Calendar No. 677 111th CONGRESS 2d Session

S. 1275

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.

Short title

This Act may be cited as the

National Foundation on Physical Fitness and Sports Establishment Act

Establishment and purpose of Foundation

(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. (b)

Purposes

The purposes of the Foundation are— (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 (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. (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.

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 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 (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.

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.

(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. (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. (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. (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 officers and employees of the Foundation: (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. (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. (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. (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. (i)

General Powers

The Board may complete the organization of the Foundation by— (1)appointing officers and 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.

Rights and obligations 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 shall be judicially noticed. (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— (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; (2)to acquire by purchase or exchange any real or personal property or interest therein; (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; (4)to sue and be sued, and complain and defend itself in any court of competent jurisdiction, except for gross negligence; (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 (6)to do any and all acts necessary and proper to carry out the purposes of the Foundation.

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.

Protection and uses of trademarks and trade names

(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— (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; (2)the official seal of the Foundation; or (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;

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).

(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.

Volunteer status

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)).

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, 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. (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.

Authorization of appropriations

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.

Short title

This Act may be cited as the

National Foundation on Fitness, Sports, and Nutrition Establishment Act

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.

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

Reimbursement of Expenses

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.

Powers and duties of the Foundation

(a)

In General

(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

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.