[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1275 Reported in Senate (RS)]

                                                       Calendar No. 677
111th CONGRESS
  2d Session
                                S. 1275

 To establish a National Foundation on Physical Fitness and Sports to 
   carry out activities to support and supplement the mission of the 
          President's Council on Physical Fitness and Sports.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 16, 2009

 Mr. Warner (for himself, Mr. Udall of Colorado, Mr. Bayh, Mr. Burris, 
 Mr. Carper, Mr. Lugar, Mr. Inouye, Mr. Merkley, Mr. Cardin, Mr. Brown 
of Massachusetts, and Mr. Begich) introduced the following bill; which 
  was read twice and referred to the Committee on Health, Education, 
                          Labor, and Pensions

                            December 7, 2010

               Reported by Mr. Harkin, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
 To establish a National Foundation on Physical Fitness and Sports to 
   carry out activities to support and supplement the mission of the 
          President's Council on Physical Fitness and Sports.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``National Foundation on 
Physical Fitness and Sports Establishment Act''.</DELETED>

<DELETED>SEC. 2. ESTABLISHMENT AND PURPOSE OF FOUNDATION.</DELETED>

<DELETED>    (a) Establishment.--There is established the National 
Foundation on Physical Fitness and Sports (hereinafter in this Act 
referred to as the ``Foundation''). The Foundation is a charitable and 
nonprofit corporation and is not an agency or establishment of the 
United States.</DELETED>
<DELETED>    (b) Purposes.--The purposes of the Foundation are--
</DELETED>
        <DELETED>    (1) in conjunction with the President's Council on 
        Physical Fitness and Sports, to develop a list and description 
        of programs, events and other activities which would further 
        the goals outlined in Executive Order 12345 and with respect to 
        which combined private and governmental efforts would be 
        beneficial; and</DELETED>
        <DELETED>    (2) to encourage and promote the participation by 
        private organizations in the activities referred to in 
        subsection (b)(1) and to encourage and promote private gifts of 
        money and other property to support those activities.</DELETED>
<DELETED>    (c) Disposition of Money and Property.--At least annually 
the Foundation shall transfer, after the deduction of the 
administrative expenses of the Foundation, the balance of any 
contributions received for the activities referred to in subsection 
(b), to the United States Public Health Service Gift Fund pursuant to 
section 2701 of the Public Health Service Act (42 U.S.C. 300aaa) for 
expenditure pursuant to the provisions of that section and consistent 
with the purposes for which the funds were donated.</DELETED>

<DELETED>SEC. 3. BOARD OF DIRECTORS OF THE FOUNDATION.</DELETED>

<DELETED>    (a) Establishment and Membership.--The Foundation shall 
have a governing Board of Directors (hereinafter referred to in this 
Act as the ``Board''), which shall consist of 9 members each of whom 
shall be a United States citizen and--</DELETED>
        <DELETED>    (1) 3 of whom must be knowledgeable or experienced 
        in one or more fields directly connected with physical fitness, 
        sports, or the relationship between health status and physical 
        exercise; and</DELETED>
        <DELETED>    (2) 6 of whom must be leaders in the private 
        sector with a strong interest in physical fitness, sports, or 
        the relationship between health status and physical 
        exercise.</DELETED>
<DELETED>The membership of the Board, to the extent practicable, shall 
represent diverse professional specialties relating to the achievement 
of physical fitness through regular participation in programs of 
exercise, sports, and similar activities. The Assistant Secretary for 
Health, the Executive Director of the President's Council on Physical 
Fitness and Sports, the Director for the National Center for Chronic 
Disease Prevention and Health Promotion, the Director of the National 
Heart, Lung, and Blood Institute, and the Director for the Centers for 
Disease Control and Prevention shall be ex officio, nonvoting members 
of the Board. Appointment to the Board or its staff shall not 
constitute employment by, or the holding of an office of, the United 
States for the purposes of any Federal employment or other 
law.</DELETED>
<DELETED>    (b) Appointments.--Within 90 days from the date of 
enactment of this Act, the members of the Board will be appointed. 
Three members of the Board will be appointed by the Secretary 
(hereinafter referred to in this Act as the ``Secretary''), 2 by the 
majority leader of the Senate, 1 by the minority leader of the Senate, 
2 by the Speaker of the House of Representatives, 1 by the minority 
leader of the House of Representatives.</DELETED>
<DELETED>    (c) Terms.--The members of the Board shall serve for a 
term of 6 years. A vacancy on the Board shall be filled within 60 days 
of the vacancy in the same manner in which the original appointment was 
made and shall be for the balance of the term of the individual who was 
replaced. No individual may serve more than 2 consecutive terms as a 
member.</DELETED>
<DELETED>    (d) Chairman.--The Chairman shall be elected by the Board 
from its members for a 2-year term and will not be limited in terms or 
service.</DELETED>
<DELETED>    (e) Quorum.--A majority of the current membership of the 
Board shall constitute a quorum for the transaction of 
business.</DELETED>
<DELETED>    (f) Meetings.--The Board shall meet at the call of the 
Chairman at least once a year. If a member misses 3 consecutive 
regularly scheduled meetings, that member may be removed from the Board 
and the vacancy filled in accordance with subsection (c).</DELETED>
<DELETED>    (g) Reimbursement of Expenses.--Members of the Board shall 
serve without pay, but may be reimbursed for the actual and necessary 
traveling and subsistence expenses incurred by them in the performance 
of the duties of the Foundation, subject to the same limitations on 
reimbursement that are imposed upon employees of Federal 
agencies.</DELETED>
<DELETED>    (h) Limitations.--The following limitations apply with 
respect to the appointment of officers and employees of the 
Foundation:</DELETED>
        <DELETED>    (1) Officers and employees may not be appointed 
        until the Foundation has sufficient funds to pay them for their 
        service. No individual so appointed may receive pay in excess 
        of the annual rate of basic pay in effect for Executive Level V 
        in the Federal service.</DELETED>
        <DELETED>    (2) The first officer or employee appointed by the 
        Board shall be the Secretary of the Board who shall serve, at 
        the direction of the Board, as its chief operating officer and 
        shall be knowledgeable and experienced in matters relating to 
        physical fitness and sports.</DELETED>
        <DELETED>    (3) No Public Health Service employee nor the 
        spouse or dependent relative of such an employee may serve as 
        an officer or member of the Board of Directors or as an 
        employee of the Foundation.</DELETED>
        <DELETED>    (4) Any individual who is an officer, employee, or 
        member of the Board of the Foundation may not (in accordance 
        with the policies developed under subsection (i)) personally or 
        substantially participate in the consideration or determination 
        by the Foundation of any matter that would directly or 
        predictably affect any financial interest of the individual or 
        a relative (as such term is defined in section 109(16) of the 
        Ethics in Government Act, 1978) of the individual, of any 
        business organization, or other entity, or of which the 
        individual is an officer or employee, is negotiating for 
        employment, or in which the individual has any other financial 
        interest.</DELETED>
<DELETED>    (i) General Powers.--The Board may complete the 
organization of the Foundation by--</DELETED>
        <DELETED>    (1) appointing officers and employees;</DELETED>
        <DELETED>    (2) adopting a constitution and bylaws consistent 
        with the purposes of the Foundation and the provision of this 
        Act; and</DELETED>
        <DELETED>    (3) undertaking such other acts as may be 
        necessary to carry out the provisions of this Act.</DELETED>
<DELETED>In establishing bylaws under this subsection, the Board shall 
provide for policies with regard to financial conflicts of interest and 
ethical standards for the acceptance, solicitation and disposition of 
donations and grants to the Foundation.</DELETED>

<DELETED>SEC. 4. RIGHTS AND OBLIGATIONS OF THE FOUNDATION.</DELETED>

<DELETED>    (a) In General.--The Foundation--</DELETED>
        <DELETED>    (1) shall have perpetual succession;</DELETED>
        <DELETED>    (2) may conduct business throughout the several 
        States, territories, and possessions of the United 
        States;</DELETED>
        <DELETED>    (3) shall have its principal offices in or near 
        the District of Columbia; and</DELETED>
        <DELETED>    (4) shall at all times maintain a designated agent 
        authorized to accept service of process for the 
        Foundation.</DELETED>
<DELETED>The serving of notice to, or service of process upon, the 
agent required under paragraph (4), or mailed to the business address 
of such agent, shall be deemed as service upon or notice to the 
Foundation.</DELETED>
<DELETED>    (b) Seal.--The Foundation shall have an official seal 
selected by the Board which shall be judicially noticed.</DELETED>
<DELETED>    (c) Powers.--To carry out its purposes under section 2, 
and subject to the specific provisions thereof, the Foundation shall 
have the usual powers of a corporation acting as a trustee in the 
District of Columbia, including the power--</DELETED>
        <DELETED>    (1) except as otherwise provided herein, to 
        accept, receive, solicit, hold, administer and use any gift, 
        devise, or bequest, either absolutely or in trust, of real or 
        personal property or any income therefrom or other interest 
        therein;</DELETED>
        <DELETED>    (2) to acquire by purchase or exchange any real or 
        personal property or interest therein;</DELETED>
        <DELETED>    (3) unless otherwise required by the instrument of 
        transfer, to sell, donate, lease, invest, reinvest, retain or 
        otherwise dispose of any property or income 
        therefrom;</DELETED>
        <DELETED>    (4) to sue and be sued, and complain and defend 
        itself in any court of competent jurisdiction, except for gross 
        negligence;</DELETED>
        <DELETED>    (5) to enter into contracts or other arrangements 
        with public agencies and private organizations and persons and 
        to make such payments as may be necessary to carry out its 
        functions; and</DELETED>
        <DELETED>    (6) to do any and all acts necessary and proper to 
        carry out the purposes of the Foundation.</DELETED>
<DELETED>For purposes of this Act, an interest in real property shall 
be treated as including easements or other rights for preservation, 
conservation, protection, or enhancement by and for the public of 
natural, scenic, historic, scientific, educational inspirational or 
recreational resources. A gift, devise, or bequest may be accepted by 
the Foundation even though it is encumbered, restricted, or subject to 
beneficial interests of private persons if any current or future 
interest therein is for the benefit of the Foundation.</DELETED>

<DELETED>SEC. 5. PROTECTION AND USES OF TRADEMARKS AND TRADE 
              NAMES.</DELETED>

<DELETED>    (a) Protection.--Without the consent of the Foundation in 
conjunction with the President's Council on Physical Fitness and 
Sports, any person who uses for the purpose of trade, uses to induce 
the sale of any goods or services, or uses to promote any theatrical 
exhibition, athletic performance or competition--</DELETED>
        <DELETED>    (1) the official seal of the President's Council 
        on Physical Fitness and Sports consisting of the eagle holding 
        an olive branch and arrows with shield breast encircled by name 
        ``President's Council on Physical Fitness and Sports'' and 
        consisting, depending upon placement, of diagonal 
        stripes;</DELETED>
        <DELETED>    (2) the official seal of the Foundation; 
        or</DELETED>
        <DELETED>    (3) any trademark, trade name, sign, symbol, or 
        insignia falsely representing association with or authorization 
        by the President's Council on Physical Fitness and Sports or 
        the Foundation;</DELETED>
<DELETED>shall be subject in a civil action by the Foundation for the 
remedies provided in the Act of July 9, 1946 (60 Stat. 427; popularly 
known as the Trademark Act of 1946).</DELETED>
<DELETED>    (b) Uses.--The Foundation, in conjunction with the 
President's Council on Physical Fitness and Sports, may authorize 
contributors and suppliers of goods or services to use the trade name 
or the President's Council on Physical Fitness and Sports and the 
Foundation as well as any trademark, seal, symbol, insignia, or emblem 
of the President's Council on Physical Fitness and Sports or the 
Foundation in advertising that the contributors, goods, or services 
when donated, supplied, or furnished to or for the use of, or approved, 
selected, or used by the President's Council on Physical Fitness and 
Sports or the Foundation.</DELETED>

<DELETED>SEC. 6. VOLUNTEER STATUS.</DELETED>

<DELETED>    The Foundation may accept, without regard to the civil 
service classification laws, rules, or regulations, the services of 
volunteers in the performance of the functions authorized herein, in 
the manner provided for under section 7(c) of the Fish and Wildlife Act 
of 1956 (16 U.S.C. 742f(c)).</DELETED>

<DELETED>SEC. 7. AUDIT, REPORT REQUIREMENTS, AND PETITION OF ATTORNEY 
              GENERAL FOR EQUITABLE RELIEF.</DELETED>

<DELETED>    (a) Audits.--For purposes of the Act entitled ``An Act for 
audit of accounts of private corporations established under Federal 
law'', approved August 30, 1964 (Public Law 88-504, 36 U.S.C. 1101-
1103), the Foundation shall be treated as a private corporation under 
Federal law. The Inspector General of the Department of Health and 
Human Services and the Comptroller General of the United States shall 
have access to the financial and other records of the Foundation, upon 
reasonable notice.</DELETED>
<DELETED>    (b) Report.--The Foundation shall, as soon as practicable 
after the end of each fiscal year, transmit to the Secretary of Health 
and Human Services and to Congress a report of its proceedings and 
activities during such year, including a full and complete statement of 
its receipts, expenditures, and investments.</DELETED>
<DELETED>    (c) Relief With Respect to Certain Foundation Acts or 
Failure To Act.--If the Foundation--</DELETED>
        <DELETED>    (1) engages in, or threatens to engage in, any 
        act, practice or policy that is inconsistent with its purposes 
        set forth in section 2(b); or</DELETED>
        <DELETED>    (2) refuses, fails, or neglects to discharge its 
        obligations under this Act, or threaten to do so;</DELETED>
<DELETED>the Attorney General of the United States may petition in the 
United States District Court for the District of Columbia for such 
equitable relief as may be necessary or appropriate.</DELETED>

<DELETED>SEC. 8. AUTHORIZATION OF APPROPRIATIONS.</DELETED>

<DELETED>    For fiscal year 2010, there are authorized to be 
appropriated such sums as may be necessary, to be made available to the 
Foundation for organizational costs.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``National Foundation on Fitness, 
Sports, and Nutrition Establishment Act''.

SEC. 2. ESTABLISHMENT AND PURPOSE OF FOUNDATION.

    (a) Establishment.--There is established the National Foundation on 
Fitness, Sports, and Nutrition (hereinafter in this Act referred to as 
the ``Foundation''). The Foundation is a charitable and nonprofit 
corporation and is not an agency or establishment of the United States.
    (b) Purposes.--The purposes of the Foundation are--
            (1) in conjunction with the Office of the President's 
        Council on Fitness, Sports and Nutrition, to develop a list and 
        description of programs, events and other activities which 
        would further the purposes and functions outlined in Executive 
        Order 13265, as amended, and with respect to which combined 
        private and governmental efforts would be beneficial;
            (2) to encourage and promote the participation by private 
        organizations in the activities referred to in subsection 
        (b)(1) and to encourage and promote private gifts of money and 
        other property to support those activities; and
            (3) in consultation with such Office, to undertake and 
        support activities to further the purposes and functions of 
        such Executive Order.
    (c) Prohibition on Federal Funding.--The Foundation may not accept 
any Federal funds.

SEC. 3. BOARD OF DIRECTORS OF THE FOUNDATION.

    (a) Establishment and Membership.--The Foundation shall have a 
governing Board of Directors (hereinafter referred to in this Act as 
the ``Board''), which shall consist of 9 members each of whom shall be 
a United States citizen and--
            (1) 3 of whom should be knowledgeable or experienced in one 
        or more fields directly connected with physical fitness, 
        sports, nutrition, or the relationship between health status 
        and physical exercise; and
            (2) 6 of whom should be leaders in the private sector with 
        a strong interest in physical fitness, sports, nutrition, or 
        the relationship between health status and physical exercise.
The membership of the Board, to the extent practicable, should 
represent diverse professional specialties relating to the achievement 
of physical fitness through regular participation in programs of 
exercise, sports, and similar activities, or to nutrition. The 
Assistant Secretary for Health, the Executive Director of the 
President's Council on Fitness, Sports and Nutrition, the Director for 
the National Center for Chronic Disease Prevention and Health 
Promotion, the Director of the National Heart, Lung, and Blood 
Institute, and the Director for the Centers for Disease Control and 
Prevention shall be ex officio, nonvoting members of the Board. 
Appointment to the Board or its staff shall not constitute employment 
by, or the holding of an office of, the United States for the purposes 
of laws relating to Federal employment.
    (b) Appointments.--Within 90 days from the date of enactment of 
this Act, the members of the Board shall be appointed by the Secretary 
in accordance with this subsection. In selecting individuals for 
appointments to the Board, the Secretary should consult with--
            (1) the Speaker of the House of Representatives concerning 
        the appointment of one member;
            (2) the Majority Leader of the House of Representatives 
        concerning the appointment of one member;
            (3) the Majority Leader of the Senate concerning the 
        appointment of one member;
            (4) the President Pro Tempore concerning the appointment of 
        one member;
            (5) the Minority Leader of the House of Representatives 
        concerning the appointment of one member; and
            (6) the Minority Leader of the Senate concerning the 
        appointment of one member.
    (c) Terms.--The members of the Board shall serve for a term of 6 
years, except that the original members of the Board shall be appointed 
for staggered terms as determined appropriate by the Secretary. A 
vacancy on the Board shall be filled within 60 days of the vacancy in 
the same manner in which the original appointment was made and shall be 
for the balance of the term of the individual who was replaced. No 
individual may serve more than 2 consecutive terms as a member.
    (d) Chairman.--The Chairman shall be elected by the Board from its 
members for a 2-year term and shall not be limited in terms or service, 
other than as provided in subsection (c).
    (e) Quorum.--A majority of the current membership of the Board 
shall constitute a quorum for the transaction of business.
    (f) Meetings.--The Board shall meet at the call of the Chairman at 
least once a year. If a member misses 3 consecutive regularly scheduled 
meetings, that member may be removed from the Board and the vacancy 
filled in accordance with subsection (c).
    (g) Reimbursement of Expenses.--Members of the Board shall serve 
without pay, but may be reimbursed for the actual and necessary 
traveling and subsistence expenses incurred by them in the performance 
of the duties of the Foundation, subject to the same limitations on 
reimbursement that are imposed upon employees of Federal agencies.
    (h) Limitations.--The following limitations apply with respect to 
the appointment of employees of the Foundation:
            (1) Employees may not be appointed until the Foundation has 
        sufficient funds to pay them for their service. No individual 
        so appointed may receive a salary in excess of the annual rate 
        of basic pay in effect for Executive Level V in the Federal 
        service. A member of the Board may not receive compensation for 
        serving as an employee of the Foundation.
            (2) The first employee appointed by the Board shall be the 
        Secretary of the Board who shall serve, at the direction of the 
        Board, as its chief operating officer and shall be 
        knowledgeable and experienced in matters relating to physical 
        fitness, sports, and nutrition.
            (3) No Public Health Service employee nor the spouse or 
        dependent relative of such an employee may serve as a member of 
        the Board of Directors or as an employee of the Foundation.
            (4) Any individual who is an employee or member of the 
        Board of the Foundation may not (in accordance with the 
        policies developed under subsection (i)) personally or 
        substantially participate in the consideration or determination 
        by the Foundation of any matter that would directly or 
        predictably affect any financial interest of--
                    (A) the individual or a relative (as such term is 
                defined in section 109(16) of the Ethics in Government 
                Act, 1978) of the individual; or
                    (B) any business organization, or other entity, of 
                which the individual is an officer or employee, is 
                negotiating for employment, or in which the individual 
                has any other financial interest.
    (i) General Powers.--The Board may complete the organization of the 
Foundation by--
            (1) appointing employees;
            (2) adopting a constitution and bylaws consistent with the 
        purposes of the Foundation and the provision of this Act; and
            (3) undertaking such other acts as may be necessary to 
        carry out the provisions of this Act.
In establishing bylaws under this subsection, the Board shall provide 
for policies with regard to financial conflicts of interest and ethical 
standards for the acceptance, solicitation and disposition of donations 
and grants to the Foundation.

SEC. 4. POWERS AND DUTIES OF THE FOUNDATION.

    (a) In General.--The Foundation--
            (1) shall have perpetual succession;
            (2) may conduct business throughout the several States, 
        territories, and possessions of the United States;
            (3) shall have its principal offices in or near the 
        District of Columbia; and
            (4) shall at all times maintain a designated agent 
        authorized to accept service of process for the Foundation.
The serving of notice to, or service of process upon, the agent 
required under paragraph (4), or mailed to the business address of such 
agent, shall be deemed as service upon or notice to the Foundation.
    (b) Seal.--The Foundation shall have an official seal selected by 
the Board which may be used as provided for in section 5.
    (c) Incorporation; Nonprofit Status.--To carry out the purposes of 
the Foundation under section 2, the Board shall--
            (1) incorporate the Foundation in the District of Columbia; 
        and
            (2) establish such policies and bylaws as may be necessary 
        to ensure that the Foundation maintains status as an 
        organization that is described in section 501(c)(3) of the 
        Internal Revenue Code of 1986.
    (d) Powers.--Subject to the specific provisions of section 2, the 
Foundation, in consultation with the Office of the President's Council 
on Fitness, Sports, and Nutrition, shall have the power, directly or by 
the awarding of contracts or grants, to carry out or support activities 
for the purposes described in such section.
    (e) Treatment of Property.--For purposes of this Act, an interest 
in real property shall be treated as including easements or other 
rights for preservation, conservation, protection, or enhancement by 
and for the public of natural, scenic, historic, scientific, 
educational inspirational or recreational resources. A gift, devise, or 
bequest may be accepted by the Foundation even though it is encumbered, 
restricted, or subject to beneficial interests of private persons if 
any current or future interest therein is for the benefit of the 
Foundation.

SEC. 5. PROTECTION AND USES OF TRADEMARKS AND TRADE NAMES.

    (a) Trademarks of the Foundation.--Authorization for a contributor, 
or a supplier of goods or services, to use, in advertising regarding 
the contribution, goods, or services, the trade name of the Foundation, 
or any trademark, seal, symbol, insignia, or emblem of the Foundation 
may be provided only by the Foundation with the concurrence of the 
Secretary or the Secretary's designee.
    (b) Trademarks of the Council.----Authorization for a contributor 
or supplier described in subsection (a) to use, in such advertising, 
the trade name of the President's Council on Fitness, Sports, and 
Nutrition, or any trademark, seal, symbol, insignia, or emblem of such 
Council, may be provided--
            (1) by the Secretary or the Secretary's designee; or
            (2) by the Foundation with the concurrence of the Secretary 
        or the Secretary's designee.

SEC. 6. AUDIT, REPORT REQUIREMENTS, AND PETITION OF ATTORNEY GENERAL 
              FOR EQUITABLE RELIEF.

    (a) Audits.--For purposes of the Act entitled ``An Act for audit of 
accounts of private corporations established under Federal law'', 
approved August 30, 1964 (Public Law 88-504, 36 U.S.C. 1101-1103), the 
Foundation shall be treated as a private corporation under Federal law. 
The Inspector General of the Department of Health and Human Services 
and the Comptroller General of the United States shall have access to 
the financial and other records of the Foundation, upon reasonable 
notice.
    (b) Report.--The Foundation shall, not later than 60 days after the 
end of each fiscal year, transmit to the Secretary and to Congress a 
report of its proceedings and activities during such year, including a 
full and complete statement of its receipts, expenditures, and 
investments.
    (c) Relief With Respect to Certain Foundation Acts or Failure To 
Act.--If the Foundation--
            (1) engages in, or threatens to engage in, any act, 
        practice or policy that is inconsistent with its purposes set 
        forth in section 2(b); or
            (2) refuses, fails, or neglects to discharge its 
        obligations under this Act, or threaten to do so;
the Attorney General of the United States may petition in the United 
States District Court for the District of Columbia for such equitable 
relief as may be necessary or appropriate.
                                                       Calendar No. 677

111th CONGRESS

  2d Session

                                S. 1275

_______________________________________________________________________

                                 A BILL

 To establish a National Foundation on Physical Fitness and Sports to 
   carry out activities to support and supplement the mission of the 
          President's Council on Physical Fitness and Sports.

_______________________________________________________________________

                            December 7, 2010

                       Reported with an amendment