For and on behalf of numerous foreign businesses, I have been involved with submitting designated agent agreements pursuant to 49 C.F.R. § 105.40 (“Agent Agreements”).  In my experience, PHMSA issues a form notice of approval, entitled Pipeline And Hazardous Materials Safety Administration (PHMSA) Agent Acknowledgement (the “Agent Acknowledgement”); as it explicitly states, the document evidences that “PMHSA acknowledges” the designation of agent by a non-US resident applicant.  To remove any confusion regarding its mandates, PHMSA fully recites § 105.40 on the face of the one-page Agent Acknowledgment form and, in fact, the statute comprises the majority of the page.

Curiously, by email only, I most-recently received notice that the majority of the Agent Acknowledgements that PHMSA had released to me were being placed on hold pending the provision of an email address, phone number and fax number for both the applicant and the designated agent, myself.  My initial thought was that it made no sense to request my email address when PHMSA obviously already had this information.  Indeed, PHMSA had emailed each of the Agent Acknowledgements to my email address demonstrating, for example, that they have my email address.  Given the additional fact that my phone and fax numbers can be readily found on my email or fax communications with PHMSA relating to § 105.40, it defies logic that PHMSA would now need to ask for it.  Regarding the non-US resident applicant, many do not comprehend English as a first language, and that is a main reason why PHMSA is requiring a US agent for foreign businesses in the first place.  It’s as if PHMSA, or its subcontractor, was making work for itself at my expense, and at taxpayers’ expense.

Since § 105.40 does not require the disclosure of phone or fax numbers, or email address, any adverse determination based upon the absence of this information is, presently, improper and unwarranted as a matter of law.  Even though PHMSA may assert that § 105.35 requires some or all of this contact information, it is currently irrelevant to an Agent Agreement, if only for the fact that

  • 105.35 seemingly relates only to administrative proceedings. One wonders why § 105.35 is also not emblazoned on PHMSA’s Agent Authorization form if it, too, is also a lawful requirement for approval.

PHMSA has posted a PHMSA-approved Agent Agreement (on PHMSA’s web site) that specifies phone and fax numbers and email address on the face of the form itself.  This may be true but, nevertheless, it does not automatically mean that PHMSA’s form is entirely consistent with the explicit requirements of the regulation—PHMSA is within its regulatory authority to request additional information outside the scope of § 105.40 but, under these circumstances, provision of the information by an applicant is, under current law, voluntary rather than mandatory.  In any event, it would appear prudent that going forward all non-US residents seeking to file a designated agent application pursuant to § 150.40 complete the PHMSA-suggested form.  This course of conduct should increase the odds of a trouble-free application process.

PHMSA’s decision to rely upon electronic communications as a substitute to using the United States Postal Service to deliver important business documents should undergo further evaluation before implementation.  While, as a lawyer, I am fully familiar with the notion that legal proceedings may be conducted entirely by electronic filing (known as e-filing, which is universal in federal courts and nearly universal in state courts), transmissions in connection with these legal or administrative proceedings have built-in security measures (e.g., enrollment and unique passwords), unlike current electronic communication by and between PHMSA and most if not all persons that it regulates.  A simple solution is to enact a protocol that requires supplementing any electronic notice with official written notice.  (In similar fashion, many judges have rules that require all parties to submit a hard copy of certain documents in addition to electronic filing.)

As a practical matter, it is common knowledge that email communications are highly susceptible to fraudsters and hackers; this is a primary reason that Corporate America, such as the your credit card issuer and bank, advises customers that important corporate communications are transmitted by regular US mail, while also warning customers to be wary of email communications relating to their customer accounts. The concern about computer hacking not only applies to hacking-into PHMSA’s computer system but, as importantly, into the multitude of differing computer systems maintained by the applicants, many of whom are located in remote areas in foreign countries with a reputation for porous and poorly-maintained computer systems and architecture, making them both an attractive and unwitting target.

This author cautions against email being the sole form of communicating a PHMSA Agent Acknowledgement, if only for the fact that any person could send this communication in contrast to, for example, delivering an official letter on agency letterhead signed by an authorized person.  PHMSA’s embrace of the benefits and expediency of electronic communication in lieu of sending the information through the U.S. Postal Service is a seeming rebuke by PHMSA of the USPS.  Adoption of a belts and suspenders approach regarding vital communications with non US-residents and their US-based designated agents appears to be a recommended approach that protects all interested parties


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