another part of the opinion, the majority relies on the 275 days as evidence of S & H's permanent presence in the state. Supra p. 1512. Taken together, the majority’s observations compel the incomprehensible conclusion that assembly may only be of only medium complexity to be in interstate commerce. Too easy and it is not essential, too hard and it indicates permanent presence.
. Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974) (intrastate contract between cotton farmer and out-of-state cotton merchant’s in-state broker essential to interstate marketing mechanism and interstate aspect predominated); and Eli Lily & Co. v. Sav-On-Drugs, 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961) (independent efforts at instate marketing and distribution accomplished by Eli Lily's in-state office, enough to break interstate commerce connection).