{"operation":"document","citation":"15-0128","title":"Ground Up Road Construction Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2015-08-17","effective_on":null,"summary":"15-0128 response to Ground Up Road Construction Inc. concerning 172.502.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0128.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0128.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0128","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2015/150128.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\n1200 New Jersey Avenue SE\nWashington. DC 20590\nMaterials Safety\nPipeline and Hazardous\nAdministration\nAUG 1 7 2015\nScott Stultz\nPresident\nGround Up Road Construction Inc.\nPO Box 1690\nMilton, WA 98354-1690\nRef. No. 15-0128\nDear Mr. Stultz:\nThis responds to your April 24, 2015 email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to prohibited placarding.\nSpecifically, you ask whether your company logo, when affixed to the door of a transport\nvehicle or to a piece of equipment, would be prohibited from being displayed while in\ntransportation.\nSection 172.502(a)(2) of the HMR states that, \"any sign, advertisement, slogan (such as\n\"Drive Safely\"), or device that, by its color, design, shape or content, could be confused\nwith any placard prescribed in this subpart is prohibited.\" In your email, you cite a letter\nfrom PHMSA Chief Counsel (Edwards to Mietus, August 2, 2006) that reverses an earlier\ninterpretation that a particular company logo was prohibited in transportation. The letter\nstates that because the company logo does not intend to mimic hazmat labels or placards,\nand is displayed at or near points on the vehicles where hazmat communication is not\nnormally displayed, it is not prohibited.\nThe scenario you describe is similar to the August 2, 2006 letter mentioned above in that\nyour proposed company logo contains similar design elements to those that are contained in\nhazmat placards (e.g., shape, color), but contains other graphics (e.g., company name,\ndepiction of a road), as well. You also note that your company logo is placed on the sides of\nequipment and on the doors of vehicles, positions that hazmat placards are not normally\nlocated.\n\n<<>>\n\nBased on the photographs and the information you provided, it is the opinion of this Office\nthat your company logo does not constitute a prohibited placard when placed on the doors of\nvehicles and equipment, as described. However, we caution you to use care in the sizing\nand placement of your company logo in order to avoid any possibility of confusion with a\nhazmat label or placard.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nCrecaioni.\n112. 00\nGoodall, Shante CTR (PHMSA)\nHip katility,\nFrom:\nGeller, Shelby CTR (PHMSA)\nSent:\nFriday, May 29, 2015 10:52 AM\n15 -0108\nTo:\nGoodall, Shante CTR (PHMSA)\nSubject:\nRE: Interpretation Letter Request\nFollow Up Flag:\nFollow up\nFlag Status:\nCompleted\nHi Shante,\nI wanted to double check that you did not need any more information from Mr. Kwate to process his interpretation\nrequest. I didn't notice that it was logged in the database, and just wanted to double check that there wasn't anything\nyou needed from him. I can also resend his original request, if needed.\nThanks,\nShelby\nFrom: Geller, Shelby CTR (PHMSA)\nTo: Goodall, Shante CTR (PHMSA)\nSent: Monday, May 04, 2015 4:45 PM\nSubject: RE: Interpretation Letter Request\nHi Shante,\nI spoke with Mr. Kwate and he indicated that the 4 attachments that could not be opened are not a part of his\ninterpretation request, but rather a portion of his email signature. Only the attachments that are numbered are\nimportant towards his interpretation request.\nPlease let me know if you would like any more information from Mr. Kwate.\nThanks,\nShelby\nFrom: Goodall, Shante CTR (PHMSA)\nTo: Geller, Shelby CTR (PHMSA)\nSent: Thursday, April 30, 2015 1:50 PM\nSubject: FW: Interpretation Letter Request\nHi Shelby:\nCan you please let Mr. Kwate know that some of the attachments cannot be open and to send them in another format?\nThank you,\nShante Goodall\nSenior Administrative Assistant\nUniSpec Enterprises, Inc.\n1\n\n<<>>\n\nUS DOT/PHMSA Contractor\nE24-410\nOffice: 202.366.9130\nFrom: Geller, Shelby CTR (PHMSA)\nTo: Hazmat Interps\nSent: Monday, April 27, 2015 10:56 AM\nSubject: FW: Interpretation Letter Request\nDear Shante and Alice,\nAttached is a formal letter of interpretation request. Another contact from the company, Mr. Mark Eschbach, spoke\nwith Steve Webb about the question.\nThanks,\nShelby\nFrom: Dan Kwate [mailto:dan@grdup.coml\nTo: PHMSA HM InfoCenter\nSent: Sunday, April 26, 2015 2:12 PM\nCc: Scott Stultz; Susan Stultz\nSubject: Interpretation Letter Request\nWe appreciate your consideration of the attached request and supporting documents.\nThank you,\nEstimator\nDan Kwate\nGround Up Road Construction inc.\nPO BOX 1690\nDBA M&M Road Recycle\nMilton, WA 98354-1690\nE dan@grndup.com | Wgrndup.com\nP 253.891.1413 | C 208.457.2838 | F 253.891.1425\nPlease consider the environment before printing this email.\n\n<<>>\n\nGoodall, Shante CTR (PHMSA)\nFrom:\nGoodall, Shante CTR (PHMSA)\nSent:\nThursday, April 30, 2015 1:49 PM\nTo:\nGeller, Shelby CTR (PHMSA)\nSubject:\nFW: Interpretation Letter Request\nAttachments:\nAFE846B2-68C7-4D37-A771-2D1121EC3D93.octet-stream; 797870F6-2B22-4F34-A30A-\nB733784007E4.octet-stream; F49F4606-D425-4910-A655-AF8CE737C81D.octet-stream;\n25325540-EFBB-447A-9ED4-9F471BA847FE.octet-stream; Logo Approval Request.pdf;\nAttach #1 Original Logojpeg; Attach #2 WSP Approved Logo.jpeg; Attach #3 Proposed\nLogojpeg; Attach #4 NationsRent.pdf; Attach #5 WSP Correspondence.pdf; Attach #6\nConstruction Zone Signs.jpg; Attach #7 Hazmat Placards.jpg\nHi Shelby;\nCan you please let Mr. Kwate know that some of the attachments cannot be open and to send them in another format?\nThank you,\nShante Goodall\nSenior Administrative Assistant\nUniSpec Enterprises, Inc.\nUS DOT/PHMSA Contractor\nE24-410\nOffice: 202.366.9130\nFrom: Geller, Shelby CTR (PHMSA)\nSent: Monday, April 27, 2015 10:56 AM\nTo: Hazmat Interps\nSubject: FW: Interpretation Letter Request\nDear Shante and Alice,\nAttached is a formal letter of interpretation request. Another contact from the company, Mr. Mark Eschbach, spoke\nwith Steve Webb about the question.\nThanks,\nShelby\nFrom: Dan Kwate [mailto:dan@grndup.com]\nTo: PHMSA HM InfoCenter\nSent: Sunday, April 26, 2015 2:12 PM\nCc: Scott Stultz; Susan Stultz\nSubject: Interpretation Letter Request\nWe appreciate your consideration of the attached request and supporting documents.\nThank you,\n1\n\n<<>>\n\nEstimator\nDan Kwate\nGround Up Road Construction Inc.\nPO Box 1690\nDBA M&M Road Recycle\nMilton, WA 98354-1690\nP 253.891.1413 | C 208.457.2838 | F253.891.1425\nE dan@grndup.com | Wgrndup.com\nPlease consider the environment before printing this email.\n\n<<>>\n\nGROUND UP ROAD CONSTRUCTION INC MIM\nDBA M&M Road Recycle\nRECYCLE\nROAD\nApril 24, 2015\nBY EMAIL\nHazardous Materials Information Center\nU.S. Department of Transportation\ninfocntr@dot.gov\nRe: Request for Clarification of 49 CFR, Section 172\nDear Transportation Specialist:\nThis letter is submitted as a formal request that the Pipeline and Hazardous Materials Safety\nAdministration of the U.S. Department of Transportation (PHMSA) determine whether our\nproposed business logo complies with 49 CFR, Section 172.\nGround Up Road Construction, Inc. began operations in March, 2008. We operate heavy\nequipment (asphalt grinders and pulverizers) on road construction projects. We transport our\nequipment to and from job sites on company-owned lowboy tractor-trailers. At the company's\nformation, we designed and began displaying our company logo (Attachment #1: Original Logo)\non the sides of our equipment and on the doors of our vehicles. Although we traveled throughout\nthe state and interacted with various Washington State Patrol (WSP) personnel without issues,\nWSP personnel at one particular weigh station deemed our logo in violation of 49 CFR, Section\n172. By Summer, 2010, we had re-designed our logo to comply with WSP and have operated\nwithout problems ever since. (Attachment #2: WSP Approved Logo) In Spring, 2015, we again\nre-designed our logo. In an effort to achieve compliance and avoid a lengthy and costly re-\ndesign process, we preemptively submitted our new design to WSP for review. (Attachment #3:\nProposed Logo) WSP verbally rejected our design, but supplied us with a determination issued\nby PHMSA (Reconsideration of letter Ref. No. 05-1053) (Attachment #4: NationsRent)\naddressing a situation similar to ours and suggested that we request approval to use our new logo\ndesign in transportation directly from PHMSA. (Attachment #5: WSP Correspondence)\nWe have carefully reviewed PHMSA's NationsRent reconsideration letter of August 2, 2006,\nand believe that the NationsRent case is on point, and therefore the determinations outlined in\nNationsRent are directly applicable to our case. In support of this claim, we wish to call your\nattention to the following:\n(1) The diamond-shaped box is a construction zone traffic sign - not a hazmat placard.\nExamples of construction zone signs and hazmat placards (Attachment #6: Construction\nZone Signs & Attachment #7: Hazmat Placards)\nIncludes the word \"road\"\nMailing: PO Box 1690 Milton, WA 98354 Location: 1107 140t Ave Ct E. Sumner, WA 98390\nOffice: 253.891.1413\nFax: 253.891.1425 Website: www.grounduproadconstruction.com\n\n<<>>\n\nGROUND UP ROAD CONSTRUCTION INC MIM\nDBA M&M Road Recycle\nRECYCLE\nROAD\nIncludes a graphic depiction of a road\nDesign elements extend beyond the diamond's borders on three sides\nOne point of the diamond is covered\nPoints of diamond rounded like a road sign - not pointed like a hazmat placard\nColor, while used in some hazmat placards, is definitely the color of construction zone\ntraffic signs\n(2) The diamond-shaped box is just one design element. Proposed logo also includes:\nCompany slogan: road destruction ahead\nCompany initials: GU\nGraphic depiction of a road\n(3) Location\nPlaced on sides of equipment and on doors of vehicles (where logos - not hazmat\nplacards - are commonly placed)\nWe believe that WSP's opinion regarding the use of our proposed logo in transportation is based\non what PHMSA in NationsRent referred to as \"the misunderstanding that a blanket prohibition\nis warranted or compelled under our regulations because the depicted logos bear certain design\nelements similar to DOT hazard communication designs.\" Further, while we have great\nappreciation for the work of emergency personnel and great respect for the need to protect the\nclarity of the hazmat placard's role in hazmat communication, we believe that the use of our\nproposed logo would not create an unreasonable risk of confusion amongst people trained to\ncommunicate through the use of hazmat placards. We therefore believe that we fall well within\nthe guidance provided by PHMSA in NationsRent.\nBased on the arguments set forth above, we respectfully request that PHMSA review WSP's\ndisapproval of the use of our proposed logo in transportation and issue written guidance\naddressing the application of 49 CFR Section 172 to the use of our proposed logo.\nSincerely,\nScott Stultz\nPresident\nMailing: PO Box 1690 Milton, WA 98354\nLocation: 1107 140th Ave Ct E. Sumner, WA 98390\nOffice: 253.891.1413\nFax: 253.891.1425\nWebsite: www.grounduproadconstruction.com\n\n<<>>\n\nFrom: Hurd, Melvin (WSP) [mailto: Meivin. Hurd@wsp.wa.govl\nTo: Mark Eschbach\nSent: Monday, March 23, 2015 3:26 PM\nSubject: RE: Ground Up\nMr. Eschbach,\nI will forward your email to CVE Officer 4 Kevin Valentine at our Commercial Vehicle Bureau headquarters in\nOlympia.\nTrooper Melvin Hurd\nCommercial Vehicle Enforcement Bureau\nWashington State Patrol\n15666 International Blvd.\nTukwila, WA 98188\n206-439-3830\nFrom: Mark Eschbach [mailto:mark@grndup.com]\nTo: Hurd, Melvin (WSP)\nSent: Monday, March 23, 2015 2:58 PM\nSubject: Ground Up\nGood afternoon Trooper Hurd,\nI have your contact information in my contact list. I hope I am contacting the correct person!\nA few years ago we were asked to change the design of our logo on our tractors since they could be confused\nfor a hazardous material identifier. We did change the logo to the approval of the WSP. We are currently\nredesigning our logo and would like to confirm with the WSP that the new logo is still appropriate? Please\nfind a copy of potential logos attached. If I have not contacted the correct person, can you forward to me that\nTroopers contact information?\nThank you,\nMark Eschbach\nSafety Department\nGround Up Road Construction Inc.\nDBA M&M Road Recycle\nPO Box 1690\nMilton, WA 98354-1690\nP 253.891.1413 | C 206.817.7777 | F 253.891.1425\nV3\nEmark@grndup.com | W grndup.com\nM&M\nbay Please consider the environment before printing this email.\nPage 2 of 2\n\n<<>>\n\nFriday, April 24, 2015 at 2:58:07 PM Pacific Daylight Time\nSubject: FW: Ground Up\nDate:\nFriday, April 24, 2015 at 9:07:02 AM Pacific Daylight Time\nFrom:\nMark Eschbach\nTo:\nDan Kwate\nFrom: Hurd, Melvin (WSP) [mailto:Melvin.Hurd@wsp.wa.gov]\nTo: Mark Eschbach\nSent: Friday, March 27, 2015 2:16 PM\nSubject: RE: Ground Up\nMr. Eschbach,\nAttached is the information I spoke to you about on the phone. This is an interpretation that another\ncompany was given in regards to the same issue your company has.\nYou may be able to get the same type of review by contacting the Pipeline and Hazardous Material Safety\nAdministration.\nhttp://www.phmsa.dot.gov/\nTrooper Melvin Hurd\nCommercial Vehicle Enforcement Bureau\nWashington State Patrol\n15666 International Blvd.\nTukwila, WA 98188\n206-439-3830\nSent: Thursday, March 26, 2015 1:28 PM\nFrom: Mark Eschbach [mailto:mark@grndup.com]\nTo: Hurd, Melvin (WSP)\nSubject: RE: Ground Up\nGood afternoon Trooper Hurd,\nI have not heard back from Officer Valentine. Do you mind forwarding to me his contact information?\nThank you,\nMark Eschbach\nSafety Department\nGround Up Road Construction Inc.\nPO Box 1690\nDBA M&M Road Recycle\nMilton, WA 98354-1690\nP 253.891.1413 | C 206.817.7777 | F 253.891.1425\nE mark@grdup.com | Wgmdup.com\nM&M\nis Please consider the environment before printing this email.\nPage 1 of 2\n\n<<>>\n\nApril 3, 2006\nDLA Piper Rudnick Gray Cary US LLP\nRyan Compton\nJohn Mietus\nRestrictions\nIs Consistent with HMR Placarding\nNationsRent Branding on Equipment\n\n<<>>\n\nbillion\nCenters)\nRegister\n• Ranked 6th largest US equipment rental company by Rental Equipment\n• Over 100,000 items of more than 600 types, with an acquisition cost of $1.1\n• 267 locations in 26 states nationwide (including Lowe's Home Improvement\nConstruction Equipment\nNationsRent Supplies Familiar, Portable\n\n<<>>\n\n908638, and 920751)\n• 1400 trucks (303 IRP-plated) and 453 trailers\nAlmost 1500 drivers subject to the FMCSRs, 729 with CDLS\n• Ranked among the top 100 private fleets by Fleet Owners Magazine\n• Three operating motor carriers with strong safety records (DOT 813891,\nBetween Yards and Job Sites\nNationsRent Vehicles Transport Equipment\n\n<<>>\n\nNationsRent\n1-800-No Sweat\na Diamond-Shaped Logo\nSome NationsRent Branding Includes\n«1-562-2081\n\n<<>>\n\n1\nW2;\nwith carder comme\npare t0nd, Randy Canton and detrance\n991,1\nresembles none of the standard hazmat placard colors.\ngraphic information displayed on placards and labels.\n• Its color is the common yellow shade used on highway warning signs; it\n• Its simple, two-word message contrasts with the word, class number, and\nRather Than Hazmat Placards\nThe Diamond Logo Echoes Familiar Road Signs\nOXIDIZER\nFLAMMABLE\n\n<<>>\n\nwith a label.\n(emphasis added)\n....\ndesign, shape or content, could be confused with any placard....\ncontainer, unit load device, motor vehicle or rail car... any sign,\n• 172.502(a)(2): [No] person may affix or display on a packaging, freight\n• 172.401(b): [No] carrier may transport a package bearing any marking or\nadvertisement, slogan (such as \"Drive Safely\"), or device that, by its color,\nlabel which by its color, design, or shape could be confused with or conflict\nAddresses Vehicles and Packagings\nThe HMR Prohibition on Confusing Markings\n\n<<>>\n\nits transportation fleet.\ndiamond logo on vehicles with a special logo accepted by RSPA:\n• In 2000 NationsRent considered addressing concerns over a solitary\n• However, NationsRent now has removed the diamond logo from vehicles in\nNationsRent\nthe Diamond Logo\nNationsRent Road Vehicles Do Not Display\n1-800-No Sweat\n\n<<>>\n\n1-80C-No Swent\n«MotionstantO\nDiamond Logo With Other Design Elements\nNationsRent Equipment Generally Displays The\n0=10 0\n\n<<>>\n\nGĞ-425\nand Packagings That May Carry Hazmats\nEquipment Is Readily Distinguished From Vehicles\n\n<<>>\n\nDLA Piper Rudnick Gray Cary US LLP\nDLA PIPER RUDNICK\n1200 Nineteenth Street, N.W.\nWashington, D.C. 20036-2412\nGRAYCARY\nT 202.861.3900\nW www.dlapiper.com\nF 202.223.2085\njohn.mietus@dlapiper.com\nJOHN R. MIETUS, JR.\nT 202.861.6466 F 202.689.8572\nMay 3, 2006\nBY HAND\nHon. Brigham McCown\nActing Administrator\nPipeline and Hazardous Materials Safety Administration\n400 Seventh Street, SW, Suite 8410 (PH-2)\nWashington, DC 20590\nRe:\nRequest for Reconsideration of Letter Ref. No. 05-1053\nDear Mr. McCown:\nBy letter dated July 29, 2005, the Pipeline and Hazardous Materials Safety\nAdministration (\"PHMSA\") responded to a California Highway Patrol inquiry concerning the\napplication of sections 172.401(b) and 172.502(a)(2) of the Hazardous Materials Regulations\n(\"HMRs\") to elements of logos displayed by our client, NationsRent, on its rental equipment.\nWe appreciate the opportunity that you afforded us on April 3, 2006 to meet with you and key\nPHMSA officials and staff. We've enclosed a copy of the meeting presentation that we used in\nour discussion with you.\ntransportation safety. But as we discussed during the meeting, the company is concerned that the\nNationsRent recognizes and respects the role that the HMRs play in helping to ensure\nletter could be interpreted to limit NationsRent's ability to display its longstanding logo even in\ncontexts where the sections cited above do not apply -- for example, when displayed on\nequipment such as aerial platforms -- or where the logo would not be confusingly similar,\nespecially when it is combined with other design or text elements.\nServing clients globally\n\n<<>>\n\nHon. Brigham McCown\nMay 3, 2006\nPage 2\nFor the reasons set forth in the presentation and during our meeting, NationsRent\nrespectfully requests that PHMSA reconsider its position in Ref. No. 05-1053 and issue written\nguidance that more specifically addresses the application of sections 172.401(b) and\n172.502(a)(2) to the NationsRent logo.\nRespectfully submitted,\nHenry.\nRyan Compton\nCounsel for NationsRent\nEnclosure\n~WASHI:4787633.v2|\n:: =","truncated":false,"body_characters":18436}