§2667. Leases: non-excess property of military departments

(a) Whenever the Secretary of a military department considers it advantageous to the United States, he may lease to such lessee and upon such terms as he considers will promote the national defense or be in the public interest, real or personal property that is-

(1) under the control of that department; and

(2) not excess property, as defined by section 3 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 472).

(b) A lease under subsection (a)-

(1) may not be for more than five years, unless the Secretary concerned determines that a lease for a longer period will promote the national defense or be in the public interest;

(2) may give the lessee the first right to buy the property if the lease is revoked to allow the United States to sell the property under any other provision of law;

(3) shall permit the Secretary to revoke the lease at any time, unless he determines that the omission of such a provision will promote the national defense or be in the public interest;

(4) shall provide for the payment (in cash or in kind) by the lessee of consideration in an amount that is not less than the fair market value of the lease interest, as determined by the Secretary; and

(5) may provide, notwithstanding section 321 of the Act of June 30, 1932 (40 U.S.C. 303b), or any other provision of law, for the alteration, repair, or improvement, by the lessee, of the property leased as the payment of part or all of the consideration for the lease.

(c)(1) In addition to any in-kind consideration accepted under subsection (b)(5), in-kind consideration accepted with respect to a lease under this section may include the following:

(A) Maintenance, protection, alteration, repair, improvement, or restoration (including environmental restoration) of property or facilities under the control of the Secretary concerned.

(B) Construction of new facilities for the Secretary concerned.

(C) Provision of facilities for use by the Secretary concerned.

(D) Facilities operation support for the Secretary concerned.

(E) Provision of such other services relating to activities that will occur on the leased property as the Secretary concerned considers appropriate.

(2) In-kind consideration under paragraph (1) may be accepted at any property or facilities under the control of the Secretary concerned that are selected for that purpose by the Secretary concerned.

(3) Sections 2662 and 2802 of this title shall not apply to any new facilities whose construction is accepted as in-kind consideration under this subsection.

(4) In the case of a lease for which all or part of the consideration proposed to be accepted by the Secretary concerned under this subsection is in-kind consideration with a value in excess of $500,000, the Secretary concerned may not enter into the lease until 30 days after the date on which a report on the facts of the lease is submitted to the congressional defense committees.

(d)(1)(A) The Secretary of a military department shall deposit in a special account in the Treasury established for such military department the following:

(i) All money rentals received pursuant to leases entered into by that Secretary under this section.

(ii) All proceeds received pursuant to the granting of easements by that Secretary under sections 2668 and 2669 of this title.

(iii) All proceeds received by that Secretary from authorizing the temporary use of other property under the control of that military department.

(B) Subparagraph (A) does not apply to the following proceeds:

(i) Amounts paid for utilities and services furnished lessees by the Secretary of a military department pursuant to leases entered into under this section.

(ii) Money rentals referred to in paragraph (4) or (5).

(C) Subject to subparagraphs (D) and (E), the proceeds deposited in the special account of a military department pursuant to subparagraph (A) shall be available to the Secretary of that military department, in such amounts as provided in appropriation Acts, for the following:

(i) Maintenance, protection, alteration, repair, improvement, or restoration (including environmental restoration) of property or facilities.

(ii) Construction or acquisition of new facilities.

(iii) Lease of facilities.

(iv) Facilities operation support.

(D) At least 50 percent of the proceeds deposited in the special account of a military department under subparagraph (A) shall be available for activities described in subparagraph (C) only at the military installation where the proceeds were derived.

(E) The Secretary concerned may not expend under subparagraph (C) an amount in excess of $500,000 at a single installation until 30 days after the date on which a report on the facts of the proposed expenditure is submitted to the congressional defense committees.

(2) Payments for utilities and services furnished lessees pursuant to leases entered into under this section shall be credited to the appropriation account or working capital fund from which the cost of furnishing the utilities and services was paid.

(3) Not later than March 15 each year, the Secretary of Defense shall submit to the congressional defense committees a report which shall include-

(A) an accounting of the receipt and use of all money rentals that were deposited and expended under this subsection during the fiscal year preceding the fiscal year in which the report is made; and

(B) a detailed explanation of each lease entered into, and of each amendment made to existing leases, during such preceding fiscal year.

(4) Money rentals received by the United States directly from a lease under this section for agricultural or grazing purposes of lands under the control of the Secretary of a military department (other than lands acquired by the United States for flood control or navigation purposes or any related purpose, including the development of hydroelectric power) may be retained and spent by the Secretary concerned in such amounts as the Secretary considers necessary to cover the administrative expenses of leasing for such purposes and to cover the financing of multiple-land use management programs at any installation under the jurisdiction of the Secretary.

(5) Money rentals received by the United States from a lease under subsection (f) shall be deposited into the account established under section 2906(a) of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).

(e) The interest of a lessee of property leased under this section may be taxed by State or local governments. A lease under this section shall provide that, if and to the extent that the leased property is later made taxable by State or local governments under an Act of Congress, the lease shall be renegotiated.

(f)(1) Notwithstanding subsection (a)(3) ¹ or the Federal Property and Administrative Services Act of 1949 (to the extent such Act is inconsistent with this subsection), pending the final disposition of real property and personal property located at a military installation to be closed or realigned under a base closure law, the Secretary of the military department concerned may lease the property to any individual or entity under this subsection if the Secretary determines that such a lease would facilitate State or local economic adjustment efforts.

(2) Notwithstanding subsection (b)(4), the Secretary concerned may accept consideration in an amount that is less than the fair market value of the lease interest if the Secretary concerned determines that-

(A) a public interest will be served as a result of the lease; and

(B) the fair market value of the lease is (i) unobtainable, or (ii) not compatible with such public benefit.

(3) Before entering into any lease under this subsection, the Secretary shall consult with the Administrator of the Environmental Protection Agency in order to determine whether the environmental condition of the property proposed for leasing is such that the lease of the property is advisable. The Secretary and the Administrator shall enter into a memorandum of understanding setting forth procedures for carrying out the determinations under this paragraph.

(4)(A) Notwithstanding the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the scope of any environmental impact analysis necessary to support an interim lease of property under this subsection shall be limited to the environmental consequences of activities authorized under the proposed lease and the cumulative impacts of other past, present, and reasonably foreseeable future actions during the period of the proposed lease.

(B) Interim leases entered into under this subsection shall be deemed not to prejudice the final disposal decision with respect to the property, even if final disposal of the property is delayed until completion of the term of the interim lease. An interim lease under this subsection shall not be entered into without prior consultation with the redevelopment authority concerned.

(C) Subparagraphs (A) and (B) shall not apply to an interim lease under this subsection if authorized activities under the lease would-

(i) significantly affect the quality of the human environment; or

(ii) irreversibly alter the environment in a way that would preclude any reasonable disposal alternative of the property concerned.

(g)(1) If a proposed lease under subsection (a) involves only personal property, the lease term exceeds one year, and the fair market value of the lease interest exceeds $100,000, as determined by the Secretary concerned, the Secretary shall use competitive procedures to select the lessee.

(2) Not later than 45 days before entering into a lease described in paragraph (1), the Secretary concerned shall submit to Congress written notice describing the terms of the proposed lease and the competitive procedures used to select the lessee.

(h) In this section:

(1) The term "congressional defense committees" means:

(A) The Committee on Armed Services and the Committee on Appropriations of the Senate.

(B) The Committee on Armed Services and the Committee on Appropriations of the House of Representatives.

(2) The term "base closure law" means the following:

(A) Section 2687 of this title.

(B) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).

(C) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).

(3) The term "military installation" has the meaning given such term in section 2687(e)(1) of this title.

(i) This section does not apply to oil, mineral, or phosphate lands.

(Aug. 10, 1956, ch. 1041, 70A Stat. 150 ; Pub. L. 94–107, title VI, §607(7), Oct. 7, 1975, 89 Stat. 566 ; Pub. L. 94–412, title V, §501(b), Sept. 14, 1976, 90 Stat. 1258 ; Pub. L. 96–513, title V, §511(92), Dec. 12, 1980, 94 Stat. 2928 ; Pub. L. 97–295, §1(34), Oct. 12, 1982, 96 Stat. 1296 ; Pub. L. 97–321, title VIII, §803, Oct. 15, 1982, 96 Stat. 1572 ; Pub. L. 101–510, div. B, title XXVIII, §2806, Nov. 5, 1990, 104 Stat. 1787 ; Pub. L. 102–190, div. B, title XXVIII, §2862, Dec. 5, 1991, 105 Stat. 1559 ; Pub. L. 102–484, div. B, title XXVIII, §2851, Oct. 23, 1992, 106 Stat. 2625 ; Pub. L. 103–160, div. B, title XXIX, §2906, Nov. 30, 1993, 107 Stat. 1920 ; Pub. L. 104–106, div. A, title XV, §1502(a)(1), div. B, title XXVIII, §§2831(a), 2832, 2833, Feb. 10, 1996, 110 Stat. 502 , 558, 559; Pub. L. 105–85, div. A, title III, §361(b)(2), title X, §1061(a)–(c)(1), Nov. 18, 1997, 111 Stat. 1701 , 1891; Pub. L. 105–261, div. B, title XXVIII, §2821, Oct. 17, 1998, 112 Stat. 2208 ; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774 ; Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(a)–(e)], Oct. 30, 2000, 114 Stat. 1654 , 1654A-416 to 1654A-418.)

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
2667(a)     2667(b)	5:626s–3 (1st sentence). 10:1270 (1st sentence). 34:522a (1st sentence). 5:626s–3 (2d through 6th sentences). 10:1270 (2d through 6th sentences).	Aug. 5, 1947, ch. 493, §§1, 6, 61 Stat. 774 , 775; Sept. 28, 1951, ch. 434. §605 (as applicable to Act of Aug. 5, 1947, ch. 493, §1), 65 Stat. 366 .
	34:522a (2d through 6th sentences).
2667(c)	5:626s–3 (last sentence).
	10:1270 (last sentence).
	34:522a (last sentence).
2667(d)	5:626s–3 (less 1st 6 sentences).
	10:1270 (less 1st 6 sentences).
	34:522a (less 1st 6 sentences).
2667(e)	5:626s–6. 10:1270d. 34:522e.

In subsection (a), the words "considers * * * United States" are substituted for the words "shall deem * * * Government". The words "and conditions" are omitted as surplusage. The words "he considers" are substituted for the words "in his judgment".

In subsection (a)(3), the words "excess property, as defined by section 472 of title 40" are substituted for the words "surplus to the needs of the Department within the meaning of the Surplus Property Act of 1944 [Act of October 3, 1944 (58 Stat. 765)]", in 5:626s–3, 10:1270, and 34:522a, since the words "excess property" are so defined by the Federal Property and Administrative Services Act of 1949.

In subsection (b)(2), the words "may give" are substituted for the first 12 words of the third sentence of 5:626s–3, 10:1270, and 34:522a. The words "if the lease is revoked to allow the United States to sell the property" are substituted for the words "in the event of the revocation of the lease in order to permit sale thereof by the Government". The words "under any other provision of law" are inserted for clarity. The words "the first right to buy" are substituted for the words "a right of first refusal". The words "but this section shall not be construed as authorizing the sale of any property unless the sale thereof is otherwise authorized by law" are omitted as surplusage, since the revised section deals only with leases of property.

In subsection (b)(3), the words "must permit" are substituted for the words "Each such lease shall contain a provision permitting". The words "from the lease" are omitted as surplusage.

In subsection (b)(5), the words "any such lease" and "of such property" are omitted as surplusage.

In subsection (c), the words "This section does" are substituted for the words "The authority herein granted shall".

In subsection (e), the words "of property" are inserted for clarity. The words "leased under" are substituted for the words "made or created pursuant to". The words "may be taxed by State or local governments" are substituted for the words "shall be made subject to State or local taxation". The last sentence is substituted for the last sentence of 5:626s–6, 10:1270d, and 34:522e.

References in Text

Subsection (a)(3), referred to in subsec. (f)(1), was redesignated subsec. (a)(2) of this section by Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(a)(3)], Oct. 30, 2000, 114 Stat. 1654 , 1654A-416.

The Federal Property and Administrative Services Act of 1949, referred to in subsec. (f)(1), is act June 30, 1949, ch. 288, 63 Stat. 377 , as amended. Provisions of that Act relating to management and disposal of Government property are classified to chapter 10 (§471 et seq.) of Title 40, Public Buildings, Property, and Works. For complete classification of this Act to the Code, see Short Title note set out under section 471 of Title 40 and Tables.

The National Environmental Policy Act of 1969, referred to in subsec. (f)(4)(A), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852 , as amended, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

Amendments

2000-Subsec. (a). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(a)], inserted "and" at end of par. (1), redesignated par. (3) as (2), and struck out former par. (2) which read as follows: "not for the time needed for public use; and".

Subsec. (b)(5). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(b)(1)], substituted "alteration, repair, or improvement," for "improvement, maintenance, protection, repair, or restoration," and struck out ", or of the entire unit or installation where a substantial part of it is leased," after "of the property leased".

Subsec. (c). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(b)(3)], added subsec. (c). Former subsec. (c) redesignated (i).

Subsec. (d)(1). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(c)], amended par. (1) generally. Prior to amendment, par. (1) read as follows:

"(1)(A) All money rentals received pursuant to leases entered into by the Secretary of a military department under this section shall be deposited in a special account in the Treasury established for such military department, except-

"(i) amounts paid for utilities and services furnished lessees by the Secretary; and

"(ii) money rentals referred to in paragraph (4) or (5).

"(B) Sums deposited in a military department's special account pursuant to subparagraph (A) shall be available to such military department, as provided in appropriation Acts, as follows:

"(i) 50 percent of such amount shall be available for facility maintenance and repair or environmental restoration at the military installation where the leased property is located.

"(ii) 50 percent of such amount shall be available for facility maintenance and repair and for environmental restoration by the military department concerned."

Subsec. (d)(3). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(d)(1)], substituted "Not later than March 15 each year, the Secretary of Defense shall submit to the congressional defense committees a report which" for "As part of the request for authorizations of appropriations submitted to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives for each fiscal year, the Secretary of Defense" in introductory provisions.

Subsec. (d)(3)(A). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(d)(2)], substituted "report" for "request".

Subsec. (f)(4), (5). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(b)(4)], redesignated par. (5) as (4) and struck out former par. (4) which read as follows: "The Secretary concerned may accept under subsection (b)(5) services of a lessee for an entire installation to be closed or realigned under a base closure law, or for any part of such installation, without regard to the requirement in subsection (b)(5) that a substantial part of the installation be leased."

Subsec. (h). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(e)], amended subsec. (h) generally. Prior to amendment, subsec. (h) read as follows: "In this section, the term 'base closure law' means each of the following:

"(1) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).

"(2) Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687 note).

"(3) Section 2687 of this title."

Subsec. (i). Pub. L. 106–398, §1 [div. B, title XXVIII, §2812(b)(2)], redesignated subsec. (c) as (i).

1999-Subsec. (d)(3). Pub. L. 106–65 substituted "and the Committee on Armed Services" for "and the Committee on National Security" in introductory provisions.

1998-Subsec. (f)(1). Pub. L. 105–261 inserted "or the Federal Property and Administrative Services Act of 1949 (to the extent such Act is inconsistent with this subsection)".

1997-Pub. L. 105–85, §1061(c)(1), inserted "of military departments" after "property" in section catchline.

Subsec. (b)(4). Pub. L. 105–85, §1061(a), struck out ", in the case of the lease of real property," after "shall provide".

Subsec. (d)(2). Pub. L. 105–85, §361(b)(2), inserted "or working capital fund" before "from which".

Subsecs. (g), (h). Pub. L. 105–85, §1061(b), added subsec. (g) and redesignated former subsec. (g) as (h).

1996-Subsec. (d)(1)(A)(ii). Pub. L. 104–106, §2831(a)(1), inserted "or (5)" after "paragraph (4)".

Subsec. (d)(3). Pub. L. 104–106, §1502(a)(1), substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

Subsec. (d)(5). Pub. L. 104–106, §2831(a)(2), added par. (5).

Subsec. (f)(4). Pub. L. 104–106, §2832, added par. (4).

Subsec. (f)(5). Pub. L. 104–106, §2833, added par. (5).

1993-Subsec. (f). Pub. L. 103–160, §2906(a), amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: "Notwithstanding clause (3) of subsection (a), real property and associated personal property, which have been determined excess as the result of a defense installation realignment or closure, may be leased to State or local governments pending final disposition of such property if-

"(1) the Secretary concerned determines that such action would facilitate State or local economic adjustment efforts, and

"(2) the Administrator of General Services concurs in the action."

Subsec. (g). Pub. L. 103–160, §2906(b), added subsec. (g).

1992-Subsec. (b)(4). Pub. L. 102–484 inserted ", in the case of the lease of real property," after "shall provide".

1991-Subsec. (b)(3). Pub. L. 102–190, §2862(a)(1), substituted "shall permit" for "must permit" and struck out "and" at end.

Subsec. (b)(4). Pub. L. 102–190, §2862(a)(2), (3), added par. (4) and redesignated former par. (4) as (5).

Subsec. (b)(5). Pub. L. 102–190, §2862(a)(2), (4), redesignated par. (4) as (5) and inserted "improvement," before "maintenance" and "the payment of" before "part or all".

Subsec. (d)(3). Pub. L. 102–190, §2862(b), redesignated subpar. (B) as par. (3), substituted "As part of the request for authorizations of appropriations submitted to the Committees on Armed Services of the Senate and House of Representatives for each fiscal year" for "As part of the request for authorizations of appropriations to such Committees for each fiscal year after fiscal year 1992", redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively, and struck out former subpar. (A) which read as follows: "As part of the request for authorizations of appropriations for fiscal year 1992 to the Committees on Armed Services of the Senate and of the House of Representatives, the Secretary of Defense shall include an explanation of each lease from which money rentals will be received and deposited under this subsection during fiscal year 1991, together with an estimate of the amount to be received from each such lease and an explanation of the anticipated expenditures of such receipts."

1990-Subsec. (d). Pub. L. 101–510 added pars. (1) to (3), redesignated former par. (2) as (4), and struck out former par. (1) which read as follows: "Except as provided in paragraph (2), money rentals received by the United States directly from a lease under this section shall be covered into the Treasury as miscellaneous receipts. Payments for utilities or services furnished to the lessee under such a lease by the department concerned may be covered into the Treasury to the credit of the appropriation from which the cost of furnishing them was paid."

1982-Subsec. (b)(4). Pub. L. 97–295 substituted "of" for "entitled 'An Act making appropriations for the Legislative Branch of the Government for the fiscal year ending June 30, 1933, and for other purposes', approved" after "section 321 of the Act".

Subsec. (d). Pub. L. 97–321 designated existing provisions as par. (1), substituted "Except as provided in paragraph (2), money" for "Money", and added par. (2).

1980-Subsec. (a)(3). Pub. L. 96–513, §511(92)(A), substituted "section 3 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 472)" for "section 472 of title 40".

Subsec. (b)(4). Pub. L. 96–513, §511(92)(B), substituted "section 321 of the Act entitled 'An act making appropriations for the Legislative Branch of the Government for the fiscal year ending June 30, 1933, and for other purposes', approved June 30, 1932 (40 U.S.C. 303b)," for "section 303b of title 40".

Subsec. (e). Pub. L. 96–513, §511(92)(C), substituted "Act" for "act".

Subsec. (f). Pub. L. 96–513, §511(92)(D), substituted "the Secretary" for "The Secretary", and substituted "the Administrator of General Services" for "The Administrator of the General Services Administration".

1976-Subsec. (b)(4), (5). Pub. L. 94–412 struck out par. (4) which required leases of nonexcess property of a military department include a provision making the lease revocable during a national emergency declared by the President, and redesignated par. (5) as (4).

1975-Subsec. (f). Pub. L. 94–107 added subsec. (f).

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.

Savings Provision

Amendment by Pub. L. 94–412 not to affect any action taken or proceeding pending at the time of amendment, see section 501(h) of Pub. L. 94–412, set out as a note under section 1601 of Title 50, War and National Defense.

Leasing of Defense Property; Notification of Congress; Waiver; Report to Congress; Definition

Pub. L. 96–533, title I, §109(a)–(e), Dec. 16, 1980, 94 Stat. 3137 , provided that before the Secretary of a military department exercised his authority under section 2667 of title 10, United States Code, in order to lease defense property to a foreign government for a period of more than six months, the President had to transmit to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate, a written notification of the particulars of the proposed lease, prior to repeal by Pub. L. 97–113, title I, §109(d)(1), Dec. 29, 1981, 95 Stat. 1526 . See section 2795 et seq. of Title 22, Foreign Relations and Intercourse.

Section Referred to in Other Sections

This section is referred to in sections 2474, 2490a, 2668, 2669, 2814, 2878 of this title; title 16 section 670a; title 22 section 2796.

¹ See References in Text note below.