SUBCHAPTER I—DEFENSE COMMISSARY AND EXCHANGE SYSTEMS
2481.
Defense commissary and exchange systems: existence and purpose.
2482.
Commissary stores: criteria for establishment or closure; store size.
2483.
Commissary stores: use of appropriated funds to cover operating expenses.
2484.
Commissary stores: merchandise that may be sold; uniform surcharges and pricing.
2485.
Commissary stores: operation.
Editorial Notes
Amendments
2006—Pub. L. 109–364, div. A, title X, §1071(a)(18), Oct. 17, 2006, 120 Stat. 2399, inserted period at end of item 2481.
2004—Pub. L. 108–375, div. A, title VI, §651(a)(3), Oct. 28, 2004, 118 Stat. 1964, added subchapter heading and items 2481 to 2485.
§2481. Defense commissary and exchange systems: existence and purpose
(a) Separate Systems.—The Secretary of Defense shall operate, in the manner provided by this chapter and other provisions of law, a world-wide system of commissary stores and a separate world-wide system of exchange stores. The stores of each system may sell, at reduced prices, food and other merchandise to members of the uniformed services on active duty, members of the uniformed services entitled to retired pay, dependents of such members, and persons authorized to use the system under chapter 54 of this title. Any reference in this chapter to "the exchange system" shall be treated as referring to each separate administrative entity within the Department of Defense through which the Secretary has implemented the requirement under this subsection for a world-wide system of exchange stores.
(b) Purpose of Systems.—The defense commissary system and the exchange system are intended to enhance the quality of life of members of the uniformed services, retired members, and dependents of such members, and to support military readiness, recruitment, and retention.
(c) Oversight.—(1) The Secretary of Defense shall designate a senior official of the Department of Defense to oversee the operation of both the defense commissary system and the exchange system.
(2) The Secretary of Defense shall establish an executive governing body to provide advice to the senior official designated under paragraph (1) regarding the operation of the defense commissary and exchange systems and to ensure the complementary operation of the systems.
(3)(A) The Secretary of Defense shall develop and implement a comprehensive strategy to optimize management practices across the defense commissary system and the exchange system that reduce reliance of those systems on appropriated funding without reducing benefits to the patrons of those systems or the revenue generated by nonappropriated fund entities or instrumentalities of the Department of Defense for the morale, welfare, and recreation of members of the armed forces.
(B) The Secretary shall ensure that savings generated due to such optimization practices are shared by the defense commissary system and the exchange system through contracts or agreements that appropriately reflect the participation of the systems in the development and implementation of such practices.
(C) If the Secretary determines that the reduced reliance on appropriated funding pursuant to subparagraph (A) is insufficient to maintain the benefits to the patrons of the defense commissary system, and if the Secretary converts the defense commissary system to a nonappropriated fund entity or instrumentality pursuant to paragraph (1) of section 2484(j) of this title, the Secretary shall transfer appropriated funds pursuant to paragraph (2) of such section to ensure the maintenance of such benefits.
(4) On not less than a quarterly basis, the Secretary shall provide to the congressional defense committees a briefing on the defense commissary system, including—
(A) an assessment of the savings the system provides patrons;
(B) the status of implementing section 2484(i) of this title;
(C) the status of implementing section 2484(j) of this title, including whether the system requires any appropriated funds pursuant to paragraph (2) of such section;
(D) the status of carrying out a program for such system to sell private label merchandise; and
(E) any other matters the Secretary considers appropriate.
(d) Reduced Prices Defined.—In this section, the term "reduced prices" means prices for food and other merchandise determined using the price setting process specified in section 2484 of this title.
(Added Pub. L. 108–375, div. A, title VI, §651(a)(3), Oct. 28, 2004, 118 Stat. 1965; amended Pub. L. 114–328, div. A, title VI, §661(a), (f), Dec. 23, 2016, 130 Stat. 2169, 2172.)
Editorial Notes
Prior Provisions
A prior section 2481, added Pub. L. 108–136, div. A, title VI, §652(a), Nov. 24, 2003, 117 Stat. 1522, related to the existence of defense commissary system and exchange stores system, prior to repeal by Pub. L. 108–375, div. A, title VI, §651(a)(1), Oct. 28, 2004, 118 Stat. 1964.
Another prior section 2481 was renumbered section 2686 of this title.
Amendments
2016—Subsec. (a). Pub. L. 114–328, §661(f), inserted at end " Any reference in this chapter to 'the exchange system' shall be treated as referring to each separate administrative entity within the Department of Defense through which the Secretary has implemented the requirement under this subsection for a world-wide system of exchange stores."
Subsec. (c)(3), (4). Pub. L. 114–328, §661(a), added pars. (3) and (4).
Statutory Notes and Related Subsidiaries
Defense Resale System Matters
Pub. L. 116–92, div. A, title VI, §631(a)–(c), Dec. 20, 2019, 133 Stat. 1429, as amended by Pub. L. 118–31, div. A, title IX, §901(g), Dec. 22, 2023, 137 Stat. 355, provided that:
"(a) In General.—The Under Secretary of Defense for Personnel and Readiness shall maintain oversight of business transformation efforts of the defense commissary system and the exchange stores system in order to ensure the following:
"(1) Development of an intercomponent business strategy that maximizes efficiencies and results in a viable defense resale system in the future.
"(2) Preservation of patron savings and satisfaction from and in the defense commissary system and exchange stores system.
"(3) Sustainment of financial support of the defense commissary and exchange systems for morale, welfare, and recreation (MWR) services of the Armed Forces.
"(b) Executive Resale Board Advice on Operations of Systems.—The Executive Resale Board of the Department of Defense shall advise the Under Secretary on the implementation of sustainable, complementary operations of the defense commissary system and the exchange stores system.
"(c) Information Technology Modernization.—The Secretary of Defense shall, acting through the Under Secretary and with advice from the Executive Resale Board, require the Defense Commissary Agency and the Military Exchange Service to do as follows:
"(1) Field new technologies and best business practices for information technology for the defense resale system.
"(2) Implement cutting-edge marketing opportunities across the defense resale system."
Plan To Obtain Budget-Neutrality for the Defense Commissary System and the Military Exchange System
Pub. L. 114–92, div. A, title VI, §651, Nov. 25, 2015, 129 Stat. 854, provided that:
"(a) In General.—Not later than March 1, 2016, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth a comprehensive plan to achieve by October 1, 2018, budget-neutrality in the delivery of commissary and exchange benefits while meeting the benchmarks set forth in subsection (c). In preparing the report, the Secretary shall consider the report required by section 634 of the Carl Levin and Howard P. 'Buck' McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 128 Stat. 3406) and any other previous reports, studies, and surveys of matters appropriate to the report.
"(b) Report Elements.—The report required by subsection (a) shall include the following:
"(1) A description of any modifications to the commissary and exchange benefit systems the Secretary considers appropriate to obtain budget-neutrality in the delivery of commissary and exchange benefits, including the following:
"(A) The establishment of common business processes, practices, and systems to exploit synergies between the operations of defense commissaries and exchanges and to optimize the operations of the resale system and the benefits provided by the commissaries and exchanges.
"(B) The privatization of the defense commissary system and the military exchange system, in whole or in part.
"(C) Engagement of major commercial grocery retailers or other private sector entities to determine their willingness to provide eligible beneficiaries with discount savings on grocery products and certain household goods.
"(D) The closure of commissaries in locations in close proximity to other commissaries or in locations where commercial alternatives, through major grocery retailers, may be available.
"(2) An analysis of different pricing constructs to improve or enhance the delivery of commissary and exchange benefits.
"(3) A description of the impact of any modifications described pursuant to paragraph (1) on Morale, Welfare and Recreation (MWR) quality-of-life programs.
"(4) Such recommendations for legislative action as the Secretary considers appropriate to achieve by October 1, 2018, budget-neutrality in the delivery of commissary and exchange benefits while meeting the benchmarks set forth in subsection (c).
"(c) Benchmarks.—The report required by subsection (a) shall ensure—
"(1) the maintenance of high levels of customer satisfaction in the delivery of commissary and exchange benefits;
"(2) the provision of high quality products; and
"(3) the sustainment of discount savings to eligible beneficiaries.
"(d) Comptroller General Assessment of Plan.—Not later than 120 days after the submittal of the report required by subsection (a), the Comptroller General of the United States shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth an assessment by the Comptroller General of the plan to achieve budget-neutrality in the delivery of commissary and exchange benefits while meeting the benchmarks set forth in subsection (c) as set forth in the report required by subsection (a).
"(e) Pilot Programs.—
"(1) Programs authorized.—After the reports required by subsections (a) and (d) have been submitted as described in such subsections, the Secretary may, notwithstanding any requirement in chapter 147 of title 10, United States Code, conduct one or more pilot programs to evaluate the feasibility and advisability of processes and methods for achieving budget-neutrality in the delivery of commissary and exchange benefits and other applicable benchmarks in accordance with this section. The Secretary may authorize any commissary or exchange, or private sector entity, participating in any such pilot program to establish appropriate prices in response to market conditions and customer demand, provided that the level of savings required by paragraph (3) is maintained.
"(2) Benchmarks.—If the Secretary conducts a pilot program under this subsection, the Secretary shall establish specific, measurable benchmarks for measuring success in the provision of high quality grocery goods and products, discount savings to patrons, and high levels of customer satisfaction while achieving budget-neutrality in the delivery of commissary and exchange benefits under the pilot program.
"(3) Required savings to patrons.—The Secretary shall ensure that the level of savings to commissary and exchange patrons under any pilot program under this subsection is not less than the level of savings to such patrons before the implementation of such pilot program, as follows:
"(A) Before commencing a pilot program the Secretary shall establish a baseline of savings to patrons achieved for each commissary or exchange to participate in such pilot program by comparing prices charged by such commissary or exchange for a representative market basket of goods to prices charged by local competitors for the same market basket of goods.
"(B) After commencement of such pilot program, the Secretary shall ensure that each commissary or exchange, or private sector entity, participating in such pilot program conducts market-basket price comparisons not less than once a month and adjusts pricing as necessary to ensure that pricing achieves savings to patrons under such pilot program that are reasonably consistent with the baseline savings for the commissary or exchange established pursuant to subparagraph (A).
"(4) Duration of authority.—The authority of the Secretary to carry out a pilot program under this subsection shall expire on the date that is five years after the date of the enactment of this Act [Nov. 25, 2015]. However, if a pilot program achieves budget-neutrality in the delivery of commissary and exchange benefits and other applicable benchmarks, as measured using the benchmarks required by paragraph (2), the Secretary may continue the pilot program for an additional period of up to five years.
"(5) Reports.—
"(A) Initial reports.—If the Secretary conducts a pilot program under this subsection, the Secretary shall, not later than 30 days before commencing the pilot program, submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the pilot program, including the following:
"(i) A description of the pilot program.
"(ii) The provisions, if any, of chapter 147 of title 10, United States Code, that will be waived in the conduct of the pilot program.
"(B) Final reports.—Not later than 90 days after the date of the completion of any pilot program under this subsection or the date of the commencement of an extension of a pilot program under paragraph (4), the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the pilot program, including the following:
"(i) A description and assessment of the pilot program.
"(ii) Such recommendations for administrative or legislative action as the Secretary considers appropriate in light of the pilot program."
§2482. Commissary stores: criteria for establishment or closure; store size
(a) Primary Consideration for Establishment.—The needs of members of the armed forces on active duty and the needs of dependents of such members shall be the primary consideration whenever the Secretary of Defense—
(1) assesses the need to establish a commissary store; and
(2) selects the actual location for the store.
(b) Store Size.—In determining the size of a commissary store, the Secretary of Defense shall take into consideration the number of all authorized patrons of the defense commissary system who are likely to use the store.
(c) Closure Considerations.—(1) Whenever assessing whether to close a commissary store, the effect of the closure on the quality of life of members and dependents referred to in subsection (a) who use the store and on the welfare and security of the military community in which the commissary is located shall be a primary consideration.
(2) Whenever assessing whether to close a commissary store, the Secretary of Defense shall also consider the effect of the closure on the quality of life of members of the reserve components of the armed forces.
(d) Congressional Notification.—(1) The closure of a commissary store in the United States shall not take effect until the end of the 90-day period beginning on the date on which the Secretary of Defense submits to Congress written notice of the reasons supporting the closure. The written notice shall include an assessment of the impact closure will have on the quality of life for military patrons and the welfare and security of the military community in which the commissary is located.
(2) Paragraph (1) shall not apply in the case of the closure of a commissary store as part of the closure of a military installation under a base closure law.
(Added Pub. L. 108–375, div. A, title VI, §651(a)(3), Oct. 28, 2004, 118 Stat. 1965; amended Pub. L. 112–81, div. A, title X, §1064(6), Dec. 31, 2011, 125 Stat. 1587.)
Editorial Notes
Prior Provisions
A prior section 2482 was renumbered section 2485 of this title.
A prior section 2482a was renumbered section 2492 of this title.
Amendments
2011—Subsec. (d)(1). Pub. L. 112–81 inserted "in the United States" after "commissary store".
Statutory Notes and Related Subsidiaries
Prohibition on Consolidation or Other Organizational Changes of Department of Defense Retail Systems
Pub. L. 105–261, div. A, title III, §367, Oct. 17, 1998, 112 Stat. 1987, which provided that the operation and administration of the defense retail systems could not be consolidated or otherwise merged unless the consolidation or merger was specifically authorized by a law enacted after Oct. 17, 1998, was repealed by Pub. L. 108–375, div. A, title VI, §651(e)(3), Oct. 28, 2004, 118 Stat. 1972.
§2483. Commissary stores: use of appropriated funds to cover operating expenses
(a) Operation of Agency and System.—Except as otherwise provided in this title, the operation of the Defense Commissary Agency and the defense commissary system shall be funded using such amounts as are appropriated for such purpose.
(b) Operating Expenses of Commissary Stores.—Appropriated funds shall be used to cover the expenses of operating commissary stores and central product processing facilities of the defense commissary system. For purposes of this subsection, operating expenses include the following:
(1) Salaries and wages of employees of the United States, host nations, and contractors supporting commissary store operations.
(2) Utilities.
(3) Communications.
(4) Operating supplies and services.
(5) Second destination transportation costs within or outside the United States.
(6) Any cost associated with above-store-level management or other indirect support of a commissary store or a central product processing facility, including equipment maintenance and information technology costs.
(7) Advertising of commissary sales on materials available within commissary stores and at other on-base locations.
(c) Supplemental Funds for Commissary Operations.—Amounts appropriated to cover the expenses of operating the Defense Commissary Agency and the defense commissary system may be supplemented with additional funds from manufacturers' coupon redemption fees, handling fees for tobacco products, and other amounts received as reimbursement for other support activities provided by commissary activities. Such appropriated amounts may also be supplemented with additional funds derived from improved management practices implemented pursuant to sections 2481(c)(3) and 2487(c) of this title and the variable pricing program implemented pursuant to section 2484(i) of this title.
(Added Pub. L. 98–525, title XIV, §1401(i)(1), Oct. 19, 1984, 98 Stat. 2619, §2484; amended Pub. L. 106–398, §1 [[div. A], title III, §331(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-59; Pub. L. 108–136, div. A, title VI, §654, Nov. 24, 2003, 117 Stat. 1523; renumbered §2483, Pub. L. 108–375, div. A, title VI, §651(a)(2), (4), Oct. 28, 2004, 118 Stat. 1964, 1966; Pub. L. 114–328, div. A, title VI, §661(b), Dec. 23, 2016, 130 Stat. 2169; Pub. L. 116–92, div. A, title VI, §631(d), Dec. 20, 2019, 133 Stat. 1429.)
Editorial Notes
Prior Provisions
A prior section 2483, added Pub. L. 107–107, div. A, title III, §332(a), Dec. 28, 2001, 115 Stat. 1058, related to reimbursement for use of commissary facilities by military departments, prior to repeal by Pub. L. 108–375, div. A, title VI, §651(a)(1), Oct. 28, 2004, 118 Stat. 1964.
Another prior section 2483 was renumbered section 2916 of this title.
Provisions similar to those in this section were contained in the following appropriation acts:
Oct. 12, 1984, Pub. L. 98–473, title I, §101(h) [title VIII, §8010], 98 Stat. 1904, 1924.
Dec. 8, 1983, Pub. L. 98–212, title VII, §713, 97 Stat. 1440.
Dec. 21, 1982, Pub. L. 97–377, title I, §101(c) [title VII, §714], 96 Stat. 1833, 1852.
Dec. 29, 1981, Pub. L. 97–114, title VII, §714, 95 Stat. 1580.
Dec. 15, 1980, Pub. L. 96–527, title VII, §715, 94 Stat. 3083.
Dec. 21, 1979, Pub. L. 96–154, title VII, §715, 93 Stat. 1155.
Oct. 13, 1978, Pub. L. 95–457, title VIII, §815, 92 Stat. 1246.
Sept. 21, 1977, Pub. L. 95–111, title VIII, §814, 91 Stat. 902.
Sept. 22, 1976, Pub. L. 94–419, title VII, §714, 90 Stat. 1293.
Feb. 9, 1976, Pub. L. 94–212, title VII, §714, 90 Stat. 171.
Oct. 8, 1974, Pub. L. 93–437, title VIII, §814, 88 Stat. 1227.
Jan. 2, 1974, Pub. L. 93–238, title VII, §714, 87 Stat. 1040.
Oct. 26, 1972, Pub. L. 92–570, title VII, §714, 86 Stat. 1198.
Dec. 18, 1971, Pub. L. 92–204, title VII, §714, 85 Stat. 729.
Jan. 11, 1971, Pub. L. 91–668, title VIII, §814, 84 Stat. 2032.
Dec. 29, 1969, Pub. L. 91–171, title VI, §614, 83 Stat. 482.
Oct. 17, 1968, Pub. L. 90–580, title V, §513, 82 Stat. 1132.
Sept. 29, 1967, Pub. L. 90–96, title VI, §613, 81 Stat. 244.
Oct. 15, 1966, Pub. L. 89–687, title VI, §613, 80 Stat. 993.
Sept. 29, 1965, Pub. L. 89–213, title VI, §613, 79 Stat. 875.
Aug. 19, 1964, Pub. L. 88–446, title V, §513, 78 Stat. 477.
Oct. 17, 1963, Pub. L. 88–149, title V, §513, 77 Stat. 266.
Aug. 9, 1962, Pub. L. 87–577, title V, §513, 76 Stat. 330.
Aug. 17, 1961, Pub. L. 87–144, title VI, §613, 75 Stat. 377.
July 7, 1960, Pub. L. 86–601, title V, §513, 74 Stat. 351.
Aug. 18, 1959, Pub. L. 86–166, title V, §613, 73 Stat. 380.
Aug. 22, 1958, Pub. L. 85–724, title VI, §613, 72 Stat. 725.
Aug. 2, 1957, Pub. L. 85–117, title VI, §614, 71 Stat. 325.
July 2, 1956, ch. 488, title VI, §614, 70 Stat. 469.
July 13, 1955, ch. 358, title VI, §617, 69 Stat. 317.
June 30, 1954, ch. 432, title VII, §717, 68 Stat. 353.
Aug. 1, 1953, ch. 305, title VI, §624, 67 Stat. 353.
July 10, 1952, ch. 630, title VI, §627, 66 Stat. 535.
Oct. 18, 1951, ch. 512, title VI, §628, 65 Stat. 449.
Amendments
2019—Subsec. (b)(7). Pub. L. 116–92 added par. (7).
2016—Subsec. (c). Pub. L. 114–328 inserted at end "Such appropriated amounts may also be supplemented with additional funds derived from improved management practices implemented pursuant to sections 2481(c)(3) and 2487(c) of this title and the variable pricing program implemented pursuant to section 2484(i) of this title."
2004—Pub. L. 108–375 renumbered section 2484 of this title as this section.
2003—Subsec. (a). Pub. L. 108–136, §654(a)(1), substituted "shall" for "may".
Subsec. (b). Pub. L. 108–136, §654(a)(2), substituted "shall" for "may" in introductory provisions.
Subsec. (c). Pub. L. 108–136, §654(b), added subsec. (c).
2000—Pub. L. 106–398 amended section catchline and text generally. Prior to amendment, text consisted of subsecs. (a) to (d) providing that funds available to the Department of Defense could be used to pay for certain costs in connection with the operation of commissary stores only on a reimbursable basis and allowed transportation and utilities to be furnished for the operation of those stores outside of the United States or in Alaska and Hawaii.
Statutory Notes and Related Subsidiaries
Effective Date of 2000 Amendment
Pub. L. 106–398, §1 [[div. A], title III, §331(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-59, provided that: "The amendments made by this section [amending this section] shall take effect on October 1, 2001."
Effective Date
Section effective Oct. 1, 1985, see section 1404 of Pub. L. 98–525, set out as a note under section 520b of this title.
§2484. Commissary stores: merchandise that may be sold; uniform surcharges and pricing
(a) In General.—As provided in section 2481(a) of this title, commissary stores are intended to be similar to commercial grocery stores and may sell merchandise similar to that sold in commercial grocery stores.
(b) Authorized Commissary Merchandise Categories.—Merchandise sold in, at, or by commissary stores may include items in the following categories:
(1) Meat, poultry, seafood, and fresh-water fish.
(2) Nonalcoholic beverages.
(3) Produce.
(4) Grocery food, whether stored chilled, frozen, or at room temperature.
(5) Dairy products.
(6) Bakery and delicatessen items.
(7) Nonfood grocery items.
(8) Tobacco products.
(9) Health and beauty aids.
(10) Magazines and periodicals.
(c) Inclusion of Other Merchandise Items.—(1) The Secretary of Defense may authorize the sale in, at, or by commissary stores of merchandise not covered by a category specified in subsection (b). The Secretary shall notify Congress of all merchandise authorized for sale pursuant to this paragraph, as well as the removal of any such authorization.
(2) Notwithstanding paragraph (1), the Department of Defense military resale system shall continue to maintain the exclusive right to operate convenience stores, shopettes, and troop stores, including such stores established to support contingency operations.
(3)(A) A military exchange shall be the vendor for the sale of tobacco products in commissary stores and may be the vendor for such merchandise as may be authorized for sale in commissary stores under paragraph (1). Except as provided in subparagraph (B), subsections (d) and (e) shall not apply to the pricing of such an item when a military exchange serves as the vendor of the item. Commissary store and exchange prices shall be comparable for such an item.
(B) When a military exchange is the vendor of tobacco products or other merchandise authorized for sale in a commissary store under paragraph (1), any revenue above the cost of procuring the merchandise shall be allocated as if the revenue were a uniform sales price surcharge described in subsection (d).
(d) Uniform Sales Price Surcharge.—The Secretary of Defense shall apply a uniform surcharge equal to five percent on the sales prices established under subsection (e) for each item of merchandise sold in, at, or by commissary stores.
(e) Sales Price Establishment.—(1) The Secretary of Defense shall establish the sales price of each item of merchandise sold in, at, or by commissary stores at the level that will recoup the actual product cost of the item.
(2) Any change in the pricing policies for merchandise sold in, at, or by commissary stores shall not take effect until the Secretary of Defense submits written notice of the proposed change to Congress and a period of 90 days of continuous session of Congress expires following the date on which notice was received. For purposes of this paragraph, the continuity of a session of Congress is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment or recess of more than three days to a day certain are excluded in a computation of such 90-day period.
(3) The sales price of merchandise and services sold in, at, or by commissary stores shall be adjusted to cover the following:
(A) The cost of first destination commercial transportation of the merchandise in the United States to the place of sale.
(B) The actual or estimated cost of shrinkage, spoilage, and pilferage of merchandise under the control of commissary stores.
(f) Procurement of Commercial Products Using Procedures Other Than Competitive Procedures.—The Secretary of Defense may use the exception provided in section 3204(a)(5) of this title for the procurement of any commercial product (including brand-name and generic items) for resale in, at, or by commissary stores.
(g) Special Rules for Certain Merchandise.—(1) Notwithstanding the general requirement that merchandise sold in, at, or by commissary stores be commissary store inventory, the Secretary of Defense may authorize the sale of tobacco products as noncommissary store inventory. Except as provided in paragraph (2), subsections (d) and (e) shall not apply to the pricing of such merchandise items.
(2) When tobacco products are authorized for sale in a commissary store as noncommissary store inventory, any revenue above the cost of procuring the tobacco products shall be allocated as if the revenue were a uniform sales price surcharge described in subsection (d).
(h) Use of Surcharge for Construction, Repair, Improvement, and Maintenance.—(1)(A) The Secretary of Defense may use the proceeds from the surcharges imposed under subsection (d) only—
(i) to acquire (including acquisition by lease), construct, convert, expand, improve, repair, maintain, and equip the physical infrastructure of commissary stores and central product processing facilities of the defense commissary system; and
(ii) to cover environmental evaluation and construction costs related to activities described in clause (i), including costs for surveys, administration, overhead, planning, and design.
(B) In subparagraph (A), the term "physical infrastructure" includes real property, utilities, and equipment (installed and free standing and including computer equipment), necessary to provide a complete and usable commissary store or central product processing facility.
(2)(A) The Secretary of Defense may authorize a nonappropriated fund instrumentality of the United States to enter into a contract for construction of a shopping mall or similar facility for a commissary store and one or more nonappropriated fund instrumentality activities. The Secretary may use the proceeds of surcharges under subsection (d) to reimburse the nonappropriated fund instrumentality for the portion of the cost of the contract that is attributable to construction of the commissary store or to pay the contractor directly for that portion of such cost.
(B) In subparagraph (A), the term "construction", with respect to a facility, includes acquisition, conversion, expansion, installation, or other improvement of the facility.
(3)(A) The Secretary of Defense may use the proceeds derived from surcharges imposed under subsection (d) in connection with sales of commissary merchandise through initiatives described in subparagraph (B) to offset the cost of such initiatives.
(B) Subparagraph (A) applies with respect to initiatives, utilizing temporary and mobile equipment, intended to provide members of reserve components, retired members, and other persons eligible for commissary benefits, but without reasonable access to commissary stores, improved access to commissary merchandise.
(4) The Secretary of Defense, with the approval of the Director of the Office of Management and Budget, may obligate anticipated proceeds from the surcharges under subsection (d) for any use specified in paragraph (1), (2), or (3), without regard to fiscal year limitations, if the Secretary determines that such obligation is necessary to carry out any use of such adjustments or surcharges specified in such paragraph.
(5) Revenues received by the Secretary of Defense from the following sources or activities of commissary store facilities shall be available for the purposes set forth in paragraphs (1), (2), and (3):
(A) Sale of recyclable materials.
(B) Sale of excess and surplus property.
(C) License fees.
(D) Royalties.
(E) Fees paid by sources of products in order to obtain favorable display of the products for resale, known as business related management fees.
(F) Amounts made available for any purpose set forth in paragraph (1) pursuant to an agreement with a host nation.
(G) Amounts appropriated for repair or reconstruction of a commissary store in response to a disaster or emergency.
(6) Revenues made available under paragraph (5) for the purposes set forth in paragraphs (1), (2), and (3) may be supplemented with additional funds derived from—
(A) improved management practices implemented pursuant to sections 2481(c)(3), 2485(b), and 2487(c) of this title; and
(B) the variable pricing program implemented pursuant to subsection (i).
(i) Variable Pricing Program.—(1) Notwithstanding subsection (e), and subject to subsection (k), the Secretary of Defense may establish a variable pricing program pursuant to which prices may be established in response to market conditions and customer demand, in accordance with the requirements of this subsection. Notwithstanding the amount of the uniform surcharge assessed in subsection (d), the Secretary may provide for an alternative surcharge of not more than five percent of sales proceeds under the variable pricing program to be made available for the purposes specified in subsection (h).
(2) Subject to subsection (k), before establishing a variable pricing program under this subsection, the Secretary shall establish the following:
(A) Specific, measurable benchmarks for success in the provision of high quality grocery merchandise, discount savings to patrons, and levels of customer satisfaction while achieving savings for the Department of Defense.
(B) A baseline of overall savings to patrons achieved by commissary stores prior to the initiation of the variable pricing program, based on a comparison of prices charged by those stores on a regional basis with prices charged by relevant local competitors for a representative market basket of goods.
(3) The Secretary shall ensure that the defense commissary system implements the variable pricing program by conducting price comparisons using the methodology established for paragraph (2)(B) and adjusting pricing as necessary to ensure that pricing in the variable pricing program achieves overall savings to patrons that are consistent with the baseline savings established for the relevant region pursuant to such paragraph.
(j) Conversion to Nonappropriated Fund Entity or Instrumentality.—(1) Subject to subsection (k), if the Secretary of Defense determines that the variable pricing program has met the benchmarks for success established pursuant to paragraph (2)(A) of subsection (i) and the savings requirements established pursuant to paragraph (3) of such subsection over a period of at least six months, the Secretary may convert the defense commissary system to a nonappropriated fund entity or instrumentality, with operating expenses financed in whole or in part by receipts from the sale of products and the sale of services. Upon such conversion, appropriated funds shall be transferred to the defense commissary system only in accordance with paragraph (2) or section 2491 of this title. The requirements of section 2483 of this title shall not apply to the defense commissary system operating as a nonappropriated fund entity or instrumentality.
(2) If the Secretary determines that the defense commissary system operating as a nonappropriated fund entity or instrumentality is likely to incur a loss in any fiscal year as a result of compliance with the savings requirement established in subsection (i), the Secretary shall authorize a transfer of appropriated funds available for such purpose to the commissary system in an amount sufficient to offset the anticipated loss. Any funds so transferred shall be considered to be nonappropriated funds for such purpose.
(3)(A) The Secretary may identify positions of employees in the defense commissary system who are paid with appropriated funds whose status may be converted to the status of an employee of a nonappropriated fund entity or instrumentality.
(B) The status and conversion of employees in a position identified by the Secretary under subparagraph (A) shall be addressed as provided in section 2491(c) of this title for employees in morale, welfare, and recreation programs, including with respect to requiring the consent of such employee to be so converted.
(C) No individual who is an employee of the defense commissary system as of the date of the enactment of this subsection shall suffer any loss of or decrease in pay as a result of a conversion made under this paragraph.
(k) Oversight Required To Ensure Continued Benefit to Patrons.—(1) With respect to each action described in paragraph (2), the Secretary of Defense may not carry out such action until—
(A) the Secretary provides to the congressional defense committees a briefing on such action, including a justification for such action; and
(B) a period of 30 days has elapsed following such briefing.
(2) The actions described in this paragraph are the following:
(A) Establishing the representative market basket of goods pursuant to subsection (i)(2)(B).
(B) Establishing the variable pricing program under subsection (i)(1).
(C) Converting the defense commissary system to a nonappropriated fund entity or instrumentality under subsection (j)(1).
(Added Pub. L. 99–661, div. A, title III, §313(a), Nov. 14, 1986, 100 Stat. 3852, §2486; amended Pub. L. 100–180, div. A, title III, §313(a)(1), (2), Dec. 4, 1987, 101 Stat. 1073, 1074; Pub. L. 104–201, div. A, title III, §342(a), Sept. 23, 1996, 110 Stat. 2489; Pub. L. 105–85, div. A, title III, §§372(a)–(e), 373, Nov. 18, 1997, 111 Stat. 1706, 1707; Pub. L. 105–261, div. A, title III, §364, Oct. 17, 1998, 112 Stat. 1986; Pub. L. 106–65, div. A, title X, §1066(a)(21), Oct. 5, 1999, 113 Stat. 771; Pub. L. 106–398, §1 [[div. A], title III, §§332(a), 334], Oct. 30, 2000, 114 Stat. 1654, 1654A-59, 1654A-60; Pub. L. 107–314, div. A, title X, §1041(a)(14), Dec. 2, 2002, 116 Stat. 2645; renumbered §2484 and amended Pub. L. 108–375, div. A, title VI, §651(a)(2), (4), (5), Oct. 28, 2004, 118 Stat. 1964, 1966; Pub. L. 109–364, div. A, title VI, §661, title X, §1071(g)(6), Oct. 17, 2006, 120 Stat. 2262, 2402; Pub. L. 110–417, [div. A], title VI, §641, Oct. 14, 2008, 122 Stat. 4493; Pub. L. 113–291, div. A, title VI, §631, Dec. 19, 2014, 128 Stat. 3405; Pub. L. 114–328, div. A, title VI, §661(c), Dec. 23, 2016, 130 Stat. 2170; Pub. L. 115–232, div. A, title VIII, §836(e)(11), Aug. 13, 2018, 132 Stat. 1870; Pub. L. 116–283, div. A, title XVIII, §1883(b)(2), Jan. 1, 2021, 134 Stat. 4294; Pub. L. 117–81, div. A, title VI, §631, Dec. 27, 2021, 135 Stat. 1775.)
Editorial Notes
References in Text
The date of the enactment of this subsection, referred to in subsec. (j)(3)(C), is the date of enactment of Pub. L. 114–328, which was approved Dec. 23, 2016.
Prior Provisions
A prior section 2484 was renumbered section 2483 of this title.
Amendments
2021—Subsec. (f). Pub. L. 116–283 substituted "section 3204(a)(5)" for "section 2304(c)(5)".
Subsec. (h)(5)(F), (G). Pub. L. 117–81, §631(1), added subpars. (F) and (G).
Subsec. (h)(6). Pub. L. 117–81, §631(2), added par. (6).
2018—Subsec. (f). Pub. L. 115–232 substituted "Commercial Products" for "Commercial Items" in heading and substituted "commercial product" for "commercial item" in text.
2016—Subsecs. (i) to (k). Pub. L. 114–328 added subsecs. (i) to (k).
2014—Subsec. (f). Pub. L. 113–291 amended subsec. (f) generally. Prior to amendment, text read as follows: "The Secretary of Defense may not use the exception provided in section 2304(c)(5) of this title regarding the procurement of a brand-name commercial item for resale in, at, or by commissary stores unless the commercial item is regularly sold outside of commissary stores under the same brand name as the name by which the commercial item will be sold in, at, or by commissary stores. In determining whether a brand name commercial item is regularly sold outside of commissary stores, the Secretary shall consider only sales of the item on a regional or national basis by commercial grocery or other retail operations consisting of multiple stores."
2008—Subsec. (h)(3) to (5). Pub. L. 110–417 added par. (3), redesignated former pars. (3) and (4) as (4) and (5), respectively, and substituted "paragraph (1), (2), or (3)" for "paragraph (1) or (2)" in par. (4).
2006—Pub. L. 109–364, §1071(g)(6), made technical correction to directory language of Pub. L. 108–375, §651(a)(5)(C). See 2004 Amendment notes for subsecs. (a) to (d) below.
Subsec. (c)(3). Pub. L. 109–364, §661(a), designated existing provisions as subpar. (A), substituted "Except as provided in subparagraph (B), subsections" for "Subsections", and added subpar. (B).
Subsec. (g). Pub. L. 109–364, §661(b), designated existing provisions as par. (1), substituted "Except as provided in paragraph (2), subsections" for "Subsections", and added par. (2).
2004—Pub. L. 108–375, §651(a)(2), (4), renumbered section 2486 of this title as this section.
Subsecs. (a) to (c). Pub. L. 108–375, §651(a)(5)(C), as amended by Pub. L. 109–364, §1071(g)(6), added subsecs. (a) to (c).
Pub. L. 108–375, §651(a)(5)(A), struck out subsecs. (a) to (c) which related to operation of the Defense Commissary Agency and the defense commissary system, use of funds to cover expenses of operating commissary stores and central product processing facilities, and supplemental funds for commissary operations, respectively.
Subsec. (d). Pub. L. 108–375, §651(a)(5)(C), as amended by Pub. L. 109–364, §1071(g)(6), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 108–375, §651(a)(5)(B), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(1). Pub. L. 108–375, §651(a)(5)(D), struck out "(consistent with this section and section 2685 of this title)" before period at end.
Subsec. (f). Pub. L. 108–375, §651(a)(5)(B), redesignated subsec. (e) as (f). Former subsec. (f) redesignated (g).
Subsec. (g). Pub. L. 108–375, §651(a)(5)(E), substituted "Subsections (d) and (e)" for "Subsections (c) and (d)" before "shall not apply to the pricing".
Pub. L. 108–375, §651(a)(5)(A), (B), redesignated subsec. (f) as (g) and struck out heading and text of former subsec. (g), which related to the imposition of charges by the Secretary of Defense for the collection of dishonored checks.
Subsec. (h). Pub. L. 108–375, §651(a)(5)(F), added subsec. (h).
2002—Subsec. (b)(12). Pub. L. 107–314 substituted ", except that the Secretary shall notify Congress of any addition of, or change in, a merchandise category under this paragraph." for ", except that the Secretary shall submit to Congress, not later than March 1 of each year, a report describing—
"(A) any addition of, or change in, a merchandise category proposed to be made under this paragraph during the one-year period beginning on that date; and
"(B) those additions and changes in merchandise categories actually made during the preceding one-year period."
2000—Subsec. (b)(11), (12). Pub. L. 106–398, §1 [[div. A], title III, §334(a)], added par. (11) and redesignated former par. (11) as (12).
Subsec. (c). Pub. L. 106–398, §1 [[div. A], title III, §332(a)(1)], substituted "subsection (d) or section" for "section 2484(b) or".
Subsec. (d)(1). Pub. L. 106–398, §1 [[div. A], title III, §332(a)(2)(A)], substituted "section 2685" for "sections 2484 and 2685".
Subsec. (d)(3). Pub. L. 106–398, §1 [[div. A], title III, §332(a)(2)(B)], added par. (3).
Subsec. (f). Pub. L. 106–398, §1 [[div. A], title III, §334(b)], struck out "(1)" before "Notwithstanding", substituted "tobacco products" for "items in the merchandise categories specified in paragraph (2)", and struck out par. (2) which read as follows: "The merchandise categories referred to in paragraph (1) are as follows:
"(A) Magazines and other periodicals.
"(B) Tobacco products."
1999—Subsec. (c). Pub. L. 106–65 substituted "November 18, 1997," for "the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998," in second sentence.
1998—Subsec. (g). Pub. L. 105–261 added subsec. (g).
1997—Subsec. (a). Pub. L. 105–85, §372(e)(1), inserted heading.
Subsec. (b). Pub. L. 105–85, §372(a)(1), inserted heading and substituted "Merchandise sold in, at, or by commissary stores may include items only in the following categories:" for "Merchandise sold in commissary stores may include items in the following categories:" in introductory provisions.
Subsec. (b)(11). Pub. L. 105–85, §372(a)(2), amended par. (11) generally. Prior to amendment, par. (11) read as follows: "Other categories designated in regulations prescribed by the Secretary of a military department and approved by the Secretary of Defense."
Subsec. (c). Pub. L. 105–85, §372(b), inserted heading, substituted "in, at, or by commissary stores." for "in commissary stores.", and inserted at end "Effective on the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998, the uniform percentage shall be equal to five percent and may not be changed except by a law enacted after such date."
Subsec. (d). Pub. L. 105–85, §372(c), inserted heading and amended text generally. Prior to amendment, text read as follows: "The Secretary of Defense shall prescribe regulations establishing uniform pricing policies for merchandise authorized for sale by this section. The policies in the regulations shall—
"(1) require the establishment of a sales price of each item of merchandise at a level which will recoup the actual product cost of the item (consistent with this section and sections 2484 and 2685 of this title); and
"(2) promote the lowest practical price of merchandise sold at commissary stores."
Subsec. (e). Pub. L. 105–85, §373, inserted at end "In determining whether a brand name commercial item is regularly sold outside of commissary stores, the Secretary shall consider only sales of the item on a regional or national basis by commercial grocery or other retail operations consisting of multiple stores."
Pub. L. 105–85, §372(e)(2), inserted heading and substituted "in, at, or by commissary stores" for "in commissary stores" in two places.
Subsec. (f). Pub. L. 105–85, §372(d), added subsec. (f).
1996—Subsec. (e). Pub. L. 104–201 added subsec. (e).
1987—Pub. L. 100–180, §313(a)(2), inserted "and pricing" in section catchline.
Subsec. (d). Pub. L. 100–180, §313(a)(1), added subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
Effective Date of 2006 Amendment
Pub. L. 109–364, div. A, title X, §1071(g), Oct. 17, 2006, 120 Stat. 2402, provided that the amendment made by section 1071(g)(6) is effective as of Oct. 28, 2004, and as if included in Pub. L. 108–375 as enacted.
Effective Date of 2000 Amendment
Pub. L. 106–398, §1 [[div. A], title III, §332(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-60, provided that: "The amendments made by this section [amending this section] shall take effect on October 1, 2001."
Regulations
Pub. L. 100–180, div. A, title III, §313(b), Dec. 4, 1987, 101 Stat. 1074, required Secretary of Defense to prescribe regulations required by subsec. (d) of this section not later than 90 days after Dec. 4, 1987.
Savings Provision
Pub. L. 104–201, div. A, title III, §342(b), Sept. 23, 1996, 110 Stat. 2489, provided that: "Section 2486(e) [now 2484(e)] of title 10, United States Code, as added by subsection (a), shall not affect the terms, conditions, or duration of any contract or other agreement entered into by the Secretary of Defense before the date of the enactment of this Act [Sept. 23, 1996] for the procurement of commercial items for resale in commissary stores."
Procurement by Commissary Stores of Certain Locally Sourced Products
Pub. L. 116–92, div. A, title VI, §632, Dec. 20, 2019, 133 Stat. 1429, provided that: "The Secretary of Defense shall ensure that the dairy products and fruits and vegetables procured for commissary stores under the defense commissary system are, to the extent practicable and while maintaining mandated patron savings, locally sourced in order to ensure the availability of the freshest possible dairy products and fruits and vegetables for patrons of the stores."
Operation of Defense Commissary System as a Nonappropriated Fund Entity
Pub. L. 114–328, div. A, title VI, §661(g), Dec. 23, 2016, 130 Stat. 2172, provided that: "In the event that the defense commissary system is converted to a nonappropriated fund entity or instrumentality as authorized by section 2484(j)(1) of title 10, United States Code, as added by subsection (c) of this section, the Secretary of Defense may—
"(1) provide for the transfer of commissary assets, including inventory and available funds, to the nonappropriated fund entity or instrumentality; and
"(2) ensure that revenues accruing to the defense commissary system are appropriately credited to the nonappropriated fund entity or instrumentality."
Competitive Pricing of Legal Consumer Tobacco Products Sold in Department of Defense Retail Stores
Pub. L. 118–47, div. A, title VIII, §8041, Mar. 23, 2024, 138 Stat. 492, provided that: "The Secretary of Defense shall issue regulations to prohibit the sale of any tobacco or tobacco-related products in military resale outlets in the United States, its territories and possessions at a price below the most competitive price in the local community: Provided, That such regulations shall direct that the prices of tobacco or tobacco-related products in overseas military retail outlets shall be within the range of prices established for military retail system stores located in the United States."
Similar provisions were contained in the following appropriation acts:
Pub. L. 117–328, div. C, title VIII, §8041, Dec. 29, 2022, 136 Stat. 4595.
Pub. L. 117–103, div. C, title VIII, §8043, Mar. 15, 2022, 136 Stat. 184.
Pub. L. 116–260, div. C, title VIII, §8036, Dec. 27, 2020, 134 Stat. 1312.
Pub. L. 116–93, div. A, title VIII, §8036, Dec. 20, 2019, 133 Stat. 2344.
Pub. L. 115–245, div. A, title VIII, §8034, Sept. 28, 2018, 132 Stat. 3007.
Pub. L. 115–141, div. C, title VIII, §8033, Mar. 23, 2018, 132 Stat. 471.
Pub. L. 115–31, div. C, title VIII, §8034, May 5, 2017, 131 Stat. 254.
Pub. L. 114–113, div. C, title VIII, §8033, Dec. 18, 2015, 129 Stat. 2358.
Pub. L. 113–235, div. C, title VIII, §8073, Dec. 16, 2014, 128 Stat. 2271.
Pub. L. 113–291, div. A, title VI, §633, Dec. 19, 2014, 128 Stat. 3405, provided that:
"(a) Prohibition on Banning Sale of Legal Consumer Tobacco Products.—The Secretary of Defense and the Secretaries of the military departments may not take any action to implement any new policy that would ban the sale of any legal consumer tobacco product category sold as of January 1, 2014, within the defense retail systems or on any Department of Defense vessel at sea.
"(b) Use of Prices Comparable to Local Prices.—The Secretary of Defense shall issue regulations regarding the pricing of tobacco and tobacco-related products sold in an outlet of the defense retail systems inside the United States, including territories and possessions of the United States, to prohibit the sale of a product at a price below the most competitive price for that product in the local community.
"(c) Application to Overseas Defense Retail Systems.—The regulations required by subsection (b) shall direct that the price of a tobacco or tobacco-related product sold in an outlet of the defense retail systems outside of the United States shall be within the range of prices established for that product in outlets of the defense retail systems inside the United States.
"(d) Defense Retail Systems Defined.—In this section, the term 'defense retail systems' has the meaning given that term in section 2487(b)(2) of title 10, United States Code."
Test Program of Sale of Certain Items in Commissary Stores
Pub. L. 108–375, div. A, title VI, §651(g), Oct. 28, 2004, 118 Stat. 1972, provided that:
"(1) The Secretary of Defense may conduct a test program involving the sale of telephone cards, film, and one-time use cameras in not less than 10 commissary stores for a period selected by the Secretary, but not less than six months.
"(2) Within 90 days after the completion of the first year of the test program or within 90 days after the completion of the test program, whichever occurs first, the Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report containing the results of the test program. The report shall include an analysis of the impact of the sale of such items on the exchange dividend and such recommendations as the Secretary considers appropriate regarding legislative changes necessary to expand the sale of such items in commissary stores."
Report on Merchandise Categories
Pub. L. 105–85, div. A, title III, §372(f), Nov. 18, 1997, 111 Stat. 1707, provided that, not later than 30 days after Nov. 18, 1997, the Secretary of Defense was to submit to Congress a report specifying the merchandise categories authorized for sale sold in, at, or by commissary stores pursuant to regulations prescribed under subsection (b)(11) of this section, as in effect before Nov. 18, 1997.
§2485. Commissary stores: operation
(a) Private Operation.—Under such regulations as the Secretary of Defense may approve, private persons may operate selected commissary store functions, except that such functions may not include functions relating to the procurement of products to be sold in a commissary store or functions relating to the overall management of a commissary system or the management of a commissary store. Such functions shall be carried out by personnel of the Department of Defense under regulations approved by the Secretary of Defense.
(b) Contracts With Other Agencies and Instrumentalities.—(1) The Defense Commissary Agency, and any other agency of the Department of Defense that supports the operation of the commissary system, may enter into a contract or other agreement with another element of the Department of Defense or with another Federal department, agency, or instrumentality to provide or obtain services beneficial to the efficient management and operation of the commissary system. However, the Defense Commissary Agency may not pay for any such service provided by the United States Transportation Command any amount that exceeds the price at which the service could be procured through full and open competition, as such term is defined in section 107 of title 41.
(2) A commissary store operated by a nonappropriated fund instrumentality of the Department of Defense shall be operated in accordance with section 2483 of this title. Subject to such section, the Secretary of Defense may authorize a transfer of goods, supplies, and facilities of, and funds appropriated for, the Defense Commissary Agency or any other agency of the Department of Defense that supports the operation of the commissary system to a nonappropriated fund instrumentality for the operation of a commissary store.
(c) Governing Board.—(1) Notwithstanding section 192(d) of this title, the Secretary of Defense shall establish a governing board for the commissary system to provide advice to the Secretary regarding the prudent operation of the commissary system and to assist in the overall supervision of the Defense Commissary Agency. The Secretary may authorize the board to have such supervisory authority as the Secretary considers appropriate to permit the board to carry out its responsibilities.
(2) The Secretary of Defense shall determine the membership of the governing board, which shall include, at a minimum, appropriate representatives from each military department. The chairman of the governing board shall be a commissioned officer or member of the senior executive service who has demonstrated experience or knowledge relevant to the management of the defense commissary system. In selecting other members of the governing board, the Secretary shall give priority to persons with experience related to logistics, military personnel, military entitlements or other experiences of value of management of commissaries.
(3) The governing board shall be accountable only to the Secretary of Defense and to the civilian officer of the Department of Defense who is assigned the responsibility for the overall supervision of the Defense Commissary Agency pursuant to section 192(a) of this title. The Director of the Defense Commissary Agency shall be accountable to and report to the board.
(d) Assignment of Active Duty Members.—(1) Except as provided in paragraph (2), members of the armed forces on active duty may not be assigned to the operation of a commissary store.
(2)(A) The Secretary of Defense may assign an officer on the active-duty list to serve as the Director of the Defense Commissary Agency.
(B) Not more than 18 members (in addition to the officer referred to in subparagraph (A)) of the armed forces on active duty may be assigned to the Defense Commissary Agency. Members who may be assigned under this subparagraph to regional headquarters of the agency shall be limited to enlisted members assigned to duty as advisers in the regional headquarters responsible for overseas commissaries and to veterinary specialists.
(e) Reimbursement for Use of Commissary Facilities by Military Departments.—(1) The Secretary of a military department shall pay the Defense Commissary Agency the amount determined under paragraph (2) for any use of a commissary facility by the military department for a purpose other than commissary sales or operations in support of commissary sales.
(2) The amount payable under paragraph (1) for use of a commissary facility by a military department shall be equal to the share of depreciation of the facility that is attributable to that use, as determined under regulations prescribed by the Secretary of Defense.
(3) The Director of the Defense Commissary Agency shall credit amounts paid under paragraph (1) for use of a facility to an appropriate account to which proceeds of a surcharge applied under section 2484(d) of this title are credited.
(4) This subsection applies with respect to a commissary facility that is acquired, constructed, converted, expanded, installed, or otherwise improved (in whole or in part) with the proceeds of a surcharge applied under section 2484(d) of this title.
(f) Donation of Unusable Food.—(1) The Secretary of Defense may donate food described in paragraph (2) to any of the following entities:
(A) A charitable nonprofit food bank that is designated by the Secretary of Defense or the Secretary of Health and Human Services as authorized to receive such donations.
(B) A State or local agency that is designated by the Secretary of Defense or the Secretary of Health and Human Services as authorized to receive such donations.
(C) A chapter or other local unit of a recognized national veterans organization that provides services to persons without adequate shelter and is designated by the Secretary of Veterans Affairs as authorized to receive such donations.
(D) A not-for-profit organization that provides care for homeless veterans and is designated by the Secretary of Veterans Affairs as authorized to receive such donations.
(2) Food that may be donated under this subsection is commissary store food, mess food, meals ready-to-eat (MREs), rations known as humanitarian daily rations (HDRs), and other food available to the Secretary of Defense that—
(A) is certified as edible by appropriate food inspection technicians;
(B) would otherwise be destroyed as unusable; and
(C) in the case of commissary store food, is unmarketable and unsaleable.
(3) In the case of commissary store food, a donation under this subsection shall take place at the site of the commissary store that is donating the food.
(4) This subsection does not authorize any service (including transportation) to be provided in connection with a donation under this subsection.
(g) Collection of Dishonored Checks.—(1) The Secretary of Defense may impose a charge for the collection of a check accepted at a commissary store that is not honored by the financial institution on which the check is drawn. The imposition and amounts of charges shall be consistent with practices of commercial grocery stores regarding dishonored checks.
(2)(A) The following persons are liable to the United States for the amount of a check referred to in paragraph (1) that is returned unpaid to the United States, together with any charge imposed under that paragraph:
(i) The person who presented the check.
(ii) Any person whose status and relationship to the person who presented the check provide the basis for that person's eligibility to make purchases at a commissary store.
(B) Any amount for which a person is liable under subparagraph (A) may be collected by deducting and withholding such amount from any amounts payable to that person by the United States.
(3) Amounts collected as charges imposed under paragraph (1) shall be credited to the commissary trust revolving fund.
(4) Appropriated funds may be used to pay any costs incurred in the collection of checks and charges referred to in paragraph (1). An appropriation account charged a cost under the preceding sentence shall be reimbursed the amount of that cost out of funds in the commissary trust revolving fund.
(5) In this subsection, the term "commissary trust revolving fund" means the trust revolving fund maintained by the Department of Defense for surcharge collections and proceeds of sales of commissary stores.
(h) Release of Certain Commercially Valuable Information to Public.—(1) The Secretary of Defense may limit the release to the public of any information described in paragraph (2) if the Secretary determines that it is in the best interest of the Department of Defense to limit the release of such information. If the Secretary determines to limit the release of any such information, the Secretary may provide for limited release of such information in accordance with paragraph (3).
(2) Paragraph (1) applies to the following:
(A) Information contained in the computerized business systems of commissary stores or the Defense Commissary Agency that is collected through or in connection with the use of electronic scanners in commissary stores, including the following information:
(i) Data relating to sales of goods or services.
(ii) Demographic information on customers.
(iii) Any other information pertaining to commissary transactions and operations.
(B) Business programs, systems, and applications (including software) relating to commissary operations that were developed with funding derived from commissary surcharges.
(3)(A) The Secretary of Defense may, using competitive procedures, enter into a contract to sell information described in paragraph (2).
(B) The Secretary of Defense may release, without charge, information on an item sold in commissary stores to the manufacturer or producer of that item or an agent of the manufacturer or producer.
(C) The Secretary of Defense shall establish performance benchmarks and shall submit information on customer satisfaction and performance data to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.
(D) The Secretary of Defense may, by contract entered into with a business, grant to the business a license to use business programs referred to in paragraph (2)(B), including software used in or comprising any such program. The fee charged for the license shall be based on the costs of similar programs developed and marketed by businesses in the private sector, determined by means of surveys.
(E) Each contract entered into under this paragraph shall specify the amount to be paid for information released or a license granted under the contract, as the case may be.
(4) Information described in paragraph (2) may not be released, under paragraph (3) or otherwise, in a form that identifies any customer or that provides information making it possible to identify any customer.
(5) Amounts received by the Secretary under this section shall be credited to funds derived from commissary surcharges applied under section 2484(e) of this title, shall be merged with those funds, and shall be available for the same purposes as the funds with which merged.
(i) Expert Commercial Advice.—The Secretary of Defense may enter into a contract with an entity to obtain expert commercial advice, commercial assistance, or other similar services not otherwise carried out by the Defense Commissary Agency, to implement section 2481(c), subsections (i) and (j) of section 2484, and section 2487(c) of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 141, §2482; Pub. L. 100–456, div. A, title III, §321, Sept. 29, 1988, 102 Stat. 1952; Pub. L. 104–106, div. A, title III, §331(a), Feb. 10, 1996, 110 Stat. 260; Pub. L. 104–201, div. A, title III, §341(b), Sept. 23, 1996, 110 Stat. 2489; Pub. L. 105–261, div. A, title III, §§361(b), 363(a), Oct. 17, 1998, 112 Stat. 1984, 1985; Pub. L. 108–136, div. A, title VI, §653, Nov. 24, 2003, 117 Stat. 1522; renumbered §2485 and amended Pub. L. 108–375, div. A, title VI, §651(a)(2), (6), (7), Oct. 28, 2004, 118 Stat. 1964, 1968; Pub. L. 109–163, div. A, title VI, §672, Jan. 6, 2006, 119 Stat. 3319; Pub. L. 111–350, §5(b)(35), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 112–81, div. A, title X, §1061(16), Dec. 31, 2011, 125 Stat. 1583; Pub. L. 114–328, div. A, title VI, §661(e), Dec. 23, 2016, 130 Stat. 2172.)
This section is codified as permanent law on the basis of an opinion of the Assistant General Counsel (Fiscal Matters), Department of Defense, dated September 28, 1954. The words "and privately owned organizations" are omitted as surplusage since under 1 U.S.C. 1 "person" includes such an organization.
Editorial Notes
Prior Provisions
A prior section 2485, added Pub. L. 99–145, title XIV, §1460(a), Nov. 8, 1985, 99 Stat. 764; amended Pub. L. 101–510, div. A, title III, §324(a), (b)(1), Nov. 5, 1990, 104 Stat. 1530; Pub. L. 104–201, div. A, title III, §365, Sept. 23, 1996, 110 Stat. 2494, related to donation of unusable food from commissary stores and other activities, prior to repeal by Pub. L. 108–375, div. A, title VI, §651(a)(1), Oct. 28, 2004, 118 Stat. 1964.
A prior section 2486 was renumbered section 2484 of this title.
Amendments
2016—Subsec. (i). Pub. L. 114–328 added subsec. (i).
2011—Subsec. (a). Pub. L. 112–81 struck out par. (1) designation before "Under such regulations" and struck out par. (2) which read as follows: "Any change to private operation of a commissary store function that is being performed by more than 10 Department of Defense civilian employees shall not take effect until the end of the 75-day period beginning on the date on which the Secretary of Defense submits to Congress written notice of the change. Until December 31, 2008, the Defense Commissary Agency is not required to conduct any cost-comparison study under the policies and procedures of Office of Management and Budget Circular A–76 relating to the possible contracting out of commissary store functions."
Subsec. (b)(1). Pub. L. 111–350 substituted "section 107 of title 41" for "section 4(6) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(6))".
2006—Subsec. (a)(2). Pub. L. 109–163 inserted at end "Until December 31, 2008, the Defense Commissary Agency is not required to conduct any cost-comparison study under the policies and procedures of Office of Management and Budget Circular A–76 relating to the possible contracting out of commissary store functions."
2004—Pub. L. 108–375, §651(a)(2), (6), renumbered section 2482 of this title as this section.
Subsec. (b)(2). Pub. L. 108–375, §651(a)(7)(A), substituted "section 2483" for "section 2484".
Subsec. (c)(2). Pub. L. 108–375, §651(a)(7)(B), inserted at end "The chairman of the governing board shall be a commissioned officer or member of the senior executive service who has demonstrated experience or knowledge relevant to the management of the defense commissary system. In selecting other members of the governing board, the Secretary shall give priority to persons with experience related to logistics, military personnel, military entitlements or other experiences of value of management of commissaries."
Subsecs. (d) to (h). Pub. L. 108–375, §651(a)(7)(C), added subsecs. (d) to (h).
2003—Subsec. (a). Pub. L. 108–136 designated existing provisions as par. (1), inserted first sentence, added par. (2), and struck out former first and second sentences which read as follows: "Private persons may operate commissary stores under such regulations as the Secretary of Defense may approve. A contract with a private person for the operation of any commissary store may not require or permit the contractor to carry out functions for the procurement of products to be sold in the store or to engage in functions relating to the overall management of a commissary system or the management of any such store."
1998—Subsec. (b)(1). Pub. L. 105–261, §363(a), inserted at end "However, the Defense Commissary Agency may not pay for any such service provided by the United States Transportation Command any amount that exceeds the price at which the service could be procured through full and open competition, as such term is defined in section 4(6) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(6))."
Subsec. (c). Pub. L. 105–261, §361(b), added subsec. (c).
1996—Pub. L. 104–106 struck out "private" after "stores:" in section catchline, designated existing text as subsec. (a), inserted heading, and added subsec. (b).
Subsec. (b)(1). Pub. L. 104–201 substituted "another element of the Department of Defense or with another Federal department, agency, or instrumentality to provide or obtain services" for "another department, agency, or instrumentality of the Department of Defense or another Federal agency to provide services".
1988—Pub. L. 100–456 inserted at end "A contract with a private person for the operation of any commissary store may not require or permit the contractor to carry out functions for the procurement of products to be sold in the store or to engage in functions relating to the overall management of a commissary system or the management of any such store. Such functions shall be carried out by personnel of the Department of Defense under regulations approved by the Secretary of Defense."
Statutory Notes and Related Subsidiaries
Effective Date of 1998 Amendment
Pub. L. 105–261, div. A, title III, §363(b), Oct. 17, 1998, 112 Stat. 1986, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to services provided or obtained on or after the date of the enactment of this Act [Oct. 17, 1998]."
Acceptance of Military Star Card at Commissaries
Pub. L. 114–328, div. A, title VI, §662, Dec. 23, 2016, 130 Stat. 2172, provided that:
"(a) In General.—The Secretary of Defense shall ensure that—
"(1) commissary stores accept as payment the Military Star Card; and
"(2) any financial liability of the United States relating to such acceptance as payment be assumed by the Army and Air Force Exchange Service.
"(b) Military Star Card Defined.—In this section, the term 'Military Star Card' means a credit card administered under the Exchange Credit Program by the Army and Air Force Exchange Service."
Demonstration Program for Operation of Certain Commissary Stores by Nonappropriated Fund Instrumentalities
Pub. L. 102–484, div. A, title III, §363, Oct. 23, 1992, 106 Stat. 2380, required the Secretary of Defense to establish a demonstration program to determine the feasibility of having nonappropriated fund instrumentalities operate commissary stores at military installations and provided for termination of the program and submission of a report on its implementation, not later than the expiration of the one-year period beginning on Oct. 23, 1992.