B-123460, OCTOBER 28, 1955, 35 COMP. GEN. 237

B-123460, OCTOBER 28, 1955, 35 COMP. GEN. 237

TRANSPORTATION - RATES - CLASSIFICATION - RADIOSONDE MODULATOR THE FREIGHT CLASSIFICATION FOR THE SHIPMENT OF A RADIOSONDE MODULATOR WHICH IS USED BY WEATHER STATIONS AND MILITARY INSTALLATIONS FOR UPPER AIR SOUNDINGS AND IS AN ASSEMBLY OF ELECTRICAL PARTS OF A RADIO TRANSMITTING APPLIANCE SHOULD BE ELECTRICAL APPLIANCES OR INSTRUMENTS, NOT OTHERWISE SPECIFIED.

TO FRANCIS W. MCINERNY, OCTOBER 28, 1955:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE ACTION OF THE TRANSPORTATION DIVISION OF OUR OFFICE IN DETERMINING THE PROPER CHARGES ON YOUR CLIENT'S " STATEMENT NUMBER A 11150 FREIGHT BILL NUMBER BT 32953.' YOU CLAIMED AND WERE PAID ON THIS BILL FREIGHT CHARGES OF $344.45 FOR TRANSPORTING A SHIPMENT DESCRIBED ON GOVERNMENT BILL OF LADING NO. WX- 8845925 AS 52 BOXES OF SCIENTIFIC INSTRUMENTS, NOIBN, WEIGHING 6240 POUNDS, FROM TOWSON, MARYLAND, TO WARNER ROBINS, GEORGIA, IN AUGUST 1949. OUR TRANSPORTATION DIVISION REQUESTED THE REFUND OF $212.79, HAVING DETERMINED THAT YOUR BILL HAD BEEN OVERPAID THAT AMOUNT, COMPUTED UPON THE BASIS OF RATES APPLICABLE ON ELECTRICAL APPLIANCES, N.O.S. YOU FORWARDED YOUR CLIENT'S CHECK IN THAT AMOUNT, AND REQUESTED A REVIEW OF THE BASIS EMPLOYED BY OUR OFFICE.

THE CONTROVERSY IS ONE CONCERNING THE PROPER DESCRIPTION, IN THE TERMS OF THE FREIGHT CLASSIFICATION, OF THE ARTICLE INVOLVED IN THIS CASE, WHICH THE RECORD SHOWS TO BE A RADIOSONDE MODULATOR. DEPARTMENT OF THE ARMY TECHNICAL MANUAL NO. TM11-2431 SHOWS THAT A RADIOSONDE MODULATOR IS A MAJOR COMPONENT OF A RADIOSONDE, THE LATTER BEING AN INSTRUMENT USED BY WEATHER STATIONS AND MILITARY INSTALLATIONS FOR UPPER AIR SOUNDINGS. SEEMS TO BE THE CONTENTION OF YOUR CLIENT THAT THE ARTICLE IS PROPERLY DESCRIBED AS A SCIENTIFIC INSTRUMENT, SUBJECT TO A DOUBLE-FIRST-CLASS RATING, WHILE THE DEPARTMENT OF THE ARMY AND OUR OFFICE CONTEND THAT THE ARTICLE IS PROPERLY DESCRIBED AS ELECTRICAL APPLIANCES N.O.S., SUBJECT TO A COLUMN-70 RATING.

THE VENDOR'S SHIPPING DOCUMENT NAMES THE ARTICLES WHICH, APPARENTLY, WERE CONTAINED IN EACH OF THE 52 BOXES TENDERED THE CARRIER ON BILL OF LADING NO. WX-8845925. THESE ARTICLES ARE SHOWN AS FOLLOWS:

RADIOSONDE MODULATOR (24 IN EACH BOX).

M1-310 H/AMT-1 W/BUCKLES.

TEMPERATURE EVALUATOR (1 IN EACH BOX).

TEMPERATURE SCALE (1 IN EACH BOX).

HUMIDITY CALIBRATION CHART (1 IN EACH BOX).

CABLE, TESTING (1 IN EACH BOX).

TEMPERATURE ELEMENTS (1 IN EACH BOX).

HUMIDITY ELEMENTS (2 IN EACH BOX).

DEPARTMENT OF THE ARMY TECHNICAL MANUAL TM 11-2430, TO WHICH YOU REFER IN YOUR REQUEST FOR REVIEW, SHOWS THAT THE RADIOSONDE MODULATOR CONSISTS OF A PLASTIC BASE UPON WHICH A PRESSURE UNIT, RELAY, VARIABLE RESISTOR, FIXED RESISTORS, AND A PLUG PANEL WITH MALE RECEPTACLES ARE MOUNTED. THE PRESSURE UNIT IS AN ASSEMBLY OF ANEROID CAPSULES, CONTACT ARM WITH CONTACT POINT, CONTACT ARM LIFTING LEVER, COMMUTATOR, AND ADJUSTMENT SCREW, ALL CONTAINED IN A FRAME. WITH EACH MODULATOR THERE IS INCLUDED AN ACCESSORY BOX CONTAINING A TEMPERATURE ELEMENT, A HUMIDITY ELEMENT, A PRESSURE CALIBRATION CHART, AND A PIECE OF POLISHING PAPER.

THE MODULATOR IS SHOWN TO BE AN ASSEMBLY OF RATHER COMMON ELECTRICAL PARTS WHICH ARE FOUND IN MANY OTHER ELECTRICAL APPLIANCES. THE MODULATOR, AS HERE SHIPPED, IS INCAPABLE, IN AND OF ITSELF, OF PERFORMING ANY FUNCTION. IT NEEDS THE PRESENCE OF ELECTRICAL ENERGY, SUPPLIED BY BATTERIES, TO ENABLE IT TO PERFORM ITS INTENDED FUNCTION. AT THAT POINT, IT STILL IS NOT CAPABLE OF INDEPENDENT USE, BUT SIMPLY ACTS AS A RELAY OF ELECTRICAL IMPULSES TO A TRANSMITTER, WHICH IN TURN TRANSMITS THE IMPULSES OR SIGNALS RECEIVED FROM THE MODULATOR TO RADIO RECEIVING APPARATUS. THE MODULATOR, WHEN PREPARED AND MADE READY FOR USE, AS SHOWN IN THE TECHNICAL MANUAL TM 11-2430, IS ATTACHED TO A SMALL ONE-TUBE RADIO TRANSMITTER AND TO RADIO A AND B BATTERIES. IT SEEMS CLEAR THAT THE COMPLETE UNIT OF MODULATOR, TRANSMITTER, AND BATTERIES IS PROPERLY DESCRIBED AS RADIO TRANSMITTING EQUIPMENT. RADIO TRANSMITTERS ARE NOT CLASSIFIED, AS SUCH, IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION. THE ACCEPTED CLASSIFICATION DESCRIPTION FOR RADIO TRANSMITTERS, FOR FREIGHT TRANSPORTATION PURPOSES, IS UNDERSTOOD TO BE ELECTRICAL APPLIANCES OR INSTRUMENTS, NOI.

SINCE THE MODULATOR IN QUESTION WORKS SOLELY BY ELECTRICAL ENERGY, AND IS BUT A PART OF A RADIO TRANSMITTING APPLIANCE WHICH IS COVERED BY THE CLASSIFICATION TERM "ELECTRICAL APPLIANCES OR INSTRUMENTS, NOI," THE SOUTHERN MOTOR CARRIERS RATE CONFERENCE MOTOR FREIGHT TARIFF NO. 4 F APPEARS TO PROVIDE A COLUMN-70 RATING FOR APPLICATION ON THIS SHIPMENT. AN EXAMINATION OF THE CITED TARIFF SHOWS THAT UNDER THE HEADING OF " ELECTRICAL APPLIANCES OR EQUIPMENT" IT LISTS MANY OF THE ARTICLES WHICH ARE COMPONENT PARTS OF THE MODULATOR, AS WELL AS OTHER ARTICLES OF A SIMILAR NATURE. THIS SEEMS TO PROVIDE A FURTHER INDICATION THAT THE MODULATOR IS PROPERLY DESCRIBED, IN CLASSIFICATION TERMS, AS AN ELECTRICAL APPLIANCE OR INSTRUMENT, NOI, AND THAT THE COLUMN-70 RATING IS PROPER. LISTING OF SIMILAR ARTICLES FOR COMPARISON PURPOSES IS AS FOLLOWS:

TABLE ITEM DESCRIPTION RATING 1760 THERMOSTATIC VALVES OR THERMOSTATS --- ----------------- 70 1850 APPLIANCES, ELECTRICAL, NOI -------------------- ------ 70 1850 ARMATURES --------------------------------------------- 70 1865 COMPENSATORS ------------------------------------------ 70 1865 CONDENSERS -------------------------------------------- 70 1865 ELECTRIC CURRENT TESTERS ------------------------------ 70 1870 ELECTRICAL INSTRUMENTS, NOI -------------------------- 70 1875 GENERATORS, OR MOTORS --------------------------------- 70 1875 HEAT REGULATING APPARATUS, AUTOMATIC ------------------ 70 1880 RADIO AERIAL KITS ------------------- ------------------ 70 1880 RECTIFIERS, NOI, BATTERY, RADIO OR TALKING MACHINE --- 70 1880 REGULATORS, INDUCTION OR VOLTAGE --------------------- - 70 1880 RHEOSTATS (RESISTORS) --------------------------------- 70 1885 TELEGRAPH INSTRUMENTS, OR PARTS, NOI ----------------- 70

WITH RESPECT TO THE CONTENTION THAT THE RATING PROVIDED FOR SCIENTIFIC INSTRUMENTS IS PROPER FOR APPLICATION TO THIS ARTICLE, IT IS OBSERVED THAT THE AUTHORITIES RELIED UPON BY YOU DO NOT APPEAR TO BE APT TO THIS CASE. THE CASES CITED ON PAGE 7 OF YOUR REQUEST FOR REVIEW, IN EACH INSTANCE, ARE CONCERNED WITH THE DEFINITION OF ARTICLES FOR TAX PURPOSES, AND DO NOT DEFINE THE ARTICLES FOR PURPOSES OF FREIGHT CLASSIFICATION. IF THE AUTHORITIES CITED ARE TO BE CONSIDERED PERTINENT, IN ROBERTSON V. OELSCHLAEGER, 137 U.S. 436, CITED BY YOU, ON PAGE 444 THERE IS FOUND THE FOLLOWING:

IN LIKE MANNER THE COUNSEL FOR THE PLAINTIFF STRENUOUSLY CONTENDS THAT THE JUDGE WAS WRONG IN NOT DECIDING THAT THE MINIMUM THERMOMETER ( EXHIBIT 29) IS A PHILOSOPHICAL INSTRUMENT. THE WITNESS SAYS IT IS FILLED WITH ALCOHOL, AND IS USED FOR MEASURING VERY LOW TEMPERATURES--- TEMPERATURES BELOW THE FREEZING POINT OF MERCURY. IT CAN BE USED WHERE THE MERCURY THERMOMETER CANNOT BE USED. HE ADDS: " IT IS A SCIENTIFIC INSTRUMENT, USED FOR SCIENTIFIC PURPOSES.' IT IS, HOWEVER, IN THE THE SAME CLASS WITH OTHER THERMOMETERS, WHICH THE JUDGE, AS WE THINK CORRECTLY, REGARDS AS INSTRUMENTS FOR DAILY USE IN THE ARTS AND IN COMMON LIFE, AND NOT SPECIALLY PHILOSOPHICAL INSTRUMENTS.

IN THIS CONNECTION, IT IS OBSERVED THAT THE RADIOSONDE MODULATOR IS IN DAILY USE AT WEATHER STATIONS. IT IS ALSO NOTED THAT THE CONTRACT UNDER WHICH THIS MODULATOR WAS PROCURED WAS FOR A TOTAL OF MORE THAN 50,000 MODULATORS, AND APPARENTLY, MANY MORE THOUSANDS HAVE BEEN AND ARE BEING PROCURED UNDER OTHER CONTRACTS. CERTAINLY, THE CONSTANT AND WIDESPREAD USE OF THIS ARTICLE REMOVES IT FROM THE FIELD OF PURELY SCIENTIFIC ENDEAVOR.

THE QUESTION OF THE PROPER CLASSIFICATION OF BOMBSIGHTS IN ERIE RAILROAD CO. V. UNITED STATES, 79 C.1CLS. 107, ALSO PRESENTS A DIFFERENT SITUATION. AS STATED BY THE COURT IN THAT CASE, THE BOMBSIGHT WAS A DISTINCT UNIT, COMPLEX IN NATURE, AND IN THE COURT'S OPINION THEY WERE SCIENTIFIC INSTRUMENTS,"OR CLOSELY ANALOGOUS THERETO," RATHER THAN A PART OF ORDNANCE, OR ORDNANCE STORES, BECAUSE " THE BOMB SIGHTS ARE ASSUREDLY NOT REPAIR OR SUBSTITUTE ARTICLES OR ORDNANCE AND APPARENTLY STAND ALONE AS INSTRUMENTS OF PRECISION * * *.' THE QUESTION THERE APPEARS TO HAVE BEEN WHETHER THE BOMBSIGHT WAS MORE ANALOGOUS, FOR RATING PURPOSES, TO A SCIENTIFIC INSTRUMENT OR TO A LESS CLOSELY DEFINED GROUP OF ARTICLES EMBRACED WITHIN THE TERM "ORDNANCE STORES.'

CONCERNING THE STATEMENT OF BOTH THE WESTERN CLASSIFICATION COMMITTEE AND THE OFFICIAL CLASSIFICATION COMMITTEE THAT RADIOSONDES SHOULD BE RATED AS SCIENTIFIC INSTRUMENTS, NOIBN, IT IS NOTED THAT SUCH A DETERMINATION WAS BASED ON INFORMATION DERIVED FROM CORRESPONDENCE WITH THE WAR DEPARTMENT ( DEPARTMENT OF THE ARMY) DURING 1945. ON APRIL 24, 1952, THE DEPARTMENT OF THE ARMY INFORMED OUR TRANSPORTATION DIVISION THAT THE TRANSPORTATION CHARACTERISTICS OF THE RADIOSONDES HAD BEEN RE-EVALUATED, AND THAT IT WAS NOW FOUND THAT RADIOSONDES SHOULD BE CLASSIFIED AS ELECTRICAL APPLIANCES OR INSTRUMENTS. YOU HAVE REFERRED TO THIS LETTER IN YOUR REQUEST FOR REVIEW.

IT HAS BEEN BROUGHT TO THE ATTENTION OF OUR OFFICE BY THE DEPARTMENT OF THE ARMY THAT THE NATIONAL CLASSIFICATION BOARD, THE CLASSIFICATION AGENT OF THE CARRIERS WHICH ARE PARTIES TO THE NATIONAL MOTOR FREIGHT CLASSIFICATION, INCLUDING YOUR CLIENT, ADVISED ANOTHER MEMBER CARRIER ON AUGUST 7, 1952, AS FOLLOWS:

* * * BASED ON THE INFORMATION SUBMITTED BY THE ARMY AS TO THE IDENTIFICATION OF A RADIOSONDE, THE BOARD IS IN AGREEMENT WITH THE ARMY'S OPINION THAT A RADIOSONDE MODULATOR, IN AND OF ITSELF, IS AN " ELECTRICAL APPLIANCE OR INSTRUMENT" IN ACCORDANCE WITH ITEM 34370 OF THE CLASSIFICATION.

THUS, YOUR CLIENT'S OWN CLASSIFICATION BOARD HAS CONCURRED IN THE DETERMINATION THAT RADIOSONDE MODULATORS ARE RATABLE AS ELECTRICAL APPLIANCES. IN THIS CONNECTION, YOUR ATTENTION IS REFERRED TO THE REPORT IN THE CASE OF BUCH EXPRESS, INC. V. UNITED STATES, C.1CLS. NO. 49294, DECIDED JULY 12, 1955, IN WHICH IT IS STATED:

IT IS NOTED AT THE OUTSET THAT THE QUESTION IN THIS CASE IS ONE OF FACT, I.E., UNDER WHICH CLASSIFICATION HEADING OF THE TARIFF DO RADAR SETS AN/TPL-1 FALL. PLAINTIFF HAS THE BURDEN TO SHOW (1) THAT THE CLASSIFICATION OF THIS EQUIPMENT AS " RADIO SENDING AND RECEIVING SETS" UNDER " ELECTRICAL APPLIANCES AND EQUIPMENT" MADE BY THE NATIONAL CLASSIFICATION BOARD OF THE AMERICAN TRUCKING ASSOCIATION, IS WRONG AND (2) THAT ITS CLASSIFICATION AS EITHER" RANGE OR HEIGHT FINDERS" OR " SCIENTIFIC INSTRUMENTS, N.O.I; " BOTH APPEARING UNDER " DRAWING INSTRUMENTS, OPTICAL GOODS OR SCIENTIFIC INSTRUMENTS" IS CORRECT.

ACCORDINGLY, FOR THE REASONS SET FORTH ABOVE, THE AUDIT ACTION ON YOUR CLIENT'S STATEMENT NO. A 11150, FREIGHT BILL NO. BT 32953, IS SUSTAINED. ACTION TO COLLECT OVERPAYMENTS ON OTHER BILLS OF YOUR CLIENT COVERING SIMILAR SHIPMENTS, NOW BEING HELD IN ABEYANCE, WILL BE TAKEN IN OUR TRANSPORTATION DIVISION.