In re Tri-State Motor Transit Co.

Decision Date16 November 1995
Docket NumberB-254374.2,B-253293.2,B-254375.2,B-254381.2
PartiesMatter of: Tri-State Motor Transit Company-Reconsideration
CourtComptroller General of the United States

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. Sec. 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. Sec. 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. Sec. 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...

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