B-143863, JAN. 12, 1962

B-143863, JAN. 12, 1962

TO TEXAS-ARIZONA MOTOR FREIGHT, INC.:

REFERENCE IS MADE TO YOUR TWO LETTERS OF AUGUST 26, 1960, ACKNOWLEDGED SEPTEMBER 2, 1960, IN WHICH YOU REQUEST REVIEW OF THE DEDUCTION ACTION TAKEN TO EFFECT COLLECTION OF $656.93 AND $263.88 DETERMINED TO HAVE BEEN OVERCHARGED IN CONNECTION WITH YOUR BILLS 6666 AND 7087. YOU FILED SUPPLEMENTAL BILLS 6666-A AND 7087-A, YOUR CLAIMS OC-6947 AND OC-6941, OUR FILES TK707-068 AND 707-067, TO SECURE REFUND OF THE AMOUNTS DEDUCTED BUT NO SETTLEMENT CERTIFICATES HAVE ISSUED AS TO SUCH CLAIMS. YOUR LETTERS INDICATE THAT THE QUESTION OF THE PROPER RATING TO BE APPLIED TO THE SHIPMENTS OF INTERNAL COMBUSTION ENGINES IS BEFORE THE UNITED STATES DISTRICT COURT IN LUBBOCK, TEXAS, IN A SUIT FILED BY T.I.M.E., INC. AND SUGGEST THAT THE AMOUNTS DEDUCTED ON THAT ACCOUNT ($522.69) INVOLVED IN YOUR TWO CLAIMS BE REFUNDED WITH THE UNDERSTANDING THAT FURTHER ADJUSTMENTS MAY BE IN ORDER IN ACCORDANCE WITH THE FINAL DECISION OF THE COURTS OF THE ISSUE INVOLVED. ALSO, YOU INDICATE THAT YOU BELIEVE THAT THE CHARGES AS BILLED ON A SHIPMENT OF CANOPIES UNDER GOVERNMENT BILL OF LADING AF 6712251 WERE PROPER AND THAT THE SUM OF $398.12 COLLECTED THROUGH DEDUCTION IN CONNECTION WITH THAT SHIPMENT SHOULD BE REFUNDED.

UNDER OUR PROCEDURES, NOTICES OF OVERCHARGES AND COLLECTION BY DEDUCTION OF AMOUNTS CONSIDERED OVERCHARGED AS AUTHORIZED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, ORDINARILY ARE NOT REVIEWABLE BY THE COMPTROLLER GENERAL SINCE NO FINAL ACTION AS BY SETTLEMENT CERTIFICATE HAS BEEN TAKEN ON THE OVERCHARGE CLAIMS. UNDER SUCH PROCEDURES SUPPLEMENTAL BILLS MAY BE FILED WITH OUR TRANSPORTATION DIVISION TO RECOVER ANY PART OF THE AMOUNTS DEDUCTED AND SUCH BILL WILL BE MADE THE SUBJECT OF A SETTLEMENT CERTIFICATE PREPARED IN THE TRANSPORTATION DIVISION, THUS EVIDENCING ITS FINAL ACTION ON YOUR CLAIM. IF THE CARRIER DOES NOT AGREE WITH THE ACTION SO TAKEN, THE MATTER THEN MAY BE SUBMITTED TO THE COMPTROLLER GENERAL FOR A REVIEW OF THE FINAL ACTION TAKEN IN THE TRANSPORTATION DIVISION. SEE IN THIS CONNECTION, B- 143594 DATED AUGUST 15, 1960, 40 COMP. GEN. 101, COPY ATTACHED, ADDRESSED TO THE STRICKLAND TRANSPORTATION COMPANY, QUOTING THE APPLICABLE SECTIONS OF THE CODE OF FEDERAL REGULATIONS. WHILE YOU HAVE FILED CLAIMS BY YOUR SUPPLEMENTAL BILLS FOR REFUND OF THE DEDUCTIONS, NO FINAL ACTION THEREON BY SETTLEMENT CERTIFICATE YET HAS BEEN TAKEN BY THE TRANSPORTATION DIVISION AND HENCE YOUR REQUESTS FOR REVIEW BY THE COMPTROLLER GENERAL ARE PREMATURE.

HOWEVER, THE COMPLETE RECORD HAS BEEN LOCATED AND IS NOW BEFORE US, AND, BASED UPON ADDITIONAL INFORMATION RECEIVED FROM THE DEPARTMENT OF THE ARMY AS TO THE LOADING OF TRUCKS USED IN CONNECTION WITH THE SHIPMENT MADE UNDER BILL OF LADING AF-6712251 DATED JUNE 17, 1957, WE HAVE AUTHORIZED OUR TRANSPORTATION DIVISION, IF OTHERWISE PROPER, TO REFUND THE DEDUCTION OF $398.12 MADE IN CONNECTION WITH SUCH SHIPMENT. SETTLEMENT OF SUCH ITEM SHOULD BE RECEIVED BY YOU IN DUE COURSE.

THE RATES CHARGED FOR THE SHIPMENTS OF THE ENGINES WERE ORIGINALLY BILLED AND PAID ON THE BASIS OF AN EXCEPTION RATING TO THE NATIONAL MOTOR FREIGHT CLASSIFICATION PUBLISHED IN ITEM 330 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 21-A, APPLYING ON ENGINES, INTERNAL COMBUSTION, RADIAL OR JET PROPULSION. IN OUR AUDIT WE DETERMINED THAT SINCE THE BILLS OF LADING WERE ANNOTATED TO INDICATE THAT THE SHIPMENTS WERE RELEASED AT LOWEST VALUATION, OR SUBJECT TO CONDITION 5 ON THE REVERSE OF THE BILL OF LADING, THEY WERE PROPERLY SUBJECT TO A RELEASED VALUE RATING PROVIDED IN THE CLASSIFICATION. WHEN YOU FAILED TO MAKE REFUND, THE RESULTING OVERCHARGES WERE COLLECTED BY DEDUCTION FROM YOUR BILL NO. 8720. YOU CONTEND THAT THE RELEASED VALUATION PROVISIONS AS SHOWN IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION DO NOT APPLY, AND THAT THE EXCEPTION RATING MUST BE USED.

IN UPJOHN COMPANY V. PENNSYLVANIA RAILROAD COMPANY, 306 I.C.C. 325, THE INTERSTATE COMMERCE COMMISSION HELD THAT THE RELEASED AND UNRELEASED CLASSIFICATION RATINGS SHOULD BE CONSIDERED FROM TRANSPORTATION STANDPOINT AS SEPARATE AND DISTINCT ITEMS, AND THAT A COMMODITY RATE, NOT SUBJECT TO A RELEASED VALUE PROVISION, SUSPENDED ONLY THE CLASSIFICATION RATING WHICH ALSO WAS NOT SUBJECT TO A RELEASED VALUE PROVISION. SEE ALSO, AMERICAN HOME FOODS, INC. V. DELAWARE, L. AND W.R.CO., 303 I.C.C. 655; AND DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY.CO., 306 I.C.C. 403.

YOU QUOTE NOTE 2 TO ITEM 330, ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 21-A, AS AUTHORITY FOR YOUR CONTENTION THAT THE EXCEPTION RATING MUST BE USED AND APPLIED. THIS NOTE PROVIDES THAT THE RELEASED VALUATION PROVISION IN THE CURRENT CLASSIFICATION WILL NOT APPLY IN CONNECTION WITH THE RATING IN ITEM 330.

THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, CONSIDERED THE SIGNIFICANCE OF A SIMILAR TARIFF PROVISION, APPEARING AS NOTE D, ITEM 61243 OF THE SOUTHERN MOTOR CARRIERS RATE CONFERENCE AGENT'S TARIFF NO. 515-C, AND HE CONCLUDED THAT IT HAS NO MATERIAL EFFECT ON THE PRINCIPLE ENUNCIATED IN THE AMERICAN HOME FOODS AND UPJOHN CASES. ACCORDINGLY, IT IS OUR VIEW THAT THE AUDIT ACTION IN THIS RESPECT IS CORRECT AND IT IS SUSTAINED. SEE 39 COMP. GEN. 501.

THE FACT THAT SUIT HAS BEEN FILED IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS TO RECOVER A SIMILAR DEDUCTION WOULD NOT WARRANT OUR REFUNDING AMOUNTS WE BELIEVE TO HAVE BEEN OVERCHARGED AND SUCH FILING DOES NOT NECESSARILY INDICATE A FINAL JUDICIAL DETERMINATION WILL RESULT THEREFROM, SINCE SUITS ARE OFTEN DISCONTINUED, OR THE ITEMS DROPPED THEREFROM.

HOWEVER, IN THE EVENT A FINAL JUDICIAL DETERMINATION OF THIS ISSUE IN THE SUIT FILED BY T.I.M.E. SHOULD BE ADVERSE TO OUR POSITION AND YOU FEEL THAT BASED THEREON ADDITIONAL AMOUNTS ARE DUE YOU, FURTHER CONSIDERATION WILL BE GIVEN THERETO AT YOUR REQUEST. IN THE INTERIM, WE PERCEIVE NO PROPER BASIS FOR MODIFYING OUR AUDIT ACTION IN THIS REGARD OR FOR REFUNDING AMOUNTS DEDUCTED FROM SUBSEQUENT BILLS UNDER RIGHTS SPECIFICALLY RESERVED TO THE GOVERNMENT BY 49 U.S.C. 66.