10 USC 2485(h): Food donation program

          
Sec. 2485. Commissary stores: operation

    (a) Private Operation.--(1) 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.
    (2) 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.
    (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 4(6) of the Office of 
Federal Procurement Policy Act (41 U.S.C. 403(6)).
    (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 depre

[[Page 1261]]

ciation 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

[[Page 1262]]

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.

(Aug. 10, 1956, ch. 1041, 70A Stat. 141, Sec. 2482; Pub. L. 100-456, 
div. A, title III, Sec. 321, Sept. 29, 1988, 102 Stat. 1952; Pub. L. 
104-106, div. A, title III, Sec. 331(a), Feb. 10, 1996, 110 Stat. 260; 
Pub. L. 104-201, div. A, title III, Sec. 341(b), Sept. 23, 1996, 110 
Stat. 2489; Pub. L. 105-261, div. A, title III, Secs. 361(b), 
363(a), Oct. 17, 1998, 112 Stat. 1984, 1985; Pub. L. 108-136, div. A, 
title VI, Sec. 653, Nov. 24, 2003, 117 Stat. 1522; renumbered Sec. 2485 
and amended Pub. L. 108-375, div. A, title VI, Sec. 651(a)(2), (6), (7), 
Oct. 28, 2004, 118 Stat. 1964, 1968; Pub. L. 109-163, div. A, title VI, 
Sec. 672, Jan. 6, 2006, 119 Stat. 3319.)

                                          Historical and Revision Notes
----------------------------------------------------------------------------------------------------------------
            Revised section                      Source (U.S. Code)               Source (Statutes at Large)
----------------------------------------------------------------------------------------------------------------
2482..................................  [Uncodified].                        Aug. 1, 1953, ch. 305, Sec.  624
                                                                              (last proviso), 67 Stat. 353.
----------------------------------------------------------------------------------------------------------------

    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.


                            Prior Provisions

    A prior section 2485, added Pub. L. 99-145, title XIV, Sec. 1460(a), 
Nov. 8, 1985, 99 Stat. 764; amended Pub. L. 101-510, div. A, title III, 
Sec. 324(a), (b)(1), Nov. 5, 1990, 104 Stat. 1530; Pub. L. 104-201, div. 
A, title III, Sec. 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, Sec. 651(a)(1), 
Oct. 28, 2004, 118 Stat. 1964.
    A prior section 2486 was renumbered section 2484 of this title.


                               Amendments

    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, Sec. 651(a)(2), (6), renumbered section 2482 
of this title as this section.
    Subsec. (b)(2). Pub. L. 108-375, Sec. 651(a)(7)(A), substituted 
``section 2483'' for ``section 2484''.
    Subsec. (c)(2). Pub. L. 108-375, Sec. 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, Sec. 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, Sec. 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, Sec. 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.''


                    Effective Date of 1998 Amendment

    Pub. L. 105-261, div. A, title III, Sec. 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].''


  Demonstration Program for Operation of Certain Commissary Stores by 
                 Nonappropriated Fund Instrumentalities

    Pub. L. 102-484, div. A, title III, Sec. 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.