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UNLESS IT IS ALLOWED ROUTING FROM PUEBLO. WE BELIEVE THAT ROUTING GUIDE 292 PROPERLY IS APPLICABLE IN DETERMINING THE ROUTING OF SHIPMENTS MOVING IN FREIGHT TRAIN SERVICE. IT IS OUR VIEW THAT UNDER THE AGREEMENT EFFECTIVE JULY 1. THE OBVIOUS PURPOSE OF THE AGREEMENT WAS TO ENABLE THE TRANSPORTATION OF TRAINING MATERIAL OVER PASSENGER TRAIN ROUTING AT THE SAME CHARGES AS WOULD HAVE APPLIED IF THE SHIPMENT HAD MOVED IN FREIGHT TRAIN SERVICE. IT IS POINTED OUT THAT THE AGREEMENT WITH ATOMIC ENERGY COMMISSION SPECIFICALLY PROVIDES IN THE FIRST LINE THAT IT IS ISSUED UNDER THE PROVISIONS OF SECTION 22 OF THE INTERSTATE COMMERCE ACT. IT IS SPECIFICALLY PROVIDED IN SUCH AGREEMENT THAT THE TRAINING MATERIAL IS TO BE TRANSPORTED UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS APPLY FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA.

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B-149821, OCT. 29, 1963

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

IN YOUR LETTER DATED OCTOBER 11, 1963, FILE 5 GB 27639, YOU RESTATED SEVERAL OF YOUR PREVIOUS CONTENTIONS AND REQUESTED FURTHER CONSIDERATION AND PAYMENT OF YOUR CLAIM FOR ADDITIONAL CHARGES ON THE TRAINING MATERIAL TRANSPORTED UNDER BILL OF LADING AT-151617, DATED OCTOBER 23, 1959.

YOU AGAIN MAKE REFERENCE TO THE ROUTING PROVIDED IN SOUTHWESTERN LINES ROUTING GUIDE 292, I.C.C. 4091, AND ASK WHEY WE OVERLOOKED ITEM 2150 ON PAGE 167 OF THE ROUTING GUIDE. YOU ALSO REITERATE YOUR CONTENTION THAT YOUR COMPANY CANNOT PROTECT THE DENVER RATE TO ROCKY, COLORADO, UNLESS IT IS ALLOWED ROUTING FROM PUEBLO, COLORADO. WE BELIEVE THAT ROUTING GUIDE 292 PROPERLY IS APPLICABLE IN DETERMINING THE ROUTING OF SHIPMENTS MOVING IN FREIGHT TRAIN SERVICE; HOWEVER, IT IS OUR VIEW THAT UNDER THE AGREEMENT EFFECTIVE JULY 1, 1951, WITH THE ATOMIC ENERGY COMMISSION, AND THE PROVISIONS OF SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT 29, INCORPORATED BY REFERENCE THEREIN, THE TRAINING MATERIAL MAY MOVE IN PASSENGER TRAIN SERVICE AT THE SAME CHARGES AS WOULD APPLY IF IT HAD BEEN MOVED IN REGULAR FREIGHT TRAIN SERVICE. THE OBVIOUS PURPOSE OF THE AGREEMENT WAS TO ENABLE THE TRANSPORTATION OF TRAINING MATERIAL OVER PASSENGER TRAIN ROUTING AT THE SAME CHARGES AS WOULD HAVE APPLIED IF THE SHIPMENT HAD MOVED IN FREIGHT TRAIN SERVICE.

REGARDING YOUR CONTENTION THAT WE DID NOT REFER TO A SECTION 22 QUOTATION AUTHORIZING THE RATE, IT IS POINTED OUT THAT THE AGREEMENT WITH ATOMIC ENERGY COMMISSION SPECIFICALLY PROVIDES IN THE FIRST LINE THAT IT IS ISSUED UNDER THE PROVISIONS OF SECTION 22 OF THE INTERSTATE COMMERCE ACT, AND IT IS SPECIFICALLY PROVIDED IN SUCH AGREEMENT THAT THE TRAINING MATERIAL IS TO BE TRANSPORTED UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS APPLY FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA, THUS INCORPORATING BY REFERENCE THE PROVISION OF JOINT MILITARY PASSENGER AGREEMENT 29 WHICH CONTROLS THE RATES ON SUCH IMPEDIMENTA. IT IS NOT UNUSUAL FOR SECTION 22 QUOTATIONS TO REFER TO OTHER SOURCES FOR THE RATES AND CONDITIONS TO BE EMPLOYED IN THE COMPUTATION OF THE CHARGES.

OUR REFERENCE TO THE SUM OF $23.87 (ALSO SHOWN AS $23.07), REFERRED TO IN THE FIRST PARAGRAPH ON PAGE TWO OF YOUR LETTER, WAS BASED ON THE FACT THAT $190.23 OF THE $214.10 ORIGINALLY CLAIMED BY YOUR BILL 27639 WAS ALLOWED BY OUR SETTLEMENT CERTIFICATE DATED AUGUST 15, 1963, AND YOUR LETTERS PERTINENT TO SUCH SUPPLEMENTAL BILL PRESUMABLY RELATE ONLY TO THE DIFFERENCE BETWEEN THE AMOUNT CLAIMED AND ALLOWED ($214.10 LESS $190.23) OR $23.87.

REGARDING THE ROUTING OF THIS SHIPMENT BY THE ATOMIC ENERGY COMMISSION, IT IS OUR UNDERSTANDING THAT THE SHIPMENT MOVED OVER A PASSENGER SERVICE ROUTE WHICH DIFFERED FROM THE ROUTING FOR FREIGHT TRAIN SERVICE. POINTED OUT IN OUR PREVIOUS LETTERS, HOWEVER, IT IS OUR VIEW THAT CONFLICTS BETWEEN PASSENGER AND FREIGHT TRAIN ROUTING WERE CONTEMPLATED, AND THAT THE PROVISIONS OF PARAGRAPHS (E) AND (H) OF SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT 29 AUTHORIZE THE SAME CHARGES ON MILITARY TRAINING MATERIAL MOVING IN PASSENGER TRAIN SERVICE AS WOULD APPLY IF THE SHIPMENT HAD MOVED IN REGULAR FREIGHT TRAIN SERVICE.

IN RESPONSE TO THE INQUIRY IN THE LAST PARAGRAPH ON PAGE TWO OF YOUR LETTER, THE PAYMENT RECORDS SHOW THAT TEN FARES OF $60.03 WERE PAID UNDER YOUR BILL 27638 COVERING BILL OF LADING AT-151616 WHICH INCLUDED THE LOCAL PASSENGER FARE FROM DENVER TO ROCKY, COLORADO. THE FREIGHT RATE FROM KILLEEN, TEXAS, TO ROCKY, COLORADO, ALSO INCLUDES CHARGES FOR THE SERVICE BETWEEN DENVER AND ROCKY, COLORADO, AND SUCH CHARGES ARE SEPARATE FROM AND ARE NOT AFFECTED BY PROVISIONS FOR SPECIAL TRAIN SERVICE CHARGES PROVIDED FOR IN THE AGREEMENT OF DECEMBER 8, 1952, BETWEEN YOUR COMPANY AND THE ATOMIC ENERGY COMMISSION.

ACCORDINGLY, WE WOULD NOT BE WARRANTED IN MODIFYING OUR PRIOR DECISIONS WHICH ARE AFFIRMED.

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