Portec, Inc. v. United States

Plaintiff brought these suits for a redeter-rnination of excessive profits found by the Renegotiation *620Board to have been received in 1966 and 1967, primarily on contracts for the sale of large rock crushers to the Army and Air Force. The jurisdiction of this court is founded on 50 App. U.S.C. § 1218 (Supp. II, 1972), providing for a de novo determination of the amount, if any, of excessive profits received by the claimant. While plaintiff states several bases on which it asks the court to find that it had no excessive profits, the only issue now before us on the parties’ cross-motions for partial summary judgment, see Buie 101(a), is whether plaintiff is entitled to the partial mandatory exemption for “durable productive equipment,” 50 App. U.S.C. § 1216(c) (1970), with respect to receipts from the rock crusher sales.1

The disagreement centers on whether the term “durable productive equipment,” defined in the statute as “machinery, tools or other productive equipment which has an average useful life of more than five years,” 50 App. U.S.C. § 1216 (c) (2) (1970),2 includes only manufacturing equipment or also covers other large capital equipment used in processing materials. While the Benegotiation Board in Benegotiation Bulletin No. 12, 32 C.F.R. § 1499.2-12 (1974), has since 1967 limited the exemption to strictly manufacturing items, we believe that the legislative history and the Congressional purpose require a broader interpretation.

The “durable productive equipment” exemption as first included in the 1951 Benegotiation Act covered only equipment sold by subcontractors to government contractors who *621neither included the equipment in the end-product sold to the United States nor acted as its purchasing agent. Renegotiation Act of 1951, ch. 15, § 106(c), 65 Stat. 18 (1951). The rationale for the exemption, as stated in the House and Senate hearings, the Senate report and the floor debates, was that, without a partial exemption, profits from the sale of large machinery purchased by contractors would be completely renegotiable even though the machines would be used on defense or government work only a small part of their useful lives. See Hearings on H.R. 9246 Before the House Comm. on Ways and Means, 81st Cong., 2d Sess. 201 (1950) ; Hearings on H.R. Before the Senate Finance Comm., 82d Cong., 1st Sess. 105-06 (1951) ; S. Rep. No. 92, 82d Cong., 1st Sess. 6-7 (1951) ; 97 Cong. Rec. 1326, 2254, 2275 (1951). This rationale is equally applicable to all large capital equipment used for processing, a point emphasized during the floor discussion when the Chairman of the Senate Finance Committee, Senator George, stated that the exemption “concerns long-lived machinery, tools and so forth * * 97 Cong. Rec. 1326 (1951). This legislative history, plus the broad wording of the Act itself ii.e. “durable productive equipment”), makes it clear to us that the exemption was, as passed in 1951, applicable to processing equipment of the kind now before us.3 And after the adoption of the exemption in 1951, the Renegotiation Board appears to have read it in this way for about a decade and one-half.4

The Government argues, however, that the 1954 amendments, Act of Sept. 1, 1954, ch. 1209, 68 Stat. 1116, making the exemption applicable to prime contractors like plaintiff, also narrowed the class of machinery to which the exemption is *622applicable. The purpose of the 1954 amendment, as expressed in the reports and debates, was to protect manufacturers whose equipment was stockpiled and resold by the Government, thereby reducing the market for future non-renegotiable commercial sales. S. Rep. No. 643, 83d Cong., 1st Sess. 3 (1953) ; 100 Cong. Rec. 14774 (1954). While the major stockpiling problem at the time was in machine tools, the debate and reports covered “machine tools and other productive equipment.” Ibid. The purpose of the 1954 amendment, like that of the original exemption, is broad enough to cover more than manufacturing machine tools.5 And in amending the provision, Congress did not change the definition section of the exemption to make it narrower.6 We can discern no other change in legislative focus which would constrict the Congressional concern from all durable processing or productive equipment to purely manufacturing machinery.7

We need not ponder whether the Board’s 1967 Bulletin No. 12 — limiting for the first time the “productive equipment” exemption to strictly manufacturing items — is entitled to the status of a full-fledged regulation. Even if it is, it cannot stand against the adverse weight of (a) the broad wording of the exemption plus (b) the clear Congressional purpose. In addition, the Bulletin plainly fails to have the cachet either of a contemporaneous construction (it was not adopted until 1967) or of a long-continued consistent interpretation by the administering agency (in the now relevant aspect, the Bulletin reversed a 15 or 16 year policy looking the other way).

*623For these reasons, we hold that plaintiff is entitled to the partial exemption and its motion to that effect is granted. The Government’s countervailing motion is denied. The case is remanded to the trial division for further proceedings consistent with this opinion.