B-151850, OCT. 18, 1963

B-151850, OCT. 18, 1963

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1963, FILE 5 GB-26278, REQUESTING RECONSIDERATION OF OUR DECISION OF JULY 22, 1963, B-151850, WHICH SUSTAINED THE DISALLOWANCE BY OUR SETTLEMENT CERTIFICATE OF MAY 26, 1961, OF YOUR CLAIM ON SUPPLEMENTAL BILL NO. 26278 FOR ADDITIONAL TRANSPORTATION CHARGES OF $100. THE CLAIM IS IN CONNECTION WITH A SHIPMENT OF TRAINING MATERIAL TRANSPORTED FOR THE ATOMIC ENERGY COMMISSION WHICH MOVED IN PASSENGER TRAIN SERVICE.

IN PARAGRAPHS 2, 3 AND 4 OF YOUR REQUEST FOR RECONSIDERATION YOU ASK WHY A COMPLETE REPLY WAS NOT MADE TO YOUR LETTER OF MAY 21, 1963; WHY CERTAIN INFORMATION YOU FURNISHED WAS NOT CONSIDERED; AND WHY IT WAS NECESSARY FOR US TO REPEAT INFORMATION THAT OUR TRANSPORTATION DIVISION HAD PREVIOUSLY FURNISHED. IN REPLY TO THESE QUESTIONS, WE CAN ONLY ANSWER THAT OUR DECISION OF JULY 22, 1963, WAS, IN OUR OPINION, A FULL AND COMPLETE REPLY WHICH TOOK INTO CONSIDERATION ALL INFORMATION FURNISHED BY YOU. ANY INFORMATION THAT WE REPEATED, WHICH YOU CONTEND OUR TRANSPORTATION DIVISION HAD PREVIOUSLY FURNISHED YOU, WAS GIVEN BECAUSE IT WAS NECESSARY FOR A FULL DISCUSSION OF OUR POSITION, AND BECAUSE WE WERE IN AGREEMENT WITH THE POSITION TAKEN BY OUR TRANSPORTATION DIVISION.

YOU ASK IN PARAGRAPH 6 OF YOUR LETTER:

"WHY WOULD YOUR OFFICE MAKE A STATEMENT THAT SECTION 25 OF AGREEMENT 29, PARAGRAPHS D, E, F, G, AND H, ARE APPLICABLE AND NOT THOSE URGED BY US, WHICH APPEAR UNDER HEADING "FREIGHT SERVICE OR MIXED FREIGHT-PASSENGER SERVICE.'"

SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT NO. 29 COVERS THREE TYPES OF SERVICE, THAT IS, (1) FREIGHT SERVICE, (2) PASSENGER TRAIN SERVICE, AND (3) MIXED PASSENGER-FREIGHT TRAIN SERVICE (SERVICE WHICH INCLUDES BOTH FREIGHT AND PASSENGER CARS). WE VIEW THE INVOLVED MOVEMENT AS BEING ONE OF PASSENGER TRAIN SERVICE, AND CONSEQUENTLY ONLY THOSE PROVISIONS (PARAGRAPHS D, E, F, G AND H) PERTAINING THERETO ARE FOR CONSIDERATION, AND NOT THOSE SHOWN FOR OTHER TYPES OF SERVICE NOT HERE INVOLVED.

IN PARAGRAPH 7 OF YOUR LETTER YOU ASK FOR AN INTERPRETATION OF PARAGRAPHS A, B AND C OF SECTION 12 OF DEPARTMENT OF THE ARMY SPECIAL REGULATIONS SR 55-105-5, OF MARCH 12, 1953, AND EXPRESS YOUR OPINION THAT OUR INTERPRETATION OF SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT NO. 29 IS AT VARIANCE WITH THE REGULATIONS. SPECIAL REGULATIONS SR 55-105-5 WERE ISSUED FOR THE USE AND GUIDANCE OF TRANSPORTATION OFFICERS AND OTHER GOVERNMENTAL PERSONNEL AND CANNOT MODIFY OR CHANGE TRANSPORTATION AGREEMENTS OR TARIFFS. HOWEVER, AS A MATTER OF INFORMATION, THESE REGULATIONS WERE SUPERSEDED BY ARMY REGULATIONS AR 55-21, OF JUNE 6, 1956, BUT THERE APPEARS NO SUBSTANTIAL DIFFERENCE IN THE REQUIREMENTS AS BROUGHT FORWARD. MOREOVER, IT DOES NOT SEEM THAT THESE IMPLEMENTING REGULATIONS ARE IN CONFLICT WITH OUR INTERPRETATION OF SECTION 25 OF JMPA NO. 29. SECTION 12/A) OF THE SPECIAL REGULATIONS MERELY STATES THAT WHEN MILITARY IMPEDIMENTA IS TRANSPORTED IN FREIGHT SERVICE OR IN MIXED FREIGHT AND PASSENGER SERVICE THAT THE APPLICATION OF THE CONSOLIDATED FREIGHT CLASSIFICATION IS CONFINED TO SHIPMENTS IN THESE SERVICES. SECTIONS 12 (B) AND 12 (C) PROVIDE THAT WHEN MILITARY IMPEDIMENTA MOVES IN PASSENGER TRAIN SERVICE, AS DISTINGUISHED FROM FREIGHT OR MIXED FREIGHT-PASSENGER TRAIN SERVICE, THE REVENUE WILL BE TREATED AS PASSENGER REVENUE INSTEAD OF FREIGHT REVENUE, THE CHARGES BEING THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE, ALTHOUGH ACTUAL PASSENGER ROUTES MAY BE INVOLVED. WE DO NOT SEE IN WHAT RESPECT OUR INTERPRETATION OF SECTION 25 OF JMPA NO. 29 VARIES FROM OR IS IN CONFLICT WITH SPECIAL REGULATIONS SR 55-105-5 OR ARMY REGULATIONS AR 55 21.

BY PARAGRAPH 8 OF YOUR LETTER YOU ASK:

"WHY WOULD YOUR OFFICE MAKE A STATEMENT THAT JOINT MILITARY AGREEMENT NO. 29 IS ALSO IN THE NATURE OF A SPECIAL TARIFF COVERING SPECIAL TRANSPORTATION SERVICE FOR THE GOVERNMENT, WHEN SECTION 25 IS THE ONLY AGREEMENT COVERING MILITARY IMPEDIMENTA AND DOES NOT PROVIDE FOR SPECIFIC RATES OR SPECIFIC ROUTES?

WE INDICATED THAT JMPA NO. 29 IS A QUOTATION UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT AND IS ALSO IN THE NATURE OF A SPECIAL TARIFF COVERING SPECIFIED TRANSPORTATION SERVICES FOR THE GOVERNMENT. ALTHOUGH SECTION 25 OF QUOTATION 29 DOES NOT PROVIDE SPECIFIC RATES, NEVERTHELESS, IT DOES PROVIDE THE "BASIS FOR CHARGES" FOR MOVEMENTS OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE IN THAT THE CHARGE WILL BE:

"THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS.'

THUS, QUOTATION 29, ALTHOUGH NOT PROVIDING SPECIFIC RATES, DID STATE THAT APPLICABLE CURRENT FREIGHT TARIFFS WOULD PROVIDE THE RATES AND THAT SUCH RATES ONCE DETERMINED WITHOUT REFERENCE TO THE ROUTE BETWEEN THE STOPOVER POINTS WOULD THEN APPLY OVER THE ACTUAL PASSENGER ROUTE. IT IS NOT OUR UNDERSTANDING THAT THERE IS ANY MATERIAL DISTINCTION UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT (49 U.S.C. 22) BETWEEN A "REGULAR" SECTION 22 QUOTATION OR AGREEMENT AND A SECTION 22 "RATE" QUOTATION, SINCE THE EFFECT OF BOTH, REGARDLESS OF NOMENCLATURE IS TO ALLOW GOVERNMENT TRAFFIC TO MOVE AT FREE OR REDUCED CHARGES DIFFERENT FROM THOSE FOR COMMERCIAL OR PRIVATE SHIPMENTS.

IN REFERENCE TO SOUTHWESTERN FREIGHT BUREAU SECTION 22 QUOTATION NO. 579, IT SHOULD BE POINTED OUT THAT THE QUOTATION IS AN OFFER TO THE ATOMIC ENERGY COMMISSION, ISSUED NOVEMBER 2, 1960, AND SHOWN TO BE RETROACTIVELY EFFECTIVE AUGUST 1, 1960, TO TRANSPORT ANY-QUANTITY LOTS OF TRAINING MATERIALS IN GOVERNMENT-OWNED CARS IN FREIGHT OR PASSENGER TRAIN SERVICE BETWEEN ROCKY FLATS, COLORADO, AND ST. FRANCIS, TEXAS, VIA THE D AND RGW TO DENVER; C AND S TO SIXELA, NEW MEXICO; FW AND D TO AMARILLO, TEXAS; AND THE P AND SF BEYOND AT A RATE OF $3.01 PER HUNDRED POUNDS, SUBJECT TO TARIFF OF INCREASED RATES AND CHARGES NO. X 223. THE SUBJECT SHIPMENT MOVED AUGUST 31, 1957, APPROXIMATELY THREE YEARS BEFORE THE QUOTATION NO. 579 WAS EFFECTIVE; CONSEQUENTLY, SWFB QUOTATION NO. 579 HAS NO RELEVANCY TO THE SHIPMENT AND IS NOT APPLICABLE IN THE COMPUTATION OF CHARGES. SEE PARAGRAPH 9 OF YOUR LETTER.

BY PARAGRAPH 10 OF YOUR LETTER YOU ASK WHERE JMPA NO. 29 PROVIDES THAT IT IS NECESSARY TO DETERMINE WHAT THE NORMAL FREIGHT CHARGES WOULD BE ON A LIKE SHIPMENT OF MILITARY IMPEDIMENTA IN FREIGHT SERVICE AND THAT SUCH CHARGES THEN WILL BE APPLIED OVER THE PASSENGER ROUTE. AS WE SHOWED IN OUR DECISION OF JULY 22, 1963, PARAGRAPH (E) OF SECTION 25 OF JMPA NO. 29 PROVIDES:

"* * * THE TRANSPORTATION CHARGES * * * WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS * * *.'

SETTLEMENT CERTIFICATE OF MAY 26, 1961, WAS ISSUED IN CONNECTION WITH YOUR CLAIM FOR $100 ADDITIONAL TRANSPORTATION CHARGES ON BILL NO. SUPP. 26228. SEE PARAGRAPH 11 OF YOUR LETTER.

IN PARAGRAPH 12 OF YOUR LETTER YOU REFER TO BILL OF LADING AT 149898 UNDER WHICH THE GUARDS WHO TRAVELED WITH THE SHIPMENT OF MILITARY IMPEDIMENTA WERE TRANSPORTED AND ASK:

"WILL YOU PLEASE EXPLAIN WHY YOUR OFFICE STILL INSISTS IN APPLYING EQUALIZATION WHEN SAME DOES NOT APPLY FOR THE TRANSPORTATION OF THE GUARDS.'

THIS QUESTION DOES NOT APPEAR RELEVANT TO THE DISPOSITION OF YOUR CLAIM ON BILL OF LADING AT-149899 FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA. HOWEVER, THE REQUIREMENTS OF THE ATOMIC ENERGY COMMISSION AS TO ITS SHIPMENTS OF TRAINING MATERIALS APPARENTLY WERE SIMILAR TO THOSE OF THE MILITARY SERVICES IN SHIPPING MILITARY IMPEDIMENTA, AND THE SAME MOTIVATION OF THE CARRIERS AS TO ATOMIC ENERGY COMMISSION TRAFFIC, PRESUMABLY GAVE RISE TO THE SECTION 22 QUOTATION OF JULY 1, 1951. THIS QUOTATION PERMITTED THE SHIPMENT OF TRAINING MATERIALS IN GOVERNMENT-OWNED CARS UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS APPLIED TO THE TRANSPORTATION OF MILITARY IMPEDIMENTA. THUS, THE BASIS OF CHARGES SET FORTH IN SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT NO. 29 APPLIES EQUALLY IN COMPUTING CHARGES FOR THE TRANSPORTATION OF TRAINING MATERIALS FOR THE ATOMIC ENERGY COMMISSION. IN THIS CONNECTION, SEE ALSO EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION NO. 40 AND LETTER OF JANUARY 13, 1958, FILE A-157.

IN DETERMINING THE APPLICABLE CHARGES FOR THE SUBJECT SHIPMENT OUR OFFICE HAS CAREFULLY CONSIDERED ALL PERTINENT AND APPLICABLE PUBLICATIONS, DOCUMENTS, TARIFFS AND SPECIFIC AGREEMENTS IN THEIR ENTIRETY IN ORDER THAT THE LAWFUL CHARGES APPLICABLE ON GOVERNMENT TRAFFIC ARE PAID TO THE CARRIERS. SEE 49 U.S.C. 6 (7) AND 22. SECTION 7 OF JMPA NO. 29 PROVIDES FOR EQUALIZATION OF NET FARES AND CHARGES AND APPARENTLY DOES NOT CONCERN FREIGHT ROUTING ON THE SUBJECT SHIPMENT. OUR BASIS OF CHARGES DOES NOT RELY UPON SECTION 7 FOR ITS EFFICACY. SEE PARAGRAPH 13 OF YOUR LETTER.

AS TO PARAGRAPH 15 OF YOUR LETTER, IT APPEARS THAT THE WORDS UNDERSCORED HAVE BEEN TAKEN OUT OF CONTEXT, PRESUMABLY, FROM JMPA QUOTATION NO. 29 AND THE LETTER OF JULY 1, 1951, AND, STANDING ALONE WITHOUT SOME FRAME OF REFERENCE, WE CANNOT HAZARD DEFINING THE EXPRESSION.

WE HAVE ATTEMPTED TO GIVE SPECIFIC ANSWERS TO ALL QUESTIONS WHICH YOU HAVE RAISED IN YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION OF JULY 22, 1963. MOREOVER, THAT DECISION WAS BASED UPON A FULL AND COMPLETE ANALYSIS OF THE RECORD, AND FULL CONSIDERATION WAS GIVEN TO THE POINTS RAISED IN YOUR PREVIOUS REQUEST OF MAY 21, 1963, FOR REVIEW OF THE DISALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, AND SINCE YOU HAVE FURNISHED NO COMPETENT EVIDENCE NOT PREVIOUSLY CONSIDERED, OUR DECISION OF JULY 22, 1963, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM, APPEARS PROPER AND IS REAFFIRMED. SEE ALSO OUR DECISIONS OF AUGUST 5 AND OCTOBER 2, 1963, B-149821, ADDRESSED TO YOUR COMPANY.