### §4357. Federal endowment programs for Gallaudet University and the National Technical Institute for the Deaf

#### (a) Establishment of programs

(1) The Secretary and the Board of Trustees of Gallaudet University are authorized to establish the Gallaudet University Federal Endowment Fund as a permanent endowment fund, in accordance with this section, for the purpose of promoting the financial independence of the University. The Secretary and the Board of Trustees may enter into such agreements as may be necessary to carry out the purposes of this section with respect to the University.

(2) The Secretary and the Board of Trustees or other governing body of the institution of higher education with which the Secretary has an agreement under section 4332 of this title are authorized to establish the National Technical Institute for the Deaf Federal Endowment Fund as a permanent endowment fund, in accordance with this section, for the purpose of promoting the financial independence of NTID. The Secretary and the Board or other governing body may enter into such agreements as may be necessary to carry out the purposes of this section with respect to NTID.

#### (b) Federal payments

(1) The Secretary shall, consistent with this section, make payments to the Federal endowment funds established under subsection (a) from amounts appropriated under subsection (h) for the fund involved.

(2) Subject to the availability of appropriations, the Secretary shall make payments to each Federal endowment fund in amounts equal to sums contributed to the fund from non-Federal sources during the fiscal year in which the appropriations are made available (excluding transfers from other endowment funds of the institution involved).

#### (c) Investments

(1) Except as provided in subsection (e), the University and NTID, respectively, shall invest the Federal contribution of its Federal endowment fund corpus and income in instruments and securities offered through one or more cooperative service organizations of operating educational organizations under section 501(f) of title 26, or in low-risk instruments and securities in which a regulated insurance company may invest under the laws of the State in which the institution involved is located.

(2) In managing the investment of its Federal endowment fund, the University or NTID shall exercise the judgment and care, under the prevailing circumstances, that a person of prudence, discretion, and intelligence would exercise in the management of that person's own business affairs.

(3) Neither the University nor NTID may invest its Federal endowment fund corpus or income in real estate, or in instruments or securities issued by an organization in which an executive officer, a member of the Board of Trustees of the University or of the host institution, or a member of the advisory group established under section 4332 of this title is a controlling shareholder, director, or owner within the meaning of Federal securities laws and other applicable laws. Neither the University nor NTID may assign, hypothocate,1 encumber, or create a lien on the Federal endowment fund corpus without specific written authorization of the Secretary.

#### (d) Withdrawals and expenditures

(1) Except as provided in paragraph (3)(B), neither the University nor NTID may withdraw or expend any of the corpus of its Federal endowment fund.

(2)(A) The University and NTID, respectively, may withdraw or expend the income of its Federal endowment fund only for expenses necessary to the operation of that institution, including expenses of operations and maintenance, administration, academic and support personnel, construction and renovation, community and student services programs, technical assistance, and research.

(B) Neither the University nor NTID may withdraw or expend the income of its Federal endowment fund for any commercial purpose.

(C) The University and NTID shall maintain records of the income generated from its respective Federal endowment fund for the prior fiscal year.

(3)(A) Except as provided in subparagraph (B), the University and NTID, respectively, may, on an annual basis, withdraw or expend not more than 50 percent of the income generated from its Federal endowment fund from the current fiscal year.

(B) The Secretary may permit the University or NTID to withdraw or expend a portion of its Federal endowment fund corpus or more than 50 percent of the income generated from its Federal endowment fund from the prior fiscal year if the institution involved demonstrates, to the Secretary's satisfaction, that such withdrawal or expenditure is necessary because of—

(i) a financial emergency, such as a pending insolvency or temporary liquidity problem;

(ii) a life-threatening situation occasioned by natural disaster or arson; or

(iii) another unusual occurrence or exigent circumstance.

#### (e) Investment and expenditure flexibility

The corpus associated with a Federal payment (and its non-Federal match) made to the Federal endowment fund of the University or NTID shall not be subject to the investment limitations of subsection (c)(1) after 10 fiscal years following the fiscal year in which the funds are matched, and the income generated from such corpus after the tenth fiscal year described in this subsection shall not be subject to such investment limitations or to the withdrawal and expenditure limitations of subsection (d)(3).

#### (f) Recovery of payments

After notice and an opportunity for a hearing, the Secretary is authorized to recover any Federal payments under this section if the University or NTID—

(1) makes a withdrawal or expenditure of the corpus or income of its Federal endowment fund that is not consistent with this section;

(2) fails to comply with the investment standards and limitations under this section; or

(3) fails to account properly to the Secretary concerning the investment of or expenditures from the Federal endowment fund corpus or income.

#### (g) Definitions

As used in this section:

(1) The term "corpus", with respect to a Federal endowment fund under this section, means an amount equal to the Federal payments to such fund, amounts contributed to the fund from non-Federal sources, and appreciation from capital gains and reinvestment of income.

(2) The term "Federal endowment fund" means a fund, or a tax-exempt foundation, established and maintained pursuant to this section by the University or NTID, as the case may be, for the purpose of generating income for the support of the institution involved.

(3) The term "income", with respect to a Federal endowment fund under this section, means an amount equal to the dividends and interest accruing from investments of the corpus of such fund.

(4) The term "institution involved" means the University or NTID, as the case may be.

#### (h) Authorization of appropriations

(1) In the case of the University, there are authorized to be appropriated for the purposes of this section such sums as may be necessary for each of the fiscal years 2009 through 2014.

(2) In the case of NTID, there are authorized to be appropriated for the purposes of this section such sums as may be necessary for each of the fiscal years 2009 through 2014.

(3) Amounts appropriated under paragraph (1) or (2) shall remain available until expended.

#### (i) Effective date

The provisions of this section shall take effect as if included in this chapter as enacted on August 4, 1986.

(Pub. L. 99–371, title II, §207, as added Pub. L. 102–421, title I, §137(2), Oct. 16, 1992, 106 Stat. 2159; amended Pub. L. 103–73, title II, §204(f), Aug. 11, 1993, 107 Stat. 735; Pub. L. 105–244, title IX, §919, Oct. 7, 1998, 112 Stat. 1831; Pub. L. 110–315, title IX, §909, Aug. 14, 2008, 122 Stat. 3453.)

#### **Editorial Notes**

#### Prior Provisions

A prior section 4357, Pub. L. 99–371, title II, §207, formerly title IV, §407, Aug. 4, 1986, 100 Stat. 791; renumbered title II, §207, Pub. L. 102–421, title I, §101(b)(5), (6), Oct. 16, 1992, 106 Stat. 2151, provided for Gallaudet University Federal endowment program, prior to repeal effective Oct. 1, 1992, by Pub. L. 102–421, title I, §§137(1), 161, Oct. 16, 1992, 106 Stat. 2159, 2164.

#### Amendments

2008—Subsec. (h)(1), (2). Pub. L. 110–315 substituted "fiscal years 2009 through 2014" for "fiscal years 1998 through 2003".

1998—Subsec. (b)(2). Pub. L. 105–244, §919(1)(A), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Subject to the availability of appropriations and the non-Federal matching requirements of paragraph (3), the Secretary shall make payments to each Federal endowment fund in amounts equal to sums contributed to the fund from non-Federal sources (excluding transfers from other endowment funds of the institution involved)."

Subsec. (b)(3). Pub. L. 105–244, §919(1)(B), struck out par. (3) which read as follows: "Effective for fiscal year 1993 and each succeeding fiscal year, for any fiscal year in which the sums contributed to the Federal endowment fund of the institution involved from non-Federal sources exceed $1,000,000, the non-Federal contribution to the Federal endowment fund shall be $2 for each Federal dollar provided in excess of $1,000,000 (excluding transfers from other endowment funds of the institution involved)."

Subsec. (c)(1). Pub. L. 105–244, §919(2), inserted "the Federal contribution of" after "shall invest".

Subsec. (d)(2)(C). Pub. L. 105–244, §919(3)(A), substituted "The University" for "Beginning on October 1, 1992, the University".

Subsec. (d)(3)(A). Pub. L. 105–244, §919(3)(B), substituted "current" for "prior".

Subsec. (h)(1), (2). Pub. L. 105–244, §919(4), substituted "1998 through 2003" for "1993 through 1997".

1993—Subsec. (c)(3). Pub. L. 103–73, §204(f)(1), substituted "advisory group established under section 4332 of this title" for "Advisory Board of NTID".

Subsec. (e). Pub. L. 103–73, §204(f)(2), substituted "such investment limitations or" for "such investment limitations and".

Subsec. (i). Pub. L. 103–73, §204(f)(3), substituted "this chapter as enacted on August 4, 1986" for "the provisions of the Education of the Deaf Act of 1986".

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 1998 Amendment

Amendment by Pub. L. 105–244 effective Oct. 1, 1998, except as otherwise provided in Pub. L. 105–244, see section 3 of Pub. L. 105–244, set out as a note under section 1001 of this title.

1 So in original. Probably should be "hypothecate,"