BNUMBER:  B-253293.2; B-254374.2; B-254375.2; B-254381.2
DATE:  November 16, 1995
TITLE:  Tri-State Motor Transit Company-Reconsideration

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Matter of:Tri-State Motor Transit Company-Reconsideration

File:     B-253293.2; B-254374.2; B-254375.2; B-254381.2

Date:     November 16, 1995

DIGEST

A shipment of mortar cartridges containing smoke producing white 
phosphorus, a commodity that met the definition of "chemical 
ammunition" under the Department of Transportation's (DOT) Hazardous 
Materials Regulations in Title 49, Code of Federal Regulations 
(C.F.R.), at 49 C.F.R. (1990) Section 173.53(r), also met the 
definition of "chemical ammunition" for purposes of rates and charges 
under the Military Traffic Management Command's Freight Traffic Rules 
Publication 1A.  Similarly, "special fireworks," which met the 
definition of "chemical ammunition" under the Hazardous Materials 
Regulations, also met that definition for purposes of rates and 
charges.

DECISION

Tri-State Motor Transit Company (Tri-State) requests reconsideration 
of our decision Tri-State Motor Transit Company, B-253293 et al., Dec. 
10, 1993.[1]  There, we held that shipments of certain hazardous 
materials transported by Tri-State were not "chemical ammunition" for 
the purpose of applying higher minimum weights to the shipments, in 
accordance with Note 3 of item 325 and Note 3 of item 327 of the 
Military Traffic Management Command's (MTMC) Freight Traffic Rules 
Publication No. 1A (MFTRP 1A).

We have fully reviewed the issues again, including the information 
submitted on reconsideration, and we now believe that the term 
"chemical ammunition," as used in Note 3 of items 325 and 327, 
includes the items involved here.  Therefore, we reverse our prior 
decision.

BACKGROUND

Each Note 3 of items 325 and 327, provides that higher minimum weights 
(resulting in higher charges) are applicable "when shipper provides 
additional descriptive information in conjunction with the hazardous 
material description entry on the GBL [government bill of lading], 
which identifies chemical ammunition with incendiary charges or white 
phosphorus . . . ."

Examples of the hazardous material involved in the shipments in this 
controversy are (1) smoke-producing mortar cartridges that were 
described on the GBL as:  "CARTRIDGE 81MM, SMOKE, WHITE PHOSPHORUS, 
M375A3;" and (2) incendiary grenades used primarily to provide a 
source of intense heat to destroy equipment described on the GBL as:  
"FIREWORKS, SPECIAL-CLASS B EXPLOSIVE - CAT3 - (Grenade, Hand, 
Incendiary, AN-M14)."  The mortar cartridges were classified as 
"ammunition for cannon with smoke projectile."  The grenades were 
classified as "special fireworks."  The controversy is whether, for 
purposes of each Note 3, these GBLs contained "additional descriptive 
information" indicating that the shipments consisted of chemical 
ammunition with incendiary charges or white phosphorus.  

Tri-State's argument has been that the Department of Transportation's 
(DOT) Hazardous Materials Regulations (especially Parts 172, 173 and 
177 of Title 49 of the Code of Federal Regulations (C.F.R.), as they 
existed prior to 1991), are the basis for determining whether the 1990 
shipments in issue should have been classified as "chemical 
ammunition."  At the time of the shipments in question, 49 C.F.R.  
173.53(r), under the heading "Class A Explosives; Definitions," 
defined "chemical ammunition" as including "all kinds of explosive 
chemical projectiles . . . loaded with toxic, tear, or other gas, 
smoke or incendiary agent . . . ."  Thus, Tri-State argued, the term 
"chemical ammunition," by definition, included any explosive or 
ammunition containing as a filler white phosphorus (a recognized smoke 
agent), incendiary or other agent named in 49 C.F.R.  173.53(r).

In our prior decision, we agreed with Tri-State that the DOT 
regulations "are relevant in interpreting the term 'chemical 
ammunition' in Note 3 of items 325 and 327," since item 5 of MFTRP 1A 
specifically incorporates the American Trucking Association's (ATA) 
Hazardous Materials Tariff, and the tariff is based on the DOT 
Hazardous Materials Regulations.  We concluded, however, that because 
the items transported were described as "ammunition for cannon with 
smoke projectiles" (including smoke and incendiary projectiles) or 
"special fireworks," neither of these items fell within the definition 
of "chemical ammunition" in section 173.53(r).[2]

RECONSIDERATION 

Tri-State has submitted a letter dated October 17, 1994, from the 
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration, DOT.[3]  The Associate Administrator 
states that commodities classified as "Ammunition for Cannon with 
Smoke Projectile, WP, Class A explosive" and "Fireworks, Special, 
Incendiary Charge, Class B explosive," met the definition of "chemical 
ammunition containing incendiary charges or white phosphorus" as 
provided in footnote 3 of 49 C.F.R.  177.848(f), the Segregation and 
Separation Chart of Hazardous Materials.  Footnote 3 requires that 
both Class A and B explosives must not be loaded or stored with 
chemical ammunition containing incendiary charges or white phosphorus.  
Tri-State has also submitted a letter dated August 30, 1994, from the 
Chief, Regulations Development, Office of Hazardous Materials 
Standards to the same effect.

MTMC and General Services Administration (GSA) argue in response that 
while the definition of the term "chemical ammunition" offered by the 
DOT officials is relevant for purposes of regulating health and safety 
matters associated with the transport of hazardous material, that 
definition is not relevant for the resolution of rate disputes.  
Instead, they argue, rate disputes are resolved by examining rate 
publications, such as the National Motor Freight Classification 
(NMFC), and Interstate Commerce Commission (ICC) decisions.  They 
argue that the items in question were properly described on the GBLs 
as explosives other than chemical ammunition.

We agree with GSA and MTMC that the logical places to look for a 
definition of the term chemical ammunition for rate purposes would be 
in a rate publication or in an ICC decision.  Unfortunately, the term 
is not specifically defined in MFTRP 1A; nor is the term listed as a 
commodity in the NMFC.  Also, after searching through ICC decisions 
and other regulations in the C.F.R., MTMC has been unable to find a 
pertinent definition of chemical ammunition in those materials.

The only relevant definition of chemical ammunition in a rate 
publication is to be found in the ATA Tariff, which is incorporated 
into MFTRP 1A, and which is based on the DOT Hazardous Materials 
Regulations.  There is no indication in MFTRP 1A that the 
incorporation of the ATA Tariff is merely for the limited purpose of 
regulating health and safety matters associated with the transport of 
hazardous materials and not for rate purposes.  Therefore, as we 
previously concluded, the definition of chemical ammunition as used in 
each Note 3, must be interpreted based on the DOT Hazardous Materials 
Regulations.

MTMC further argues that, in any event, the term chemical ammunition, 
as used in each Note 3, evolved not from the definition contained in 
section 173.53(r), but from its understanding of that term as used in 
footnote 3 of section 177.848(f). MTMC argues that section 173.53(r) 
provides a definition of chemical ammunition for Class A explosives 
only, while section 177.848 applies to all hazardous materials.  
According to MTMC, to find the definition of chemical ammunition as 
used in footnote 3, one must look at the Hazardous Materials Table in 
49 C.F.R.  172.101, which lists the hazardous material descriptions 
and proper shipping names of all hazardous materials.  All listings of 
"Ammunition, chemical" in this table involve Poison A or Poison B, or 
an irritating material.  MTMC also calls attention to a letter 
Tri-State received from the Headquarters, U.S. Army Armament, 
Munitions and Chemical Command, Rock Island, Illinois, which states 
that "we define chemical ammunition as ammunition containing toxic 
chemical agents."

MTMC's argument is not persuasive.  Admittedly, as the Chief, 
Regulations Development, DOT Office of Hazardous Materials Standards, 
acknowledges in his August 30 letter to Tri-State, the entries in the 
Hazardous Materials Table might cause confusion since, as MTMC points 
out, the Table only lists the proper shipping name "chemical 
ammunition" to items that contain toxic materials.  However, as he 
points out, none of these listed entries contains white phosphorus 
and, thus, none would require special handling under footnote 3 of the 
Segregation and Separation Chart.

Nor has MTMC or GSA identified examples of ammunition containing toxic 
agents that also include an incendiary or a white phosphorus element.  
In other words, while MTMC and GSA have argued that the items shipped 
here were not covered by each Note 3, they have not given examples of 
the types of items that, in their opinion, are covered.  It thus 
appears to us that if the MTMC and GSA version of the term chemical 
ammunition were adopted, each Note 3 would apply to very few, if any, 
shipments of hazardous materials.[4]  It would not be reasonable to 
interpret each Note 3, so as to render it practically meaningless.  
See Southern Pac. Transp. Co. v. United States, 596 F. 2d 461, 464-465 
(Ct. Cl. 1979).  We conclude, therefore, that the term chemical 
ammunition, as used in each Note 3, includes items other than those 
specifically listed in the Hazardous Materials Table at 49 C.F.R.  
172.101 as "chemical ammunition."  Specifically, the term includes 
items of the type described in section 173.53(r).

We will reverse a decision of our Office when it is shown that our 
decision was based on an error of fact or of law.  Eck Miller 
Transportation Corporation, B-245385; B-247385.2, May 20, 1992.  Our 
prior decision was based on a conclusion of law that the items in 
question were not chemical ammunition.  The information and arguments 
submitted on reconsideration show that this conclusion was in error 
and that the definition of "chemical ammunition" includes the items 
shipped here.

Accordingly, we conclude that each Note 3 of items 325 and 327 of 
MFTRP 1A should have been applied to the items shipped here.  GSA's 
settlements are reversed.

Robert P. Murphy
General Counsel

1. Recent correspondence from Tri-State indicates that this 
reconsideration would dispose of the issues in its claims under our 
file B-260648.  Tri-State's attorney also requested that our 
reconsideration include B-256870 that involves the same issues.  
Accordingly, we will consider this reconsideration to be dispositive 
of the claims in B-260648 and the reconsideration of B-256870, and we 
will not issue separate decisions involving these two files.

2. Class A material involves detonating or other items posing maximum 
hazards; Class B material is material posing flammable hazards.  See 
49 C.F.R.  173.52.

3. This Office is responsible for drafting the Hazardous Materials 
Regulations.

4. We have been informally advised by a cognizant official in DOT's 
Research and Special Programs Administration that he is unaware of any 
weapon system that employs white phosphorus to disburse a toxic or 
irritating agent and that it is rare to use an incendiary to disburse 
such agents.