[Federal Register Volume 74, Number 144 (Wednesday, July 29, 2009)]
[Rules and Regulations]
[Pages 37653-37654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18142]
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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.
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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published or unpublished may be relied upon as authoritative if they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 Sec.
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 Sec. 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
[[Page 37654]]
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 Sec.
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