[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