B-159564, JUN. 29, 1967

B-159564, JUN. 29, 1967

TO NAVAJO FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1967, REQUESTING RECONSIDERATION OF OUR DECISION OF MARCH 8, 1967, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $157.60, THE BALANCE OF TRANSPORTATION CHARGES ALLEGEDLY DUE ON A MIXED TRUCKLOAD SHIPMENT OF GOVERNMENT PROPERTY ACCORDED EXCLUSIVE USE OF VEHICLE SERVICE.

YOU ASK THAT THE FILE BE REVIEWED BY OUR OFFICE OF THE GENERAL COUNSEL AND INDICATE A BELIEF THAT THE DECISION OF JUNE 9, 1967, B 159564, WAS WRITTEN BY OUR TRANSPORTATION DIVISION AND THAT YOU ARE ENTITLED TO AN ACTUAL REVIEW OF THE TRANSPORTATION DIVISION'SDENIAL OF YOUR CLAIM BY OUR OFFICE OF THE GENERAL COUNSEL.

ON MATTERS COMING BEFORE THE GENERAL ACCOUNTING OFFICE FOR OFFICIAL DETERMINATION, A DECISION OF THE COMPTROLLER GENERAL OR OF THE ASSISTANT COMPTROLLER GENERAL REPRESENTS THE OFFICIAL ACTION OF THE GENERAL ACCOUNTING OFFICE AND IS THE CONTROLLING ACTION OF THIS OFFICE. SEE 31 COMP. GEN. 596 (1952). THIS IS TRUE WHETHER THE MATTER ORIGINATES IN THE TRANSPORTATION DIVISION, IN THE OFFICE OF THE GENERAL COUNSEL OR IN ANY OTHER COMPONENT OF THE GENERAL ACCOUNTING OFFICE. HOWEVER, YOU MAY BE ADVISED THAT THE DECISION OF MARCH 8, 1967, WAS PREPARED IN OUR OFFICE OF GENERAL COUNSEL AND WAS THOROUGHLY CONSIDERED THERE BEFORE ITS ISSUANCE.

YOU OBJECT TO OUR CITING THE CASES OF GUS BLASS CO. V. POWELL BROTHERS TRUCK LINE, 53 M.C.C. 603, 605 (1951) AND CURTIS LIGHTING, INC. V. MID- STATES FREIGHT LINES, INC., 303 I.C.C. 576 (1958), CONTENDING THAT THEY ARE NOT APPROPRIATE SINCE WE ARE CONCERNED WITH THE CHARGES ON AN EXCLUSIVE USE SHIPMENT AND THOSE CASES HELD THAT EXCLUSIVE USE CHARGES WERE NOT, FOR APPLICATION ALTHOUGH EXCLUSIVE USE SERVICE WAS REQUESTED. THE GUS BLASS CASE AND THE CURTIS LIGHTING CASE WERE NOT CITED AS AUTHORITY FOR THE MANNER OF COMPUTING CHARGES ON THE SUBJECT SHIPMENT BUT WERE CITED TO SHOW THAT THE SHIPMENT WAS A MIXED TRUCKLOAD SHIPMENT OF TWO COMMODITIES ACCORDED EXCLUSIVE USE OF VEHICLE SERVICE ON WHICH A TRUCKLOAD CHARGES BASIS WOULD BE APPLICABLE.

YOU ALSO CONTEND THAT BECAUSE THE TARIFF ITEMS CONSIDERED IN THE INTERSTATE COMMERCE COMMISSION'S INFORMAL OPINION OF JANUARY 15, 1964, FILE 500-96002, AND IN OUR LETTER OF AUGUST 11, 1965, B-156114, READ SUBSTANTIALLY THE SAME AS THE EXCLUSIVE USE PROVISION IN ITEM 940 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANS-CONTINENTAL TERRITORIAL DIRECTORY 20-E, MF-I.C.C. 146, HERE INVOLVED, THE CHARGES SHOULD BE COMPUTED IN THE SAME MANNER.

ALTHOUGH THE EXCLUSIVE USE TARIFF ITEMS READ SIMILARLY, THE FACTS SURROUNDING THE SHIPMENTS ARE DIFFERENT. AMONG OTHER FACTORS, THE SHIPMENTS CONSIDERED IN B-156114 AND IN THE COMMISSION'S INFORMAL OPINION CONSISTED OF A SINGLE COMMODITY FOR WHICH THE LESS TRUCKLOAD AND TRUCKLOAD RATINGS WERE THE SAME, WHEREAS HERE, THE INVOLVED SHIPMENT CONSISTED OF A MIXED TRUCKLOAD OF TWO COMMODITIES ACCORDED EXCLUSIVE USE SERVICE, WITH EACH ARTICLE HAVING DIFFERENT RATINGS BOTH AS TO LESS TRUCKLOAD AND TRUCKLOAD SHIPMENTS.

NOWHERE IN ITEM 940 DOES IT STATE THAT THE CHARGES SHOULD BE COMPUTED AT THE HIGHEST TRUCKLOAD RATE AND THE HIGHEST TRUCKLOAD MINIMUM WEIGHT ON ANY ARTICLE IN THE MIXED TRUCKLOAD SHIPMENT AS YOU CONTEND. NOR HAVE YOU FURNISHED US YOUR AUTHORITY FOR SO COMPUTING THE CHARGES. HOWEVER, WE ASSUME THAT YOUR COMPUTATIONS ARE BASED UPON THE PROVISIONS OF RULE 130, TITLED "MIXED VOLUME OR TRUCKLOAD SHIPMENTS," OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-7, MF-I.C.C. 5, WHICH IN SECTION 1 PROVIDES FOR COMPUTATIONS BASED ON THE HIGHEST STRAIGHT VOLUME OR TRUCKLOAD RATE AND HIGHEST STRAIGHT VOLUME OR TRUCKLOAD MINIMUM WEIGHT APPLICABLE TO ANY ARTICLE IN THE SHIPMENT. WE AGREE THAT TO COMPUTE THE EXCLUSIVE USE CHARGES UNDER ITEM 940 RMMTB TARIFF 20-E ON THIS MIXED TRUCKLOAD SHIPMENT YOU HAVE TO USE THE PROVISIONS OF RULE 130 OF NMFC A-7, BUT WHERE YOU WOULD LIMIT THE USE OF RULE 130 TO SECTION 1, WE BELIEVE THAT ALL SECTIONS OF THE RULE SHOULD BE GIVEN EFFECT.

ACCORDINGLY, AND SINCE YOUR LETTER OF JUNE 9, 1967, CONTAINS NOTHING TO WARRANT A REVERSAL OR MODIFICATION OF OUR DECISION OF MARCH 8, 1967, IT IS AFFIRMED.