B-180730, AUG 5, 1974, 54 COMP GEN 89

B-180730: Aug 5, 1974

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ETC. - TRANSPORTATION CLAIMS EVEN THOUGH REQUEST FOR REVERSAL OF AUDIT ACTION IS ADDRESSED TO TRANSPORTATION AND CLAIMS DIVISION. IS RIPE FOR REVIEW BY COMPTROLLER GENERAL WHERE RECORD SHOWS DIVISION ADEQUATELY RESPONDED TO ALL OF CLAIMANT'S GROUNDS FOR REVERSAL. TRANSPORTATION - MOTOR CARRIER SHIPMENTS - CLAIMS SETTLEMENT - NATIONAL CLASSIFICATION BOARD RULING - EFFECT ON GAO CONSIDERATION IN EXERCISE OF STATUTORY DUTY TO SETTLE CLAIMS OF MOTOR COMMON CARRIERS GENERAL ACCOUNTING OFFICE IS NOT BOUND BY RULINGS OF NATIONAL CLASSIFICATION BOARD. SINCE BOARD IN EFFECT IS MERE AGENT OF CLAIMANT MOTOR CARRIER. IS SUBMITTED FOR CONSIDERATION BY THE COMPTROLLER GENERAL. ON THE GOVERNMENT BILLS OF LADING THE PROPERTY IS DESCRIBED AS AERIAL DELIVERY PLATFORMS.

B-180730, AUG 5, 1974, 54 COMP GEN 89

GENERAL ACCOUNTING OFFICE - SETTLEMENTS - REOPENING, REVIEW, ETC. - TRANSPORTATION CLAIMS EVEN THOUGH REQUEST FOR REVERSAL OF AUDIT ACTION IS ADDRESSED TO TRANSPORTATION AND CLAIMS DIVISION, SETTLEMENT ACTION, DISALLOWING CLAIMS, IS RIPE FOR REVIEW BY COMPTROLLER GENERAL WHERE RECORD SHOWS DIVISION ADEQUATELY RESPONDED TO ALL OF CLAIMANT'S GROUNDS FOR REVERSAL. TRANSPORTATION - MOTOR CARRIER SHIPMENTS - CLAIMS SETTLEMENT - NATIONAL CLASSIFICATION BOARD RULING - EFFECT ON GAO CONSIDERATION IN EXERCISE OF STATUTORY DUTY TO SETTLE CLAIMS OF MOTOR COMMON CARRIERS GENERAL ACCOUNTING OFFICE IS NOT BOUND BY RULINGS OF NATIONAL CLASSIFICATION BOARD, SINCE BOARD IN EFFECT IS MERE AGENT OF CLAIMANT MOTOR CARRIER.

IN THE MATTER OF MAISLIN TRANSPORT LTD., AUGUST 5, 1974:

A PROTEST OF SETTLEMENT ACTION, ADDRESSED TO OUR TRANSPORTATION AND CLAIMS DIVISION BY MAISLIN TRANSPORT LTD., IS SUBMITTED FOR CONSIDERATION BY THE COMPTROLLER GENERAL. THE DIVISION DISALLOWED THE CARRIER'S CLAIMS FOR ADDITIONAL FREIGHT CHARGES IN CONNECTION WITH THE TRANSPORTATION OF NINE SHIPMENTS FROM BROOKS AND PERKINS, INC., CADILLAC, MICHIGAN, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, DURING 1969. ON THE GOVERNMENT BILLS OF LADING THE PROPERTY IS DESCRIBED AS AERIAL DELIVERY PLATFORMS, ITEM 146510.

THE FREIGHT CHARGES, WHICH WERE PAID DURING 1969, WERE BASED ON THE CLASS 45 TRUCKLOAD RATING NAMED IN ITEM 146510 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION (NMFC). ITEM 146510 PROVIDES RATINGS ON AERIAL DELIVERY PLATFORMS.

THE CHARGES SHOWN ON THE CARRIER'S SUPPLEMENTAL BILLS REFLECT THE CLASS 125 TRUCKLOAD RATING NAMED IN ITEM 150370 OF THE NMFC. THE ADDITIONAL CHARGES CLAIMED OF $13,489.74 RESULT FROM A LETTER, DATED DECEMBER 1, 1970, OF THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, DETROIT, WHICH IN TURN WAS THE RESULT OF A DETERMINATION OF THE NATIONAL CLASSIFICATION BOARD THAT THE ARTICLES SHIPPED WERE PALLETS FOR LIFT TRUCKS COVERED BY ITEM 150370.

A NEW ITEM, ITEM 157520, EFFECTIVE MARCH 2, 1973, WAS PUBLISHED IN SUPPLEMENT 4 TO NMFC A-13 PROVIDING A SPECIFIC COMMODITY DESCRIPTION OF THE ARTICLES HERE INVOLVED. THIS ITEM, WHICH, OF COURSE, IS FOR PROSPECTIVE APPLICATION ONLY, INTRODUCES TO THE NMFC A COMMODITY DESCRIPTION FOR "PLATFORMS, AIRCRAFT CARGO SHIPPING AND HANDLING, NOI, ALUMINUM, WITH SOLID WOOD CORE, WITH TIE DOWN RINGS, SEE NOTE, ITEM 157522, IN CRATES OR IN BUNDLES." THE NOTE PROVIDES THAT ITEM 157520

APPLIES ONLY ON PLATFORMS DESIGNED TO BE USED IN CONJUNCTION WITH AIRCRAFT AND VEHICLES EQUIPPED WITH SURFACE CONVEYOR CASTERS OR ROLLERS.

THE DIVISION'S ACTION DISALLOWING THE CLAIMS WAS BASED ON THE PREMISE THAT THE NMFC FAILED TO PROVIDE A SPECIFIC OR GENERAL DESCRIPTION FOR THE AIRCRAFT CARGO PLATFORMS THAT ACTUALLY MOVED. ESTABLISHMENT OF THE NEW ITEM BY THE NATIONAL CLASSIFICATION BOARD, SUBSEQUENT TO THE DATES ON WHICH THE TRANSPORTATION SERVICES WERE RENDERED, SUPPORTS THE VALIDITY OF THE DIVISION'S BASIC PREMISE. INVOKING THE RULE OF ANALOGY, ITEM 421 OF THE NMFC, THE DIVISION CONCLUDED THAT THE MOST ANALOGOUS DESCRIPTION OF THE AIRCRAFT CARGO PLATFORMS WAS THE DESCRIPTION FOR AERIAL DELIVERY PLATFORMS IN ITEM 146510, RATHER THAN THE DESCRIPTION OF PALLETS FOR LIFT TRUCKS IN ITEM 150370.

THE DIVISION REPORTS THAT IT HAS TAKEN FINAL ACTION ON THE CLAIMS. THE RECORD SHOWS THAT IT HAS RESPONDED TWICE TO REQUESTS FOR REVERSAL OF ITS ACTION AND WE ARE SATISFIED THAT THE PREREQUISITES OF 4 C.F.R. 55.2, 5 GAO MANUAL 6060.20, HAVE BEEN MET IN SUBSTANCE AND THAT THE MATTER IS RIPE FOR REVIEW BY THE COMPTROLLER GENERAL DESPITE THE FACT THAT THE REQUEST WAS ADDRESSED TO THE SPECIAL REPORTS BRANCH OF THE DIVISION.

MAISLIN BASES ITS CLAIMS UPON AN OPINION OF THE NATIONAL CLASSIFICATION BOARD (OF THE MOTOR CARRIER INDUSTRY) SUPPORTING MAISLIN'S POSITION. AND MAISLIN RAISES THE ISSUE OF WHETHER THE GENERAL ACCOUNTING OFFICE MUST BE GOVERNED BY THE DETERMINATIONS OF THE NATIONAL CLASSIFICATION BOARD. NEED NOT EXPRESS AN OPINION AS TO THE VALIDITY OF MAISLIN'S CONTENTION THAT, AS A MOTOR COMMON CARRIER SUBJECT TO REGULATION OF THE INTERSTATE COMMERCE COMMISSION, IT MUST ABIDE BY THE RULES AND REGULATIONS OF THE NATIONAL CLASSIFICATION BOARD. IT IS SUFFICIENT THAT WE POINT OUT A DISTINCTION BETWEEN WHATEVER THE CARRIER MAY BELIEVE IS ITS OBLIGATIONS ON THE ONE HAND AND, ON THE OTHER HAND, THE STATUTORY DUTIES OF THE GENERAL ACCOUNTING OFFICE TO SETTLE TRANSPORTATION CLAIMS UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 20, 24, 31 U.S.C. 71, AND SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, ACT OF SEPTEMBER 18, 1940, CH. 722, 54 STAT. 898, 955, 49 U.S.C. 66.

PRECEDENT OF THIS OFFICE SHOWS THAT OUR DETERMINATIONS OF THE APPLICABLE CLASSIFICATION DESCRIPTION AND RATING HAVE AGREED AT TIMES WITH THOSE OF THE NATIONAL CLASSIFICATION BOARD. IN SOME OTHER CASES THEY HAVE DISAGREED. WHAT IS CLEAR IS THAT THIS OFFICE, WHILE CONSIDERING DETERMINATIONS OF THE BOARD, HAS PROCEEDED TO MAKE ITS DETERMINATIONS INDEPENDENTLY. THE EXTENT OF DEFERENCE IS SOMEWHAT ANALOGOUS TO THE CONSIDERATION ALLOWED INFORMAL OPINIONS GIVEN BY OFFICIALS OR EMPLOYEES OF THE INTERSTATE COMMERCE COMMISSION. WHILE SUCH RULINGS ARE ENTITLED TO WEIGHT AND CONSIDERATION, THEY ARE NOT CONCLUSIVE OR BINDING.

THIS OFFICE HAS THE DUTY TO SETTLE AND ADJUST CLAIMS INVOLVING THE UNITED STATES. 43 COMP. GEN. 772, 774 (1964). CLAIMANTS HAVE THE BURDEN OF PROVING THEIR CLAIMS TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. SEE 44 COMP. GEN. 799, 801 (1965). REQUESTS BY CLAIMANTS FOR AMOUNTS NOT INCLUDED IN ORIGINAL BILLING ARE CLAIMS WITHIN THE MEANING OF 4 C.F.R. 54.2.

TO PROVE MAISLIN'S CLAIMS, THE CARRIER WOULD HAVE THIS OFFICE RECOGNIZE A RULING OF THE NATIONAL CLASSIFICATION BOARD AS IN THE NATURE OF A QUASI- JUDICIAL DETERMINATION, AS THOUGH THE BOARD EXISTED THROUGH STATUTORY CREATION. IN VIEW OF THE REAL NATURE OF THE BOARD, SUCH RECOGNITION WOULD RESULT IN THE ABROGATION OF OUR STATUTORY DUTY TO SETTLE CLAIMS.

THE BOARD WAS IN FACT CREATED BY THE JOINT ACTION OF MOTOR CARRIERS, WHICH EXISTENCE IS GIVEN LEGAL SANCTION BY THE INTERSTATE COMMERCE COMMISSION UNDER SECTION 5A OF THE INTERSTATE COMMERCE ACT. ACT OF JUNE 17, 1948, CH. 491, 62 STAT. 472, 49 U.S.C. 5B. THE COMMISSION HAS OBSERVED THAT THE NATIONAL TRAFFIC COMMITTEE (NOW NATIONAL CLASSIFICATION COMMITTEE), COMPOSED OF REPRESENTATIVES OF MOTOR CARRIERS, CAN OVERRULE ACTION OF THE BOARD. CEREAL FOOD PREPARATIONS - CLASSIFICATION RATINGS, 47 M.C.C. 9, 12, FOOTNOTE 2 (1947). THE SAME BASIC ARRANGEMENT, PRESERVED IN A SECTION 5A AGREEMENT, WAS APPROVED IN 1956. NATIONAL CLASSIFICATION COMMITTEE - AGREEMENT, 299 I.C.C. 519 (1956). IT IS CLEAR THAT EACH CARRIER, PARTY TO THE AGREEMENT, MAY APPEAL DISPOSITIONS OF THE BOARD TO THE COMMITTEE. EACH ALSO RETAINS THE RIGHT TO TAKE INDEPENDENT ACTION. UNDER THESE CIRCUMSTANCES IT APPEARS THAT THE BOARD IN ESSENCE IS AN AGENT OF THE CARRIERS, THUS A DETERMINATION OF COMMODITY CLASSIFICATION BY THE BOARD IS, IN EFFECT, A DETERMINATION BY THE CARRIERS THEMSELVES. IN THIS CASE WE VIEW THE RULING OF THE BOARD AS AN OPINION OF THE CLAIMANT.

WE HAVE GIVEN CONSIDERATION TO THE BOARD'S RULING HERE AND FOR THE REASONS CONTAINED IN B-177223, JANUARY 10, 1974, ADDRESSED TO RINGSBY UNITED, INVOLVING THE SAME FACTUAL SITUATION, WE DID NOT ARRIVE AT THE SAME CONCLUSION AS THE BOARD. FOR THESE REASONS, THE DISALLOWANCE OF MAISLIN'S CLAIMS IS SUSTAINED.