B-150446, MAY 9, 1963

B-150446, MAY 9, 1963

TO SOUTHERN PACIFIC COMPANY:

WE REFER AGAIN TO YOUR LETTER OF DECEMBER 5, 1962, FILE YG-85-WW 8466-4-B -T-L, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE DATED AUGUST 7, 1962 (OUR CLAIM FILE NO. TK-733618). THE SETTLEMENT DISALLOWED YOUR CLAIM FOR $2,080.12, THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR TRANSPORTING THREE SHIPMENTS OF GOVERNMENT PROPERTY FROM KNOXVILLE, TENNESSEE, TO CADET, TEXAS, UNDER GOVERNMENT BILLS OF LADING NO. N- 31333288, N-31333287, AND N-31333283, DURING MARCH AND APRIL 1955.

AT ISSUE HERE IS THE TRANSPORTATION CLASSIFICATION RATING APPLICABLE TO SHIPMENTS OF ARTICLES DESCRIBED ON THE PERTINENT GOVERNMENT BILLS OF LADING AS "AUTOMOBILE, FREIGHT, INCLUDING TRACTOR, SU, WHEELS ON WITH DUMPING HOISTS MOUNTED ON TRUCK," AND COMMONLY CALLED A "TRUCK MOUNTED DEMPSTER DUMPSTER.' YOU CONTEND THAT THE ARTICLE IS SUBJECT TO THE CLASS 85 CARLOAD RATING IN ITEM 43780 OF THE UNIFORM FREIGHT CLASSIFICATION ON FREIGHT AUTOMOBILES. THE DISALLOWANCE OF THE CLAIM IS BASED ON THE PREMISE THAT THE ARTICLE IS SUBJECT TO THE CLASS 45 CARLOAD RATING IN ITEM 31890 OF THE CLASSIFICATION ON "MACHINERY OR MACHINES NOIBN, SU; " WE CONCLUDE THAT THE MACHINERY, NOIBN, RATING IS THE APPLICABLE RATING ON THE SHIPMENTS.

THE TRUCK-MOUNTED DEMPSTER DUMPSTER IS MORE SPECIFICALLY DESCRIBED IN CONTRACT NO. DA-11-184-ENG-13156, THE PROCUREMENT CONTRACT SHOWN ON THE BILLS OF LADING AS AUTHORITY FOR SHIPMENT, AS A "HOIST-HAUL UNIT, HYDRAULICALLY OPERATED FOR THE COLLECTION AND DUMPING OF DETACHABLE REFUSE CONTAINERS MOUNTED ON GOVERNMENT FURNISHED 5 TON 4 BY 2 CHASSIS.' ITS NET SHIPPING WEIGHT IS 15,198 POUNDS. THE CONTRACTOR'S STANDARD MAINTENANCE MANUAL, REQUIRED BY THE CONTRACT TO BE FURNISHED WITH EACH UNIT, SHOWS THAT THE HOIST-HAUL UNIT, CONSISTING BASICALLY OF A CARRIAGE ASSEMBLY AND A BOOM ASSEMBLY, IS MOUNTED ON A SUB-FRAME ASSEMBLY FASTENED TO THE 5-TON, 4 BY 2 CHASSIS WITH MOUNTING BOLTS. IT IS EQUIPPED WITH A HYDRAULIC PUMP, LOCATED BENEATH THE EXTREME FRONT END OF THE UNIT, WHICH IS COUPLED BY A DRIVE SHAFT TO A POWER TAKE-OFF MOUNTED IN THE CHASSIS. THE POWER TAKE- OFF IS OPERATED BY A CONTROL LEVER LOCATED IN THE CAB OF THE CHASSIS. HYDRAULIC OIL TANK IS LOCATED NEAR THE BACK OF THE UNIT, ABUTTING THE CAB OF THE CHASSIS. IT SUPPLIES OIL TO THE HYDRAULIC PUMP. THE PUMP FORCES A FLOW OF OIL TO THREE CYLINDERS WHICH ARE OPERATED THROUGH A VALVE CONTROL STAND, ALSO MOUNTED IN THE CAB OF THE CHASSIS. THE CONTROL STAND HAS TWO LEVERS, ONE CONTROLLING THE HORIZONTAL CYLINDER WHICH MOVES THE CARRIAGE ASSEMBLY BACK AND FORTH; THE OTHER CONTROLLING THE VERTICAL CYLINDERS WHICH RAISE AND LOWER THE BOOM ASSEMBLY. THE FUNCTION OF THE TRUCK- MOUNTED UNIT IS TO LIFT, HAUL AND DUMP TYPES OF DETACHABLE REFUSE CONTAINERS HAVING A CUBICAL CAPACITY OF 10 YARDS.

IN SUPPORT OF YOUR POSITION THAT THE TRUCK-MOUNTED DEMPSTER DUMPSTER IS SUBJECT TO THE CLASS 85 CARLOAD RATING ON FREIGHT AUTOMOBILES, YOU ENCLOSED WITH YOUR LETTER REQUESTING REVIEW A COPY OF A REPORT ON THE SHIPMENTS FROM THE SOUTHERN WEIGHING AND INSPECTION BUREAU. THE BUREAU'S REPORT CONTAINS THESE EXCERPTS FROM AN OPINION OF THE SOUTHERN CLASSIFICATION COMMITTEE:

"FROM THE INFORMATION CONTAINED IN THESE PAPERS IT APPEARS THAT SHIPMENT CONSISTED OF A HYDRAULIC GARBAGE HOIST MOUNTED ON A GMC TRUCK CHASSIS, THE HOIST BEING WHAT IS KNOWN AS A ,DEMPSTER DUMPSTER.' WE HAVE HAD OCCASION TO PASS ON THESE THINGS BEFORE AND WE HAVE CONSISTENTLY HELD THEM TO BE COMBINATION ARTICLES UNDER RULE 18 OF THE CLASSIFICATION, WHICH RESULTS IN THEIR BEING ASSESSED CHARGES ON BASIS OF FREIGHT AUTOMOBILES.

"THEY ARE NOT RATABLE AS MACHINERY, NOIBN, AS CLAIMED BY THE GENERAL ACCOUNTING OFFICE. THESE ARTICLES CONSIST OF A REGULAR FREIGHT AUTOMOBILE CHASSES (SIC) TO WHICH THE HYDRAULIC HOIST IS ATTACHED AFTER CERTAIN MINOR MODIFICATIONS. THEY ARE COMBINATION ARTICLES IN THAT THE TWO COMPONENTS OF THE COMBINATION COULD BE AGAIN SEPARATED AND READILY IDENTIFIABLE AS FREIGHT AUTOMOBILE CHASSIS AND HYDRAULIC HOISTS. IN OTHER WORDS, THEY HAVE NOT LOST THEIR INDIVIDUAL IDENTITIES BY BEING COMBINED ONE WITH THE OTHER. IN ORDER TO BE RATABLE AS MACHINERY OR MACHINES, NOIBN, IT WOULD BE NECESSARY THAT THE ARTICLE BE BUILT FROM THE GROUND UP AS A SINGLE, INDIVIDUAL COMMODITY NOT CAPABLE OF BEING SEPARATED INTO IDENTIFIABLE COMPONENTS; IN OTHER WORDS, A COMPLETE ARTICLE IN AND OF ITSELF. THIS IS NOT TRUE OF THE SUBJECT COMMODITY.'

RULE 18 OF THE UNIFORM FREIGHT CLASSIFICATION PROVIDES:

"WHEN NOT SPECIFICALLY CLASSIFIED, ARTICLES WHICH HAVE BEEN COMBINED OR ATTACHED TO EACH OTHER WILL BE CHARGED AT THE RATING FOR THE HIGHEST CLASSED ARTICLE OF THE COMBINATION, AND ON SHIPMENTS SUBJECT TO CL RATING THE MINIMUM WEIGHT WILL BE THE HIGHEST MINIMUM WEIGHT PROVIDED FOR SUCH HIGHEST RATING; WHERE THE CL RATINGS ARE THE SAME, THE MINIMUM WEIGHT WILL BE THE HIGHEST FOR ANY ARTICLE IN THE COMBINATION.'

IN NUMEROUS CASES THE INTERSTATE COMMERCE COMMISSION HAS STATED THAT RULE 18 DOES NOT APPLY TO ARTICLES THAT HAVE THE CHARACTERISTICS OF ANY ENTITY; ITS APPLICATION IS TO COMBINATIONS OF ARTICLES THAT ARE SUITABLE OR ADAPTABLE TO SEPARATE USES. STEWART AND STEVENSON SERVICES, INC. V. BALTIMORE AND OHIO R.CO., 276 I.C.C. 156 (1949).

THE TRUCK-MOUNTED DEMPSTER DUMPSTER HAS THE CHARACTERISTICS OF A PIECE OF SELF-PROPELLED MACHINERY. THE CONTRACTOR'S STANDARD MAINTENANCE MANUAL SHOWS CLEARLY THAT THE PARTS OF THE COMBINATION--- CHASSIS AND HYDRAULIC HOIST--- WHILE POSSIBLY RETAINING THEIR SEPARATE IDENTITIES, NEVERTHELESS, ARE INTEGRAL PARTS OF A SELF-PROPELLED HYDRAULIC HOIST. THE HOIST IS MOUNTED ON BUT CANNOT BE USED WITHOUT THE CHASSIS; IT IS OPERATED BY A POWER TAKE-OFF INSTALLED IN THE CHASSIS; AND THE OPERATION OF THE ENTIRE UNIT IS CONTROLLED BY LEVERS LOCATED IN THE CAB OF THE CHASSIS. IT IS ALSO IMPORTANT TO NOTE THAT THE STANDARD TRUCK CHASSIS IS ALTERED BY THE HOIST MANUFACTURER BY THE INSTALLATION OF THE POWER TAKE-OFF WHICH REQUIRES AND HAS A SPECIAL DRIVE SHAFT. ALL THIS EQUIPMENT CLEARLY SHOWS THAT MUCH MORE IS REQUIRED TO MAKE THIS MACHINE OPERATIVE THAN MERELY SETTING THE HOIST ASSEMBLY ON A CHASSIS. CF. BRYANT PAVING CO. V. CHICAGO, B. AND Q.R.CO., 153 I.C.C. 799 (1929).

THE CONTRACTOR'S MAINTENANCE MANUAL ALSO SHOWS THAT THE TWO PARTS OF THE TRUCK-MOUNTED DEMPSTER DUMPSTER ARE NOT SUITABLE OR ADAPTABLE TO SEPARATE USES. THE HYDRAULIC HOIST COULD NOT BE CONVENIENTLY DISMOUNTED FROM THE CHASSIS; IF DISMOUNTED IT COULD NOT BE INDEPENDENTLY OPERATED; AND THE CHASSIS COULD NOT BE USED AS A SERVICE TRUCK WITHOUT SOME ALTERATIONS INCLUDING REMOVAL OF THE POWER TAKE-OFF EQUIPMENT. SEE HARRISON CONSTRUCTION CO. V. CINCINNATI, N.O. AND T.P.RY.CO., 266 I.C.C. 313 (1946).

DECISIONS OF THE INTERSTATE COMMERCE COMMISSION INTERPRETING RULE 18 SHOW THAT THE RULE APPLIES ONLY TO ARTICLES WHICH THOUGH PHYSICALLY COMBINED RETAIN THEIR SEPARATE FUNCTIONS AND IDENTITIES. WHILE IN THIS CASE IT MAY BE POSSIBLE TO VISUALLY IDENTIFY THE SEPARATE PARTS OF THE TRUCK-MOUNTED UNIT, THE RECORD ESTABLISHES THAT THE SEPARATE FUNCTIONS OF THE HYDRAULIC HOIST AND THE TRUCK CHASSIS HAVE BEEN MERGED INTO A SINGLE ARTICLE, A SELF -PROPELLED PIECE OF MACHINERY, AND THAT THE SINGLE ARTICLE IS RATABLE AS MACHINERY, NOIBN, RATHER THAN AS A COMBINATION ARTICLE. A SERIOUS ANALYSIS OF THIS ARTICLE AND ITS FUNCTIONS SUPPORTS THE CONCLUSION THAT THE ARTICLE IS CLOSELY RELATED IN DESIGN AND FUNCTION TO WRECKER TRUCKS, RATED PER ITEM 28382 OF THE CLASSIFICATION AT CLASS 45 FOR WRECKERS WEIGHING OVER 10,000 POUNDS.

OUR SETTLEMENT OF AUGUST 7, 1962, IS NOT SHOWN TO BE IN ERROR OTHERWISE, AND, ACCORDINGLY, IT IS SUSTAINED.