[Federal Register: July 15, 2009 (Volume 74, Number 134)]
[Rules and Regulations]               
[Page 34265-34266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Defense Acquisition Regulations System

48 CFR Part 207

RIN 0750-AF39

Defense Federal Acquisition Regulation Supplement; Lease of 
Vessels, Aircraft, and Combat Vehicles (DFARS Case 2006-D013)

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Final rule.


SUMMARY: DoD has issued a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement statutory 
provisions relating to the leasing of vessels, aircraft, and combat 
vehicles. The rule applies to long-term leases and charters and to 
contracts with a substantial termination liability.

DATES: Effective Date: July 15, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Cassandra Freeman, Defense 
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 
3062 Defense Pentagon, Washington, DC 20301-3062. Telephone 703-602-
8383; facsimile 703-602-7887. Please cite DFARS Case 2006-D013.


A. Background

    10 U.S.C. 2401, as amended by Section 815 of the National Defense 
Authorization Act for Fiscal Year 2006 (Pub. L. 109-163), permits a 
military department to award a long-term lease or charter, or a 
contract with a substantial termination liability, for a vessel, 
aircraft, or combat vehicle, only if the Secretary of the military 
department is specifically authorized by law to award the contract and 
provides the appropriate notifications to the congressional defense 
    Prior to the enactment of Public Law 109-163, the provisions of 10 
U.S.C. 2401 applied to vessels and aircraft. Section 815 of Public Law 
109-163 amended 10 U.S.C. 2401 to also include combat vehicles.
    DoD published a proposed rule at 72 FR 28662 on May 22, 2007, to 
address the provisions of 10 U.S.C. 2401. Five sources submitted 
comments on the proposed rule. A discussion of the comments is provided 
    1. Comment: The proposed rule unduly applies its requirements to 
all leases and charters instead of only long-term leases and charters.
    DoD Response: The rule has been amended to clarify that its 
requirements apply only to long-term leases and charters, and to 
contracts that provide for a substantial termination liability, 
consistent with the statutory provisions.
    2. Comment: One respondent stated that the approval authority 
specified in the proposed rule (head of the agency) is not consistent 
with the approval authority specified in the statute (Secretary of the 
military department). Another respondent recommended delegation of the 
approval authority to the head of the contracting activity, to be 
consistent with the implementation of 10 U.S.C. 2401a at DFARS 207.470, 
for approval of leases and charters with terms of 18 months or more.
    DoD Response: The final rule specifies the Secretary of the 
military department as the approval authority, consistent with 10 
U.S.C. 2401. However, in accordance with FAR 1.108(b), the Secretary of 
the military department may delegate this authority as deemed 
    3. Comment: The term ``similar agreement'' should be deleted from 
the rule, since this term is not defined in the DFARS or in the 
    DoD Response: The term has been excluded from the final rule.
    4. Comment: The rule should identify under what circumstances DoD 
can lease vessels, aircraft, and combat vehicles and how the decision 
to lease should be determined. In addition, the rule should include the 
definitions of the terms ``long-term lease'' and ``substantial 
termination liability'' found in 10 U.S.C. 2401(d).
    DoD Response: The recommended changes have not been adopted. The 
rule is intended to inform contracting officers of the requirements of 
10 U.S.C. 2401, but is not intended to address all aspects of leasing. 
Leasing is a highly specialized area that requires close coordination 
between the contracting officer and legal counsel.

[[Page 34266]]

    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule primarily relates to DoD planning and budget 
considerations with regard to the leasing of vessels, aircraft, and 
combat vehicles.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply, because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Part 207

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR Part 207 is amended as follows:


1. The authority citation for 48 CFR Part 207 continues to read as 

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

2. Section 207.470 is amended as follows:
a. By redesignating paragraphs (a) and (b) as paragraphs (b) and (c) 
b. By adding a new paragraph (a); and
c. In newly designated paragraph (c), by removing ``Except as provided 
in paragraph (a) of this section'' and adding in its place ``Except as 
provided in paragraphs (a) and (b) of this section''.
    The new paragraph (a) reads as follows:

207.470   Statutory requirements.

    (a) Requirement for authorization of certain contracts relating to 
vessels, aircraft, and combat vehicles. The contracting officer shall 
not enter into any contract for the lease or charter of any vessel, 
aircraft, or combat vehicle, or any contract for services that would 
require the use of the contractor's vessel, aircraft, or combat 
vehicle, unless the Secretary of the military department concerned has 
satisfied the requirements of 10 U.S.C. 2401, when--
    (1) The contract will be a long-term lease or charter as defined in 
10 U.S.C. 2401(d)(1); or
    (2) The terms of the contract provide for a substantial termination 
liability as defined in 10 U.S.C. 2401(d)(2). Also see PGI 207.470.
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 [FR Doc. E9-16650 Filed 7-14-09; 8:45 am]