37652 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 247 and 252 

RIN 0750–AG30 

Defense Federal Acquisition 

Regulation Supplement; Motor Carrier 

Fuel Surcharge (DFARS Case 2008– 

D040) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD has issued an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement Section 884 of 

the National Defense Authorization Act 

for Fiscal Year 2009. Section 884 

requires DoD to ensure that fuel-related 

adjustments in contracts for carriage are 

passed through to the person bearing the 

cost of the fuel to which the adjustment 

relates. 

DATES: Effective date: July 29, 2009. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before September 28, 2009, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D040, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2008–D040 in the subject 

line of the message. 

Æ Fax: 703–602–7887. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Mr. Mark 

Gomersall, OUSD(AT&L)DPAP(DARS), 

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Æ Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, 703–602–0302. 

SUPPLEMENTARY INFORMATION

A. Background 

Section 884 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417) requires DoD to take 

appropriate actions to ensure that, to the 

maximum extent practicable, in all 

carriage contracts that provide for a fuelrelated adjustment, any such adjustment 

is passed through to the person who 

bears the cost of the fuel to which the 

adjustment relates. These actions 

include the insertion of a clause, with 

appropriate flow-down requirements, in 

all contracts with motor carriers, 

brokers, or freight forwarders providing 

or arranging truck transportation or 

services providing for a fuel-related 

adjustment. This interim rule adds a 

contract clause at DFARS 252.247–7003 

to implement the statutory requirement. 

The interim rule also adds this new 

clause to paragraphs (b) and (c) of 

DFARS 252.212–7001, Contract Terms 

and Conditions Required to Implement 

Statutes or Executive Orders Applicable 

to Defense Acquisitions of Commercial 

Items. For administrative purposes only, 

this addition to 252.212–7001 is shown 

with the amendments to 252.212–7001 

made by DFARS Case 2008–D003, 

published elsewhere in this edition of 

the Federal Register. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

The objective of the rule is to 

establish a DoD contract clause 

addressing the statutory requirement for 

fuel-related contract adjustments to be 

passed to the entity bearing the cost of 

the fuel. The legal basis for the rule is 

Section 884 of Public Law 110–417. The 

rule will apply to motor carriers, 

brokers, and freight forwarders 

providing or arranging truck 

transportation services under DoD 

contracts and subcontracts. The number 

of small entities to which the rule will 

apply is unknown at this time. 

However, DoD anticipates that the rule 

will benefit small entities by ensuring 

that fuel-related contract adjustments 

are passed to the appropriate party. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2008–D040. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. This interim rule implements 

Section 884 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417). Section 884 requires 

DoD to take appropriate actions to 

ensure that, to the maximum extent 

practicable, any fuel-related adjustment 

in a contract for carriage is passed 

through to the person who bears the cost 

of the fuel to which the adjustment 

relates. These actions include the use of 

a clause, with appropriate flow-down 

requirements, in all contracts with 

motor carriers, brokers, or freight 

forwarders providing or arranging truck 

transportation or services providing for 

a fuel-related adjustment. Comments 

received in response to this interim rule 

will be considered in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 247 and 

252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR Parts 247 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

Parts 247 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

PART 247—TRANSPORTATION 

■ 2. Section 247.207 is added to read as 

follows: 

247.207 Solicitation provisions, contract 

clauses, and special requirements. 

Use the clause at 252.247–7003, PassThrough of Motor Carrier Fuel 

Surcharge Adjustment to the Cost 

Bearer, in solicitations and contracts for 

carriage in which a motor carrier, 

broker, or freight forwarder will provide 

or arrange truck transportation services 

that provide for a fuel-related 

adjustment. This clause implements 

Section 884 of the National Defense 


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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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