B-132462, JUL. 31, 1958

B-132462, JUL. 31, 1958

TO BROWN EXPRESS:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 1 AND 5, 1957, REQUESTING REVIEW OF OUR SETTLEMENT ACTION ON YOUR BILLS NOS. 2644-A AND 2717-A, DISALLOWING YOUR CLAIMS FOR ADDITIONAL CHARGES FOR THE TRANSPORTATION OF "AMMONIUM NITRATE, FERTILIZING COMPOUND (MANUFACTURED FERTILIZER)," ETC., FROM ETTER, TEXAS, TO MCGREGOR, TEXAS, IN THE EARLY PART OF 1956. BILL OF LADING AF-6264987, LISTED ON YOUR BILL NO. 2644-A, IS REPRESENTATIVE OF THE SHIPMENTS ON WHICH YOU HAVE FILED VARIOUS CLAIMS FOR ADDITIONAL CHARGES.

FOR THE TRANSPORTATION ON BILL OF LADING AF-6264987, IN JANUARY 1956, YOU CLAIMED AND WERE PAID ORIGINALLY, IN FEBRUARY 1956, CHARGES OF $181.06, COMPUTED ON THE BASIS OF A RATE OF 52 CENTS PER 100 POUNDS. YOUR SUPPLEMENTAL BILL NO. 2644-A, SUBMITTED IN JANUARY 1957, IS FOR ADDITIONAL CHARGES OF $226.33 ON THIS SHIPMENT, COMPUTED ON THE BASIS OF A FIFTH CLASS RATE OF $1.17 PER 100 POUNDS. YOU SUPPORTED YOUR REVISED BILLING WITH A COPY OF A LETTER DATED SEPTEMBER 14, 1956, ADDRESSED TO CURRY MOTOR FREIGHT LINES, INC., AMARILLO, TEXAS, BY JAMES E. BORDEAUX, A MEMBER OF THE NATIONAL CLASSIFICATION BOARD, WASHINGTON, D.C. THE LETTER IS TO THE EFFECT THAT SHIPMENTS DESCRIBED AS "AMMONIUM NITRATE, FERTILIZING COMPOUND (MANUFACTURED FERTILIZER)," FROM ETTER, TEXAS, TO MCGREGOR, TEXAS, IS CLASSED AS AN OXIDIZING MATERIAL SUBJECT TO REGULATIONS FOR THE TRANSPORTATION OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES. IT IS CONTENDED, THEREFORE, THAT SUCH SHIPMENTS CONSISTED OF "AMMONIUM NITRATE" AS NAMED IN ITEM NO. 21720 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION. THAT ITEM PRESCRIBED A FIFTH CLASS RATING.

AS INDICATED IN OUR SETTLEMENT OF JULY 17, 1957, DISALLOWING YOUR BILL NO. 2644-A, OUR INVESTIGATION DISCLOSED THAT THE COMMODITY SHIPPED ACTUALLY CONSISTED OF MANUFACTURED FERTILIZER (90 PERCENT OR MORE OF AMMONIUM NITRATE WITH NO ORGANIC COATING). THE CONSIGNEE OF THE SUBJECT SHIPMENT (PHILLIPS PETROLEUM COMPANY, MCGREGOR, TEXAS) ADVISED US THAT THE MINIMUM AMMONIUM NITRATE CONTENT OF THE MATERIAL RECEIVED WAS 99 PERCENT, WITH THE REMAINING ONE PERCENT CONSISTING OF MOISTURE AND NEGLIGIBLE TRACES OF ACID, CHLORIDES, SULFATES, AND OTHER, AND THAT THE MATERIAL IS THE SAME AS THAT FURNISHED TO THE TRADE AS FERTILIZER EXCEPT THAT THE CLAY COATING IS OMITTED.

PERTINENT TO THE DISPOSITION OF THIS MATTER IS THE CASE OF APACHE POWDER COMPANY V. ATCHISON, T. AND S.F. RY. CO., 299 I.C.C. 649, IN WHICH DIVISION 3 OF THE INTERSTATE COMMERCE COMMISSION STATES, AT PAGE 651, THAT

"* * * THERE IS NO IMPORTANT DIFFERENCE IN THE PHYSICAL PROPERTIES OF AMMONIUM NITRATE WHEN USED FOR AGRICULTURAL PURPOSES AND WHEN USED IN THE MANUFACTURE OF EXPLOSIVES, SO THAT THE TRANSPORTATION CHARACTERISTICS OF THE COMMODITY ARE SUBSTANTIALLY THE SAME REGARDLESS OF THE PURPOSE FOR WHICH IT IS USED. IN NUMEROUS CASES THE COMMISSION HAS CONDEMNED A DIFFERENCE IN RATES ON PARTICULAR COMMODITIES BASED UPON THE USE TO WHICH THE ARTICLES WERE PUT. * * *"

IN THE LIGHT OF THE FOREGOING INFORMATION WE FIND NO VALID REASON FOR ALLOWING CHARGES IN THIS AND SIMILAR INSTANCES HIGHER THAN THOSE WHICH YOU CLAIMED AND RECEIVED ORIGINALLY ON THE BASIS OF A 52-CENT COMMODITY RATE AVAILABLE UNDER THE PROVISIONS OF SOUTHWEST MOTOR FREIGHT BUREAU TARIFF NO. 25-E FOR APPLICATION ON "FERTILIZER, MANUFACTURED.' OUR SETTLEMENT PROPERLY GAVE EFFECT TO ..END :