BNUMBER: B-260748
DATE: September 19, 1995
TITLE: Tri-State Motor Transit Company
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Matter of:Tri-State Motor Transit Company
File: B-260748
Date: September 19, 1995
DIGEST
Under item 325(1)(c) of the Military Traffic Management Command's
Freight Traffic Rules Publication 1A, the Department of Defense is
charged for a minimum of 5,000 pounds when it ships a lesser amount of
"initiating or priming explosives, wet . . . ." Thus, when the Army
shipped 10.2 pounds of an article that it described on the government
bill of lading (GBL) as "CLASS A-EXPLOSIVE-INITIATING
EXPLOSIVE-DANGEROUS-DO NOT STORE OR LOAD WITH HIGH EXPLOSIVES," and
there is nothing in the record suggesting that the article did not
meet the definition of a Class A initiating explosive described in
title 49, Code of Federal Regulations (49 C.F.R.), 173.70 through
173.78, it is reasonable to conclude that the article shipped was such
an initiating explosive. It was not necessary to include the word
"wet" in the GBL description because, generally, the substances listed
in 49 C.F.R. 173.70 through 173.78 cannot be transported in a dry
condition.
DECISION
Tri-State Motor Transit Company, requests that we review the General
Services Administration's (GSA) denial of its claim for $643.75 as an
additional charge in government bill of lading (GBL) transaction
D-0,718,670. We reverse GSA's settlement.
The facts are not in dispute. On June 5, 1990, Picatinny Arsenal in
New Jersey, tendered a shipment weighing 10.2 pounds to Tri-State for
dromedary transportation service to Englewood, Colorado. The GBL
described the article shipped as "CLASS A-EXPLOSIVE-INITIATING
EXPLOSIVE-DANGEROUS-DO NOT STORE OR LOAD WITH HIGH EXPLOSIVES."
Tri-State argues that under item 325(1)(c) of the Military Traffic
Management Command's (MTMC) Freight Traffic Rules Publication 1A
(MFTRP 1A), it is entitled to rate this dromedary shipment as a
minimum 5,000 pound shipment. At the time of shipment, Item 325(1)(c)
(2d Rev. page 89) stated:
"c. Dromedary service will be subject to line-haul rates
alternating between the lower minimum weight of 2,500 pounds and
the higher minimum weight of 5,000 pounds. Shipments of white
phosphorus or, initiating or priming explosives, wet:
Diazodinitrophenol, fulminate of mercury, guanyl, nitrosamino
guanylidene hydrazine, lead azide, lead styphnate, nitro mannite,
nitrosoguanidine, pentaerythrite tetranitrate, tetrazene, lead
mononitroresorcinate, will be subject to a line-haul minimum
weight of 5,000 pounds or actual weight, if greater, at the 5,000
pound tender rate. (See Note 3)."
Note 3 after item 325(3)(c) of MFTRP 1A involved the minimum weight
for a shipment of a commodity with additional descriptive information
following its hazardous material description which identified it as
"chemical ammunition with incendiary charges or white phosphorus."
In its administrative report, GSA stated that our reconsideration of
Tri-State Motor Transit Company, B-253293 et al., Dec. 10, 1993, would
be dispositive of the issue here. Otherwise, in its Settlement
Certificate, GSA denied Tri-State's claim, noting that item 325(1)(c)
involved shipments of initiating or priming explosives, wet, while the
shipment in issue involved Class A Explosive-Initiating Explosive.
MTMC stated that the 5,000 pound minimum weight charge did apply to
the commodity shipped here even though it did not include the word
"wet" in the commodity description "because 'dry' cannot be
transported or tendered for shipment."
The issue here is distinguishable from the one we are reconsidering in
B-253293.2 et al. Our reconsideration, B-253293.2 et al., involves
the interpretation of Note 3, particularly, whether certain
commodities were "chemical ammunition with incendiary charges or white
phosphorus." Nothing indicates that the commodity here involves
"chemical ammunition with incendiary charges or white phosphorus;"
therefore, Note 3 is not involved. The issue is whether "CLASS
A-EXPLOSIVE-INITIATING EXPLOSIVE," as described on the GBL, is a
shipment of "initiating or priming explosives, wet."
In our view, the record supports the conclusion reached by MTMC that
the commodity shipped was "initiating or priming explosives, wet" as
described in item 325(1)(c). The description of an article on a GBL
is prima facie correct. See Yellow Freight System, Inc., B-197298,
Sept. 12, 1980, 80-2 CPD 193 and Yellow Freight System, Inc.,
B-192872, May 7, 1979. This rule does not apply when the carrier or
the government demonstrate that something different was shipped or
when the GBL description was ambiguous (e.g., pertinent classification
characteristics were missing). Id. But, in this case, the only issue
raised by GSA in its audit was whether the minimum weight provision
applied to all initiating explosives, "wet" or otherwise.
The Hazardous Materials Regulations in effect at the time of shipment,
title 49, Code of Federal Regulations (49 C.F.R.), particularly
173.70 through 173.78 (1989) relate to the specific types of Class A
initiating explosives named in item 325(1)(c). These regulations
support the general prohibition against transporting the initiating
explosives listed in item 325(1)(c) in a dry condition. They also
required the marking of the container holding the named initiating
explosives with "INITIATING EXPLOSIVE-DANGEROUS-DO NOT STORE OR LOAD
WITH ANY HIGH EXPLOSIVE." The notation on the GBL involved here is
nearly identical to the regulatory marking requirements. Thus, the
GBL description and associated notation suggests that the article
involved one of the initiating explosive substances described in 49
C.F.R. 173.70 through 173.78 and that by item 325(1)(c), MTMC
intended to apply a 5,000 pound minimum weight when the Department of
Defense shipped one of these substances.
In the absence of something on the record to suggest a reasonable
basis for questioning whether the article shipped was, in fact, an
initiating explosive, we conclude that the GBL did justify it. GSA's
settlement is reversed and the claim is allowed.
/s/Seymour Efros
for Robert P. Murphy
General Counsel