B-143645, OCT. 13, 1960

B-143645: Oct 13, 1960

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 25. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID TRANSPORTATION CHARGES COMPUTED ON THE BASIS OF A CLASS-100 COMBINATION THROUGH RATE ON THE CLASS A UNITS AND OF A CLASS-55 COMBINATION THROUGH RATE ON THE CLASS B UNITS. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE IT WAS DETERMINED THAT BOTH CLASS A AND CLASS B JET THRUST UNITS WERE ENTITLED TO THE CLASS-55 RATING PROVIDED IN ITEM NO. 3870 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. FOR YOUR INFORMATION THERE IS ENCLOSED A COPY OF OUR DECISION OF JULY 25. THAT THE JET THRUST UNITS BOTH CLASS A AND CLASS B ARE A PARTICULAR TYPE OF ROCKET MOTOR WHICH. ARE EMBRACED IN THE TERM "ROCKET MOTORS.'.

B-143645, OCT. 13, 1960

TO STRICKLAND TRANSPORTATION COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1960, ACKNOWLEDGED AUGUST 4, YOUR REFERENCE STS CLAIM NO. GAO 9498/59, CLAIMANT'S NO. 339540-4/59-N- 8321, IN WHICH YOU REQUEST THAT WE WITHHOLD COLLECTION OF AN OVERCHARGE STATED AGAINST YOUR BILL NO. 8321, VOUCHER NO. 339540.

THE SHIPMENT HERE INVOLVED CONSISTED OF IGNITERS, JET THRUST CLASS B EXPLOSIVES AND OF JET THRUST UNITS CLASS A AND CLASS B EXPLOSIVES TRANSPORTED FROM NIMBUS, SACRAMENTO, CALIFORNIA, TO YORKTOWN, VIRGINIA, UNDER BILL OF LADING NO. N-30973842, DATED DECEMBER 31, 1958. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID TRANSPORTATION CHARGES COMPUTED ON THE BASIS OF A CLASS-100 COMBINATION THROUGH RATE ON THE CLASS A UNITS AND OF A CLASS-55 COMBINATION THROUGH RATE ON THE CLASS B UNITS. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE IT WAS DETERMINED THAT BOTH CLASS A AND CLASS B JET THRUST UNITS WERE ENTITLED TO THE CLASS-55 RATING PROVIDED IN ITEM NO. 3870 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A- 4, MF-I.C.C.NO. 1, FOR APPLICATION TO SHIPMENTS OF "ROCKET MOTORS," RESULTING IN THE INVOLVED OVERPAYMENT. FOR YOUR INFORMATION THERE IS ENCLOSED A COPY OF OUR DECISION OF JULY 25, 1960, B-139611, HOLDING, IN THE CASE OF A SIMILAR SHIPMENT, THAT THE JET THRUST UNITS BOTH CLASS A AND CLASS B ARE A PARTICULAR TYPE OF ROCKET MOTOR WHICH, IN THE ABSENCE OF ANY DIFFERENTIATION BETWEEN CLASS A OR CLASS B ROCKET MOTORS OR OTHER MORE SPECIFIC DESCRIPTION IN THE CLASSIFICATION, ARE EMBRACED IN THE TERM "ROCKET MOTORS.'

IN YOUR LETTER YOU REFER TO A CONFERENCE BETWEEN MEMBERS OF OUR TRANSPORTATION DIVISION AND MESSRS. MACMILLAN AND W. J. BURNS, OF THE MUNITIONS CARRIERS CONFERENCE, AND INDICATE THAT IT WAS AGREED "* * * TO WITHHOLD ANY COLLECTIONS UNTIL SUCH TIME AS IT CAN BE DETERMINED WHAT JATO PERIOD IS TO BE THE SUBJECT FACTION (SIC)" PRESUMABLY, SUBJECT TO DEDUCTION ACTION. WE UNDERSTAND THAT ON JULY 20, 1960, AT THE REQUEST OF MR. WILLIAM BURNS, REPRESENTING MUNITIONS CARRIERS CONFERENCE, A CONFERENCE WAS HELD BETWEEN MESSRS. BURNS AND MACMILLAN, REPRESENTING MUNITIONS CARRIERS CONFERENCE, AND MESSRS. O. V. STOVALL, J. H. COOPER, H. K. WILSON AND WILLIAM LEVENSTEIN OF OUR TRANSPORTATION DIVISION. IT IS REPORTED THAT AT THIS CONFERENCE THE REPRESENTATIVES OF OUR TRANSPORTATION DIVISION ADVISED THAT IT MIGHT POSSIBLY BE ABLE TO RESCHEDULE OUR DEDUCTION TIME IF NOTIFIED BY A PARTICULAR CARRIER THAT IT HAD RECEIVED MORE DEDUCTION NOTICES THAN IT COULD REASONABLY ABSORB. IT DOES NOT APPEAR THAT THERE WAS ANY AGREEMENT TO WITHHOLD DEDUCTION ACTION GENERALLY PENDING A JUDICIAL OR OTHER DETERMINATION OF THE ISSUE INVOLVED. ON THE CONTRARY IT WAS EXPRESSLY INDICATED THAT AS TO SHIPMENTS MADE AFTER AUGUST 26, 1958, OUR DEDUCTION ACTION WOULD NOT BE WITHHELD BECAUSE OF THE THREE- YEAR PERIOD OF LIMITATIONS IN PUBLIC LAW 85-762, 72 STAT. 859, AMENDING 49 U.S.C. 66. THE SHIPMENT INVOLVED IN THE PRESENT OVERPAYMENT WAS TRANSPORTED SUBSEQUENT TO AUGUST 26, 1958, THE EFFECTIVE DATE OF PUBLIC LAW 85-762 WHICH AMENDED THE INTERSTATE COMMERCE ACT BY REDUCING TO A PERIOD OF THREE YEARS THE TIME WITHIN WHICH DEDUCTIONS MAY BE MADE UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, FOR OVERCHARGES DETERMINED IN OUR AUDIT OF PAYMENTS FOR TRANSPORTATION CHARGES. IF SUCH DEDUCTIONS ARE NOT SO MADE THE RIGHT TO DEDUCT APPEARS TO BE LOST.

ACCORDINGLY, IN THE ABSENCE OF SOME COMPELLING REASON WHICH WOULD WARRANT A REVISION OF OUR POSITION IN THIS MATTER, AS STATED IN OUR DECISION OF JULY 25, 1960, B-139611, AND IN VIEW OF THE TIME LIMITATION CONTAINED IN THE ACT OF AUGUST 26, 1958, WE WOULD NOT BE WARRANTED IN DELAYING OUR COLLECTION ACTION PENDING "* * * FINAL SATISFACTORY CONCLUSION * * *" OF THE ISSUE AT SOME INDEFINITE AND UNASCERTAINABLE FUTURE TIME.