B-143950, DEC. 8, 1960

B-143950, DEC. 8, 1960

TO CAROLINA FREIGHT CARRIERS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1960, IN WHICH YOU, IN EFFECT, REQUEST PERSONAL RECONSIDERATION BY THE COMPTROLLER GENERAL OF OUR DECISION OF NOVEMBER 25, 1960, B-143950, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM (058-672) FOR $198 SUBMITTED UNDER YOUR SUPPLEMENTAL BILL NO. 396C-57JW. THE BASIS FOR THE DISALLOWANCE WAS THE PRINCIPLE ESTABLISHED IN THE CASE OF CURTIS LIGHTING INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576.

APPARENTLY YOU QUESTION THE FINALITY OF THE DECISION OF NOVEMBER 25, 1960, BECAUSE IT WAS RENDERED BY THE ASSISTANT COMPTROLLER GENERAL WITHOUT ANY INDICATION THAT IT BORE THE COMPTROLLER GENERAL'S PERSONAL APPROVAL. AMONG THE DUTIES ASSIGNED TO THE ASSISTANT COMPTROLLER PURSUANT TO SECTION 302 OF THE BUDGET AND ACCOUNTING ACT, 1921, 42 STAT. 23, AS AMENDED, 31 U.S.C. 42, IS THAT OF RENDERING DECISIONS INVOLVING CHARGES FOR TRANSPORTATION SERVICES FURNISHED THE UNITED STATES. SUCH DECISIONS HAVE THE SAME EFFECT AND ARE AS BINDING AS THOUGH RENDERED BY THE COMPTROLLER GENERAL PERSONALLY. SEE 31 COMP. GEN. 596.

WE ALSO NOTE THAT YOU REFER TO A BULLETIN FROM THE AMERICAN TRUCKING ASSOCIATIONS WHICH YOU INDICATE SUGGESTS THAT PROTESTS TO ADVERSE ACTION ON CHARGES FOR EXCLUSIVE USE OF VEHICLE BE ADDRESSED TO THE COMPTROLLER GENERAL PERSONALLY. THE PROCEDURES OF OUR OFFICE RELATIVE TO TRANSPORTATION MATTERS CONTEMPLATE THAT PROTESTS TO NOTICES OF OVERCHARGES (GAO FORMS 1003) OR TO DEDUCTION ACTION TAKEN UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, WILL BE CONSIDERED BY THE TRANSPORTATION DIVISION OF THE GENERAL ACCOUNTING OFFICE AND THAT ONLY REQUESTS FOR REVIEW ADDRESSED TO THE COMPTROLLER GENERAL OF THE FINAL ACTION TAKEN BY THE TRANSPORTATION DIVISION UPON SETTLEMENT OF CLAIM FOR REFUND OF AMOUNT REFUNDED OR COLLECTED BY DEDUCTION WILL BE CONSIDERED BY THE COMPTROLLER GENERAL OR ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES. TITLE 4, CODE OF FEDERAL REGULATIONS, SECTIONS 53.2, 54.4 AND 55.2.

IN YOUR REQUEST FOR RECONSIDERATION, YOU CONTEND THAT THE CITED DECISION OF THE INTERSTATE COMMERCE COMMISSION INVOLVED QUESTIONS OF REASONABLENESS AND IS THUS WITHOUT EFFECT SINCE THE RULING OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464. ALTHOUGH THE QUESTION OF REASONABLENESS OF THE CHARGES COLLECTED WAS RAISED BY THE PETITIONER IN THE CURTIS LIGHTING CASE, THE DECISION BY THE COMMISSION IN THAT CASE TURNED ON THE QUESTION OF THE APPLICABILITY OF THE TARIFF PROVISIONS INVOLVED. DISPOSITION OF THE CASE ON THE BASIS OF APPLICABILITY WAS IN ACCORDANCE WITH THE WELL-SETTLED RULE THAT THE APPLICABLE RATE MAY BE DETERMINED UNDER AN ALLEGATION OF UNREASONABLENESS. FOSTER WHEELER CORP. V. CENTRAL R.CO. OF NEW JERSEY, 273 I.C.C. 119. THE CASE WAS NOT, THEREFORE, ONE GOVERNED BY THE RULE OF THE T.I.M.E. CASE.

OUR OFFICE, IN THE DISCHARGE OF THE DUTY IMPOSED UPON IT BY THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, IS GOVERNED IN THE AUDIT OF TRANSPORTATION ACCOUNTS BY DULY FILED AND PUBLISHED TARIFF RATES, WHERE APPLICABLE. IN THE PRESENT CASE IT IS OUR DUTY TO DECIDE IN THE AUDIT OF THE FREIGHT CHARGES WHICH TARIFF PROVISIONS ARE APPLICABLE. WE HAVE DETERMINED THAT THE TARIFF EXCLUSIVE-USE PROVISIONS ARE NOT APPLICABLE AND THAT TRUCKLOAD CHARGES ARE APPLICABLE AND HAVE CITED THE RULING IN THE CURTIS LIGHTING CASE IN SUPPORT OF OUR DETERMINATION. SO LONG AS THAT CASE REMAINS AS THE SOLE OUTSTANDING AUTHORITY ON THE PARTICULAR QUESTION INVOLVED, WE CONSIDER THAT WE ARE OBLIGED TO FOLLOW THE PRINCIPLE APPLIED BY THE COMMISSION IN THAT CASE.

ACCORDINGLY, SINCE YOUR LETTER OF NOVEMBER 28, 1960, CONTAINS NOTHING TO JUSTIFY A REVERSAL OR MODIFICATION OF THE PRIOR CONCLUSION, THE DECISION OF NOVEMBER 25, 1960, IS AFFIRMED.