B-146497, JAN. 17, 1963

B-146497, JAN. 17, 1963

TO THE CLEVELAND, COLUMBUS AND CINCINNATI HIGHWAY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1962, WITH WHICH YOU ENCLOSED 33 BALANCE DUE BILLS, TOTALLING $14,118.82 AS ADDITIONAL FREIGHT CHARGES, AND REQUESTED REVIEW OF THE SETTLEMENT CERTIFICATES WHICH DISALLOWED YOU CLAIMS (TK-659267 TO TK-659299, INCLUSIVE) FOR SUPPLEMENTAL FREIGHT CHARGES ON SHIPMENTS OF BERYLLIUM-COPPER INGOTS TRANSPORTED FOR THE GENERAL SERVICES ADMINISTRATION FROM ELMORE, OHIO, TO WARREN AND MARION, OHIO.

THE SHIPMENTS MOVED DURING THE PERIOD NOVEMBER 6, 1957, TO FEBRUARY 5, 1960, UNDER GOVERNMENT BILLS OF LADING WHICH SHOW THE DESCRIPTION OF THE ARTICLES SHIPPED VARIOUSLY AS "COPPER INGOTS (BERYLLIUM COPPER MASTER ALLOY)," "COPPER PIGS OR INGOTS (BERYLLIUM COPPER MASTER ALLOY)," AND ,COPPER INGOTS.' THE CERTIFICATES OF SETTLEMENT ISSUED IN CONNECTION WITH YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES ON THE SUBJECT SHIPMENTS ARE PREDICATED UPON THE CLASS 27.5 EXCEPTIONS RATING PUBLISHED IN EITHER ITEM 1500 OF OHIO MOTOR FREIGHT TARIFF COMMITTEE TARIFF NO. 0-6-D, MF-I.C.C.NO. 670, EFFECTIVE DECEMBER 24, 1956, OR ITEM 1560 OF OMFTC TARIFF NO. 0-6-E, MF-I.C.C.NO. 744, EFFECTIVE JANUARY 18, 1960, DEPENDING UPON THE DATE OF SHIPMENT. IT IS YOUR CONTENTION THAT APPLICATION OF THESE EXCEPTIONS RATINGS TO THE SUBJECT SHIPMENTS COULD BE ONLY THROUGH USE OF ANALOGY RULE 14 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 14, MF-I.C.C.NO. 10, AND THAT THIS RULE WILL NOT APPLY IN CONNECTION WITH RATINGS PUBLISHED IN EXCEPTIONS TO THE CLASSIFICATION. THIS CONTENTION APPARENTLY IS BASED UPON THE FACT THAT THE SHIPMENTS CONSISTED OF BERYLLIUM-COPPER MASTER ALLOY INGOTS WITH 3.75 TO 4.50 PERCENT BERYLLIUM CONTENT; WHEREAS, THE EXCEPTIONS RATINGS USED IN THE SETTLEMENTS COVERED ARTICLES DESCRIBED IN BOTH EXCEPTIONS TARIFFS AS "BRASS, BRONZE OR COPPER * * * INGOTS * * *.'

NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13, MF-I.C.C. NO. 7, EFFECTIVE JULY 7, 1955, UNDER THE GENERIC CAPTION "BRASS, BRONZE OR COPPER," PROVIDED A RATING ON BRASS, BRONZE OR COPPER INGOTS IN ITEM 13570 THEREOF. ALSO, UNDER THE GENERIC CAPTION "METALS OR ALLOYS NOT NAMED IN OTHER MORE SPECIFIC GROUPS," ITEM 68730 OF NMFC NO. 13 PROVIDED A RATING ON "INGOTS, BERYLLIUM-COPPER, BERYLLIUM CONTENT EXCEEDING 2 PERCENT," AND ITEM 68735 PROVIDED A RATING ON "INGOTS, BERYLLIUM-COPPER, BERYLLIUM CONTENT NOT EXCEEDING 2 PERCENT.' THUS, IN THE CLASSIFICATION, THERE WAS A RATING ON COPPER INGOTS AND TWO RATINGS ON BERYLLIUM-COPPER INGOTS (DEPENDING UPON THE PERCENTAGE OF BERYLLIUM CONTENT). HOWEVER, EFFECTIVE OCTOBER 18, 1955, IN SUPPLEMENT 3 TO NMFC NO. 13, ITEMS 68730 AND 68735, COVERING THE BERYLLIUM-COPPER INGOTS, WERE CANCELLED AND IN CONNECTION WITH THE CANCELLATION OF BOTH ITEMS THERE WAS SHOWN THE INSTRUCTION "SEE ITEM 13570.' THE EFFECT OF THIS REFERENCE WAS THAT THE PROPER RATING ON SHIPMENTS OF BERYLLIUM-COPPER INGOTS WAS THE COPPER INGOT RATING SHOWN IN ITEM 13570, WITHOUT REGARD TO THE BERYLLIUM CONTENT. DURING THIS PERIOD THERE WAS PUBLISHED IN ITEM 1500 OF OMFTC TARIFF NO. 0-6-D AN EXCEPTIONS RATING WHICH EFFECTIVELY REMOVED FROM THE CLASSIFICATION THE RATINGS ON BRASS, BRONZE OR COPPER "CAKES, INGOTS, PIGS OR SLABS" SHOWN IN ITEM 13570 OF CLASSIFICATION NO. 13. THEREFORE, WHEN ITEMS 68730 AND 68735, COVERING BERYLLIUM-COPPER INGOTS, WERE CANCELLED AND REFERENCE MADE TO ITEM 13570 FOR THE RATING TO BE APPLIED, IT APPEARS THAT THE COPPER INGOT RATING IN ITEM 13570 WAS SUBSTITUTED FOR THE BERYLLIUM-COPPER INGOT RATINGS IN ITEM 68730 AND 68735, AND SUCH SUBSTITUTED RATING IN ITEM 13570 WAS EFFECTIVELY REMOVED BY THE EXCEPTIONS RATING ON COPPER INGOTS THEN IN EXISTENCE. THUS THE COPPER INGOT EXCEPTIONS RATING EFFECTIVELY REMOVED FROM THE CLASSIFICATION THE RATINGS ON BERYLLIUM-COPPER INGOTS.

EFFECTIVE MAY 21, 1957, THE CLASSIFICATION RATINGS PUBLISHED IN NMFC NO. 13 WERE REISSUED IN NMFC NO. 14. THE SUPERSEDING ISSUE NO. 14 CONTINUED THE RATINGS ON BRASS, BRONZE OR COPPER INGOTS, USING THE IDENTICAL DESCRIPTION SHOWN IN NMFC NO. 13 AND RETAINING THE SAME ITEM NUMBER--- 13570. APPARENTLY, THESE RATINGS CONTINUED TO APPLY ON BERYLLIUM-COPPER INGOTS SINCE THE REISSUE OF THE CLASSIFICATION IN THE FORM OF NMFC NO. 14 MAKES NO MENTION OF ANY CHANGE FROM THE PREVIOUS RATINGS SHOWN IN ITEM 13570 OF NMFC NO. 13. IF THERE WERE MEANT TO BE ANY CHANGES OR CANCELLATIONS THEY SHOULD HAVE BEEN APPROPRIATELY INDICATED. WHEN A TARIFF CANCELLING A PREVIOUS ISSUE OMITS RATINGS WHICH ARE CONTAINED IN SUCH PREVIOUS ISSUE, THE NEW TARIFF SHOULD INDICATE THE CANCELLATION IN THE PRESCRIBED MANNER, AND IF SUCH OMISSIONS EFFECT CHANGES IN CHARGES OR SERVICES, THAT FACT SHOULD BE INDICATED BY THE USE OF THE UNIFORM SYMBOLS PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION. SEE SECTION 141.2 (B) OF TITLE 49 OF THE CODE OF FEDERAL REGULATIONS.

THE EXCEPTIONS RATINGS SHOWN IN ITEM 1500 OF OMFTC TARIFF NO. 0-6-D AND ITEM 1560 OF OMFTC TARIFF NO. 0-6-E REMOVE FROM CLASSIFICATION NO. 14 THE RATINGS ON COPPER INGOTS SHOWN IN ITEM 13570 JUST AS ITEM 1500 OF OMFTC TARIFF NO. 0-6-D DID WITH ITEM 13570 OF CLASSIFICATION NO. 13. THEREFORE, THE EXCEPTIONS RATINGS ARE THE ONLY RATINGS APPLICABLE TO THE SUBJECT SHIPMENTS, SINCE CLASSIFICATION EXCEPTIONS TAKE PRECEDENCE OVER THE CLASSIFICATION PROPER. NORWICH WIRE WORKS, INC. V. BOSTON AND MAINE R., 229 I.C.C. 395, 398 (1938). THE CLASSIFICATION-EXCEPTIONS DESCRIPTION OF AN ARTICLE REMOVES THE CORRESPONDING DESCRIPTION FROM THE CLASSIFICATION. RED TOP BREWING CO., V. HANSON MOTOR EXPRESS, INC., 62 M.C.C. 93, 95-96 (1953).

AN EXCEPTION TO THE CLASSIFICATION IS AN AMENDMENT TO THE CLASSIFICATION, ITS TRUE FUNCTION BEING TO REMOVE ARTICLES FROM THE CLASSIFICATION AND ESTABLISH CLASS RATES AND RULES THEREON DIFFERING FROM THOSE PROVIDED IN THE CLASSIFICATION. LINE MATERIAL CO. V. PENNSYLVANIA R.CO., 281 I.C.C. 749, 751 (1951); GENDER PAESCHKE AND FREY CO. V. CHICAGO, M.ST.P. AND P.R.CO., 297 I.C.C. 265, 266 (1955); LUMMUS COTTON GIN CO. V. SEABOARD AIRLINE R.CO., 281 I.C.C. 65 (1951). EXCEPTION RATES ARE RATES RESULTING FROM TRANSFER OF A COMMODITY OUT OF ITS REGULARLY ASSIGNED CLASS IN THE CLASSIFICATION, IN THIS CASE ITEM 13570, AND INTO ANOTHER CLASS. NEW YORK V. UNITED STATES, 331 U.S. 284, FOOTNOTE, PAGE 290 (1947). IN DETERMINING WHETHER THE EXCEPTIONS RATING IS FOR APPLICATION, THE CLASSIFICATION EXCEPTIONS MUST BE INTERPRETED IN THE LIGHT OF THE CLASSIFICATION AND OF THE SPECIFICATIONS AND DEFINITIONS CONTAINED THEREIN. MARX AND SONS V. ILLINOIS CENTRAL R.CO., 36 I.C.C. 519, 521 (1915); LUDOWICI-CELADON CO. V. ELGIN, JOLIET AND EASTERN RY.CO., 39 I.C.C. 407, 408 (1916); GROSS AND CO. V. LEHIGH VALLEY R.CO., 201 I.C.C. 248, 249 (1934); SHELT CO., INC. V. BALTIMORE AND OHIO R.CO., 216 I.C.C. 135, 138 (1936). DESCRIPTIONS IN THE EXCEPTIONS MUST BE READ IN CONNECTION WITH THE CLASSIFICATION ITEM, AND NOT WHOLLY BY ITSELF. MARX AND SONS V. ILLINOIS CENTRAL R.CO., 36 I.C.C. 519 (1915); GENERAL MOTORS TRUCK CO. V. GRAND TRUNK WESTERN RY. CO., 118 I.C.C. 99, 103 (1926); SPENCER SONS CO. V. CINCINNATI, N.O. AND T.P.RY.CO., 163 I.C.C. 492, 494 (1930).

THE PRESENT RECORD INDICATES THAT THE PURPOSE OF THE CHANGE MADE IN THE TARIFF WAS TO TRANSFER BERYLLIUM-COPPER INGOTS TO THE ITEM SHOWING RATINGS ON COPPER INGOTS. IN THIS CONNECTION, THE RECORD CONTAINS A COPY OF THE DISPOSITION NOTICE PERTAINING TO THE NATIONAL CLASSIFICATION BOARD'S HANDLING OF PROPOSALS DEALING WITH BERYLLIUM COPPER INGOTS. THE DISPOSITION NOTICE SHOWS THAT THE BOARD APPROVED THE APPLICATION OF COPPER INGOT RATINGS ON SHIPMENTS OF COPPER INGOTS CONTAINING BERYLLIUM. THE BOARD'S REPORT IN ITS DOCKET 69, SUBJECT 49, DATED AUGUST 4, 1955, CONTAINS THE STATEMENT THAT "BERYLLIUM COPPER INGOTS HAVE TRANSPORTATION CHARACTERISTICS NO DIFFERENT THAN THOSE OF OTHER TYPES OF COPPER BASE ALLOYS, HOWEVER, IT IS PRESENTLY BEING PENALIZED BY THE SPECIFIC DESCRIPTION CONTAINED IN ITEM 68730 AND 68735 WHEREAS OTHER COPPER ALLOY INGOTS ARE MOVING UNDER THE COPPER INGOT RATING.' THUS, IT SEEMS OBVIOUS THAT COPPER INGOT RATINGS, WHETHER SHOWN IN THE CLASSIFICATION ITSELF OR PUBLISHED AS AN EXCEPTION TO THE CLASSIFICATION, ARE APPLICABLE ON BERYLLIUM-COPPER INGOTS.

ACCORDINGLY, THE SETTLEMENT ACTION TAKEN IN CONNECTION WITH THE SUBJECT CLAIMS APPEARS PROPER AND, THEREFORE, THE SETTLEMENTS ARE SUSTAINED.