B-203505, SEP 1, 1981

B-203505, SEP 1, 1981

DIGEST: TRANSPORTATION AUDIT ACTION BY THE GENERAL SERVICES ADMINISTRATION, BASED ON FACTUAL DETERMINATION THAT ELECTRIC CABLE WAS TRANSPORTED, IS SUSTAINED WHERE CARRIER'S CONTENTION THAT SHIPMENT CONSISTED OF COAXIAL TRANSMISSION LINE IS NOT SUPPORTED BY DESCRIPTION ON SHIPPING DOCUMENT, AND SHIPPING AGENCY'S REPORT DESCRIBES ARTICLE AS ELECTRIC CABLE.

YELLOW FREIGHT SYSTEM, INC.:

YELLOW FREIGHT SYSTEM, INC. (YELLOW) REQUESTS REVIEW OF DEDUCTION ACTION TAKEN BY THE GENERAL SERVICES ADMINISTRATION (GSA) TO RECOVER OVERCHARGES COLLECTED BY YELLOW IN CONNECTION WITH THE TRANSPORTATION OF GOVERNMENT PROPERTY FROM NORFOLK, VIRGINIA, TO THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA), BOULDER, COLORADO.

THE GOVERNMENT PAID FREIGHT CHARGES OF $2,227.27 TO YELLOW. AFTER AUDITING YELLOW'S BILLS, GSA DETERMINED THAT THE APPLICABLE CHARGES WERE $2,033.84; THEREFORE, $193.43 WAS DEDUCTED FROM MONIES OTHERWISE DUE THE CARRIER. VALIDITY OF THE DEDUCTION ACTION DEPENDS UPON RESOLUTION OF A FACTUAL QUESTION: WHETHER THE ITEMS SHIPPED CONSISTED OF COAXIAL TRANSMISSION LINE, AS DESCRIBED IN ITEM 61320 OF THE GOVERNING NATIONAL MOTOR FREIGHT CLASSIFICATION (ICC-NMFC-100-E), OR ELECTRIC CABLE, AS DESCRIBED IN ITEM 61160 OF THE CLASSIFICATION.

YELLOW'S CHARGES WERE BASED ON THE PREMISE THAT THE ENTIRE SHIPMENT CONSISTED OF TRANSMISSION LINE. ON THAT ASSUMPTION THE CARRIER APPLIED THE CLASS 70 TRUCKLOAD RATING (PUBLISHED IN ITEM 61320) TO THE ACTUAL WEIGHT OF THE SHIPMENT, 22,480 POUNDS. GSA MAINTAINS, HOWEVER, THAT THE SHIPMENT CONSISTED PRIMARILY OF ELECTRIC CABLE, WHICH IS SUBJECT TO A LOWER RATE, AND ONLY A SMALL QUANTITY OF TRANSMISSION LINE. GSA'S POSITION IS SUPPORTED BY A LETTER DATED MAY 1, 1980, FROM THE TRAFFIC MANAGER OF NOAA, BOULDER, COLORADO, STATING THAT THE SHIPMENT CONSISTED OF EIGHT REELS OF ELECTRIC CABLE, WEIGHING 22,000 POUNDS AND ONE BOX OF TRANSMISSION LINE, WEIGHING 480 POUNDS.

WE ARE UNABLE TO CONCLUDE FROM THE RECORD THAT YELLOW'S POSITION IS CORRECT. THE FIRST DOCUMENT ISSUED IN CONNECTION WITH THE SHIPMENT WAS A REQUISITION AND INVOICE/SHIPPING DOCUMENT, DD FORM 1149, ISSUED BY NOAA ON AUGUST 1, 1978. THE TYPEWRITTEN DESCRIPTION OF THE MATERIAL TO BE SHIPPED READS "599 500 LSN RADIO FREQUENCY (HIGH POWER) CABLE." BELOW THAT TYPEWRITTEN DESCRIPTION ARE THE PRINTED WORDS "COAXIAL TRANSMISSION LINE." THE SUBSEQUENTLY ISSUED GOVERNMENT BILL OF LADING (GBL) NO. K- 1974931 DESCRIBES THE ARTICLES AS CABLE AND TRANSMISSION LINE (8 REELS, 1 BOX). IT IS ONLY YELLOW'S WAY BILL NO. 209-116207, WHICH IS BASED ON THE CARRIER'S INTERPRETATION OF THE DESCRIPTION ON THE DD FORM 1149, WHICH DESCRIBES THE SHIPMENT AS EIGHT REELS AND ONE CRATE OF RADIO FREQUENCY HIGH POWER CABLE COAXIAL TRANSMISSION LINES, ITEM 61320.

WHERE THE IDENTITY OF A COMMODITY IS IN QUESTION, THE IMPORTANT FACT IS WHAT MOVED, AND GREAT WEIGHT IS GIVEN TO THE AGENCY'S DESCRIPTION. TRANS COUNTRY VAN LINES, INC., 53 COMP.GEN. 868 (1974). YELLOW HAS NOT PRESENTED ANY EVIDENCE TO REFUTE THE AGENCY'S POSITION; IT MERELY RELIES ON ITS READING OF THE DD FORM 1149, WHICH IT BELIEVES SHOWS THAT THE SHIPMENT CONSISTED OF "RADIO FREQUENCY *** CABLE COAXIAL TRANSMISSION LINES." LIGHT OF THE STATEMENT OF NOAA'S BOULDER TRAFFIC MANAGER, HOWEVER, AND THE TYPEWRITTEN DESCRIPTIONS ON THE DD FORM 1149 AND GBL, WE THINK IT IS MORE REASONABLE TO CONCLUDE THAT THE SHIPMENT DID INDEED CONSIST OF EIGHT REELS OF CABLE AND A BOX OF TRANSMISSION LINE.

YELLOW ASSERTS, HOWEVER, THAT EVEN IF THE SHIPMENT CONSISTED OF CABLE, UNDER A PROPER READING OF THE FREIGHT CLASSIFICATION THE CABLE SHOULD BE CLASSIFIED UNDER ITEM 61320 IN ANY EVENT. WE DISAGREE. ITEM 61320 CANNOT APPLY TO THE CABLE BECAUSE THAT ITEM (UNDER NOTE 61322 OF THE CLASSIFICATION) APPLIES TO STRAIGHT LENGTHS; THE CABLE WAS SHIPPED ON REELS.

FOR THE ABOVE REASON GSA'S AUDIT ACTION IS SUSTAINED.