Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 37653 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417). 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Section 252.247–7003 is added to 

read as follows: 

252.247–7003 Pass-Through of Motor 

Carrier Fuel Surcharge Adjustment to the 

Cost Bearer. 

As prescribed in 247.207, use the 

following clause: 

PASS-THROUGH OF MOTOR 

CARRIER FUEL SURCHARGE 

ADJUSTMENT TO THE COST BEARER 

(JUL 2009) 

(a) The Contractor shall pass through any 

motor carrier fuel-related surcharge 

adjustments to the person, corporation, or 

entity that directly bears the cost of fuel for 

shipment(s) transported under this contract. 

(b) The Contractor shall insert the 

substance of this clause, including this 

paragraph (b), in all subcontracts with motor 

carriers, brokers, or freight forwarders. 

(End of clause) 

[FR Doc. E9–17951 Filed 7–28–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 390 

Regulatory Guidance on the Definition 

of ‘‘Principal Place of Business’’ 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of regulatory guidance. 

SUMMARY: The FMCSA announces 

regulatory guidance concerning its 

definition of ‘‘principal place of 

business.’’ The regulatory guidance is 

presented in a question-and-answer 

format and is generally applicable to 

motor carrier operations subject to the 

Federal Motor Carrier Safety 

Regulations. No prior interpretations or 

regulatory guidance concerning the term 

‘‘principal place of business,’’ whether 

published or unpublished may be relied 

upon as authoritative if they are 

inconsistent with the guidance 

published today. This guidance will 

provide the motor carrier industry and 

Federal, State and local law 

enforcement officials with uniform 

information for use in determining 

which locations may be designated by a 

motor carrier as its principal place of 

business. 

DATES: Effective Date: This regulatory 

guidance is effective on August 12, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Bill Mahorney, Chief, Enforcement and 

Compliance Division, (202) 493–0001. 

Federal Motor Carrier Safety 

Administration, Department of 

Transportation, 1200 New Jersey Ave., 

SE., Washington, DC 20590. Office 

hours are from 9 a.m. to 5:30 p.m. EST, 

Monday through Friday, except legal 

holidays. 

SUPPLEMENTARY INFORMATION: 

Legal Basis 

The Motor Carrier Safety Act of 1984 

(Pub. L. 98–554, Title II, 98 Stat. 2832, 

October 30, 1984) (the 1984 Act) 

provides authority to regulate drivers, 

motor carriers, and vehicle equipment. 

It requires the Secretary of 

Transportation to prescribe regulations 

on commercial motor vehicle safety. 

The regulations shall prescribe 

minimum safety standards for 

commercial motor vehicles. At a 

minimum, the regulations shall ensure 

that—(1) Commercial motor vehicles are 

maintained, equipped, loaded, and 

operated safely; (2) the responsibilities 

imposed on operators of commercial 

motor vehicles do not impair their 

ability to operate the vehicles safely; (3) 

the physical condition of operators of 

commercial motor vehicles is adequate 

to enable them to operate the vehicles 

safely; and (4) the operation of 

commercial motor vehicles does not 

have a deleterious effect on the physical 

condition of the operators. (49 U.S.C. 

31136(a)). Section 211 of the 1984 Act 

also grants the Secretary broad power, 

in carrying out motor carrier safety 

statutes and regulations, to ‘‘prescribe 

recordkeeping and reporting 

requirements’’ and to ‘‘perform other 

acts the Secretary considers 

appropriate.’’ (49 U.S.C. 31133(a)(8) and 

(10)). 

The Administrator of FMCSA has 

been delegated authority under 49 CFR 

1.73(g) to carry out the functions vested 

in the Secretary of Transportation by 49 

U.S.C. chapter 311, subchapters I and 

III, relating to commercial motor vehicle 

programs and safety regulation. 

This document provides regulatory 

guidance to the public with respect to 

the definition of ‘‘principal place of 

business’’ in 49 CFR 390.5 of the 

Federal Motor Carrier Safety 

Regulations (FMCSRs). 

Members of the motor carrier industry 

and other interested parties may also 

access the guidance in this document 

through the FMCSA’s Internet site at: 

http://www.fmcsa.dot.gov. 

Specific questions addressing any of 

the interpretive material published in 

this document should be directed to the 

contact person listed above or the 

FMCSA Division Office in each State. 

Basis for This Guidance 

The regulatory guidance in this notice 

responds to recurring questions FMCSA 

has received concerning the definition 

of ‘‘principal place of business’’ in 49 

CFR 390.5: What location may a motor 

carrier designate as its principal place of 

business? 

Section 390.5 defines principal place 

of business as ‘‘the single location 

designated by the motor carrier, 

normally its headquarters, for purposes 

of identification under this subchapter. 

The motor carrier must make records 

required by parts 382, 387, 390, 391, 

395, 396, and 397 of this subchapter 

available for inspection at this location 

within 48 hours (Saturdays, Sundays, 

and Federal holidays excluded) after a 

request has been made by a special 

agent or authorized representative of the 

Federal Motor Carrier Safety 

Administration.’’ 

The original definition of ‘‘principal 

place of business’’ in § 390.5 required 

that the motor carrier designate a single 

location where records required by Parts 

387, 391, 394, 395, and 396 would be 

maintained. However, other provisions 

of the regulations permitted certain 

records to be maintained at other 

locations. (53 FR 18054). In 1993, the 

definition was revised to remove part 

394 from the regulatory text and to add 

part 390. (58 FR 33777). In 1995, the 

definition was revised again. However, 

it still required that the location 

designated by the carrier be a location 

where records were maintained and 

available for inspection. (60 FR 38744). 

The current definition of ‘‘principal 

place of business’’ was adopted in 1998 

in order to allow motor carriers with 

multiple terminals and business 

locations to maintain records, such as 

driver records of duty status or vehicle 

maintenance records, at a location 

where activity related to the records 

took place rather than at a company’s 

headquarters. The definition was 

revised to accompany a new § 390.29 

allowing motor carriers with multiple 

terminals or offices to maintain all 

records required by Subchapter B at 

regional offices, driver work reporting 

stations or the principal place of 

business. Nonetheless, it was still 

anticipated that in most cases the 

‘‘principal place of business’’ would 

also be the company headquarters. (63 

FR 33254). 

It has been the position of FMCSA 

and its predecessor agencies that a 


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37654 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

motor carrier’s principal place of 

business is a physical location where 

the motor carrier conducts a significant 

portion of its business and maintains 

company records and where 

management reports to work. In many 

instances, the principal place of 

business identified by a motor carrier 

will be the location where FMCSA 

conducts a safety audit or compliance 

review pursuant to part 385. For this 

reason, it is necessary to emphasize that 

the definition of ‘‘principal place of 

business’’ has always required that a 

motor carrier designate a single physical 

location operated, controlled, or owned 

by the motor carrier where the carrier 

conducts operations relating to the 

transportation of persons or property 

and where some if not all of the records 

required by parts 382, 387, 390, 391, 

395, 396 and 397 are regularly 

maintained. It has long been understood 

that the principal place of business is 

the location designated by the motor 

carrier for the purpose of managing and 

administering its safety and regulatory 

compliance programs. Activities 

conducted at the principal place of 

business include oversight, retention, 

and retrieval of records required to be 

maintained by the FMCSRs. 

Regulatory Guidance 

PART 390—FEDERAL MOTOR 

CARRIER SAFETY REGULATIONS; 

GENERAL 

Sections Interpreted 

Section 390.5 Definitions 

Question: What location may a motor 

carrier designate as its ‘‘principal place 

of business’’? 

Guidance: In instances where a motor 

carrier has more than one terminal or 

office, the regulations do not explicitly 

place a restriction on which location a 

motor carrier may designate as its 

principal place of business. The 

definition states that such a location is 

‘‘normally’’ the carrier’s headquarters; 

the rule does not require motor carriers 

to use the company’s corporate 

headquarters as its principal place of 

business. However, motor carriers are 

limited to using an actual place of 

business of the motor carrier. Moreover, 

a motor carrier may designate as its 

principal place of business only 

locations that contain offices of the 

motor carrier’s senior-most management 

executives, management officials or 

employees responsible for the 

administration, management and 

oversight of safety operations and 

compliance with the FMCSRs and 

Hazardous Materials Regulations. In 

determining its principal place of 

business a motor carrier must consider 

the following factors: (a) The relative 

importance of the activities performed 

at each location, and, if this factor is not 

determinative, then (b) time spent at 

each location by motor carrier 

management or corporate officers. 

FMCSA authorized representatives 

will use the above two factors in 

determining whether a motor carrier has 

designated an appropriate location as its 

principal place of business. In addition, 

FMCSA may also consider whether the 

location is operated, controlled or 

owned by the motor carrier, whether 

operations relating to the transportation 

of persons or property regularly take 

place at the designated location, 

whether any of the employees of the 

motor carrier regularly report to the 

location for duty, whether any leased or 

owned vehicles of the company are 

maintained on the premises, and 

whether any of the records required by 

parts 382, 387, 390, 391, 395, 396 and 

397 are maintained on the premises. In 

the event a carrier does not designate a 

qualifying location as its principal place 

of business, FMCSA may initiate 

appropriate enforcement action or take 

action regarding the carrier’s USDOT 

registration. 

A motor carrier with multiple 

business locations may maintain some 

records at locations of the motor carrier 

other than, or in addition to, its 

principal place of business. However, 

after a request has been made by an 

FMCSA authorized representative, a 

motor carrier with multiple business 

locations must make records required by 

parts 382, 387, 390, 391, 395, 396 and 

397 available for inspection at the 

principal place of business or other 

location specified by the special agent 

or authorized representative within 48 

hours. Pursuant to § 390.29, ‘‘Saturdays, 

Sundays, and Federal holidays are 

excluded from the computation of the 

48-hour period of time.’’ A motor carrier 

with a single business location must 

make records required by parts 382, 387, 

390, 391, 395, 396 and 397 available 

upon request. 

A motor carrier may not designate as 

its principal place of business any 

location where the motor carrier is not 

engaged in business operations related 

to the transportation of persons or 

property. For example, post office box 

centers or commercial courier service 

establishments that receive and hold 

mail or packages for third party pickup 

may not be designated a ‘‘principal 

place of business’’ (other than by the 

courier service provider itself). A motor 

carrier may not designate the office of a 

consultant, service agent, or attorney as 

the motor carrier’s principal place of 

business if the motor carrier is not 

engaged in operations related to the 

transportation of persons or property at 

that location. 

Question: May a motor carrier with a 

single business location, including a 

private residence, designate a different 

location as its ‘‘principal place of 

business’’? 

Guidance: No. The definition of 

‘‘principal place of business’’ in 49 CFR 

390.5 allows a carrier with multiple 

terminals or offices to designate a single 

terminal or office as its primary 

business location for identification 

purposes. Consistent with this 

definition, a motor carrier with a single 

place of business may designate only its 

actual place of business as the 

‘‘principal place of business.’’ 

Notwithstanding this restriction, a 

motor carrier and an authorized 

representative of FMCSA may agree that 

a compliance review or other 

investigation of a motor carrier will be 

conducted at a mutually acceptable 

location other than the motor carrier’s 

principal place of business. 

Issued on: July 24, 2009. 

Terry Shelton, 

Acting Chief Safety Officer. 

[FR Doc. E9–18142 Filed 7–28–09; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 09100091344–9056–02] 

RIN 0648–XQ57 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Shortraker Rockfish 

in the Western Regulatory Area of the 

Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting retention 

of shortraker rockfish in the Western 

Regulatory Area of the Gulf of Alaska 

(GOA). This action is necessary because 

the 2009 total allowable catch (TAC) of 

shortraker rockfish in the Western 

Regulatory Area of the GOA has been 

reached. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), July 26, 2009, through 2400 

hrs, A.l.t., December 31, 2009. 


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