118 STAT. 1967 PUBLIC LAW 108–375—OCT. 28, 2004 right to operate convenience stores, shopettes, and troop stores, including such stores established to support contingency operations. ‘‘(3) 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). 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. ‘‘(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.’’; (D) in subsection (e), as so redesignated, by striking ‘‘(consistent with this section and section 2685 of this title)’’ in paragraph (1); (E) in subsection (g), as so redesignated, by striking ‘‘Subsections (c) and (d)’’ and inserting ‘‘Subsections (d) and (e)’’; and (F) by adding at the end the following new subsection: ‘‘(h) USE OF SURCHARGE FOR CONSTRUCTION, REPAIR, IMPROVE MENT, 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 phys ical 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 proc essing facility. ‘‘(2)(A) The Secretary of Defense may authorize a non appropriated 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) 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) or (2), 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. ‘‘(4) Revenues received by the Secretary of Defense from the following sources or activities of commissary store facilities shall
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