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‘‘(i) 5 shall be representative of the
experts in pediatric medicine and research
field;
‘‘(ii) 1 shall be a biomedical ethicist;
and
‘‘(iii) 5 shall be representatives of the
general public, which may include rep-
resentatives of affected industries.
‘‘(D)(i) Not later than 30 days after the
date of the enactment of the Best Pharma-
ceuticals for Children Act, the Director of NIH
shall convene a meeting of the ex officio mem-
bers of the Board to—
‘‘(I) incorporate the Foundation and
establish the general policies of the Foun-
dation for carrying out the purposes of
subsection (b), including the establishment
of the bylaws of the Foundation; and
‘‘(II) appoint the members of the
Board in accordance with subparagraph
(C).
‘‘(ii) Upon the appointment of the mem-
bers of the Board under clause (i)(II), the
terms of service of the ex officio members of the
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Board as members of the Board shall termi-
nate.
‘‘(E) The agreement of not less than three-
fifths of the members of the ex officio members
of the Board shall be required for the appoint-
ment of each member to the initial Board.
‘‘(F) No employee of the National Insti-
tutes of Health shall be appointed as a member
of the Board.
‘‘(2) CHAIR.—
‘‘(A) The ex officio members of the Board
under paragraph (1)(B) shall designate an indi-
vidual to serve as the initial Chair of the Board.
‘‘(B) Upon the termination of the term of
service of the initial Chair of the Board, the ap-
pointed members of the Board shall elect a
member of the Board to serve as the Chair of
the Board.
‘‘(3) TERMS AND VACANCIES.—
‘‘(A) The term of office of each member of
the Board appointed under paragraph (1)(C)
shall be 5 years, except that the terms of offices
for the initial appointed members of the Board
shall expire as determined by the ex officio
members and the Chair.
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‘‘(B) Any vacancy in the membership of
the Board shall be filled in the manner in which
the original position was made and shall not af-
fect the power of the remaining members to
execute the duties of the Board.
‘‘(C) If a member of the Board does not
serve the full term applicable under subpara-
graph (A), the individual appointed to fill the
resulting vacancy shall be appointed for the re-
mainder of the term of the predecessor of the
individual.
‘‘(D) A member of the Board may continue
to serve after the expiration of the term of the
member until a successor is appointed.
‘‘(4) COMPENSATION.—Members of the Board
may not receive compensation for service on the
Board. Such members may be reimbursed for travel,
subsistence, and other necessary expenses incurred
in carrying out the duties of the Board, as set forth
in the bylaws issued by the Board.
‘‘(5) MEETINGS AND QUORUM.—A majority of
the members of the Board shall constitute a quorum
for purposes of conducting the business of the
Board.
‘‘(6) CERTAIN BYLAWS.—
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‘‘(A) In establishing bylaws under this sub-
section, the Board shall ensure that the fol-
lowing are provided for:
‘‘(i) Policies for the selection of the
officers, employees, and agents of the
Foundation.
‘‘(ii) Policies, including ethical stand-
ards, for the acceptance, solicitation, and
disposition of donations and grants to the
Foundation and for the disposition of the
assets of the Foundation. Policies with re-
spect to ethical standards shall ensure that
officers, employees and agents of the
Foundation (including members of the
Board) avoid encumbrances that would re-
sult in a conflict of interest, including a fi-
nancial conflict of interest or a divided al-
legiance. Such policies shall include re-
quirements for the provision of information
concerning any ownership or controlling in-
terest in entities related to the activities of
the Foundation by such officers, employees
and agents and their spouses and relatives.
‘‘(iii) Policies for the conduct of the
general operations of the Foundation.
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‘‘(B) In establishing bylaws under this sub-
section, the Board shall ensure that such by-
laws (and activities carried out under the by-
laws) do not—
‘‘(i) reflect unfavorably upon the abil-
ity of the Foundation to carry out its re-
sponsibilities or official duties in a fair and
objective manner; or
‘‘(ii) compromise, or appear to com-
promise, the integrity of any governmental
agency or program, or any officer or em-
ployee involved in such program.
‘‘(e) INCORPORATION.—The initial members of the
Board shall serve as incorporators and shall take whatever
actions necessary to incorporate the Foundation.
‘‘(f) NONPROFIT STATUS.—The Foundation shall be
considered to be a corporation under section 501(c) of the
Internal Revenue Code of 1986, and shall be subject to
the provisions of such section.
‘‘(g) EXECUTIVE DIRECTOR.—
‘‘(1) IN GENERAL.—The Foundation shall have
an Executive Director who shall be appointed by the
Board and shall serve at the pleasure of the Board.
The Executive Director shall be responsible for the
day-to-day operations of the Foundation and shall
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have such specific duties and responsibilities as the
Board shall prescribe.
‘‘(2) COMPENSATION.—The rate of compensa-
tion of the Executive Director shall be fixed by the
Board.
‘‘(h) POWERS.—In carrying out subsection (b), the
Foundation shall operate under the direction of its Board,
and may—
‘‘(1) adopt, alter, and use a corporate seal,
which shall be judicially noticed;
‘‘(2) provide for 1 or more officers, employees,
and agents, as may be necessary, define their duties,
and require surety bonds or make other provisions
against losses occasioned by acts of such persons;
‘‘(3) hire, promote, compensate, and discharge
officers and employees of the Foundation, and define
the duties of the officers and employees;
‘‘(4) with the consent of any executive depart-
ment or independent agency, use the information,
services, staff, and facilities of such in carrying out
this section;
‘‘(5) sue and be sued in its corporate name, and
complain and defend in courts of competent jurisdic-
tion;
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‘‘(6) modify or consent to the modification of
any contract or agreement to which it is a party or
in which it has an interest under this part;
‘‘(7) establish a process for the selection of can-
didates for positions under subsection (c);
‘‘(8) solicit, accept, hold, administer, invest, and
spend any gift, devise, or bequest of real or personal
property made to the Foundation;
‘‘(9) enter into such other contracts, leases, co-
operative agreements, and other transactions as the
Executive Director considers appropriate to conduct
the activities of the Foundation; and
‘‘(10) exercise other powers as set forth in this
section, and such other incidental powers as are nec-
essary to carry out its powers, duties, and functions
in accordance with this part.
‘‘(i) ADMINISTRATIVE CONTROL.—No participant in
the program established under this part shall exercise any
administrative control over any Federal employee, nor
shall the Foundation attempt to influence an executive
branch agency or employee.
‘‘(j) GENERAL PROVISIONS.—
‘‘(1) FOUNDATION INTEGRITY.—The members
of the Board shall be accountable for the integrity
of the operations of the Foundation and shall ensure
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such integrity through the development and enforce-
ment of criteria and procedures relating to stand-
ards of conduct (including those developed under
subsection (d)(6)(A)(ii), financial disclosure state-
ments, conflict of interest rules, recusal and waiver
rules, audits and other matter determined appro-
priate by the Board.
‘‘(2) FINANCIAL
CONFLICTS
OF
INTEREST.—
Any individual who is an officer, employee, or mem-
ber of the Board of the Foundation may not (in ac-
cordance with policies and requirements developed
under subsection (d)(6)(A)(ii) personally or substan-
tially participate in the consideration or determina-
tion by the Foundation of any matter that would di-
rectly 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
of 1978) of the individual, of any business organiza-
tion or other entity, or of which the individual is an
officer or employee, or is negotiating for employ-
ment, or in which the individual has any other finan-
cial interest.
‘‘(3) AUDITS; AVAILABILITY OF RECORDS.—The
Foundation shall—
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‘‘(A) provide for annual audits of the fi-
nancial condition of the Foundation; and
‘‘(B) make such audits, and all other
records, documents, and other papers of the
Foundation, available to the Secretary and the
Comptroller General of the United States for
examination or audit.
‘‘(4) REPORTS.—
‘‘(A) Not later than 5 months following the
end of each fiscal year, the Foundation shall
publish a report describing the activities of the
Foundation during the preceding fiscal year.
Each such report shall include for the fiscal
year involved a comprehensive statement of the
operations, activities, financial condition, and
accomplishments of the Foundation.
‘‘(B) With respect to the financial condi-
tion of the Foundation, each report under sub-
paragraph (A) shall include the source, and a
description of, all gifts or grants to the Founda-
tion of real or personal property, and the source
and amount of all gifts or grants to the Foun-
dation of money. Each such report shall include
a specification of any restrictions on the pur-
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poses for which gifts or grants to the Founda-
tion may be used.
‘‘(C) The Foundation shall make copies of
each report submitted under subparagraph (A)
available for public inspection, and shall upon
request provide a copy of the report to any indi-
vidual for a charge not exceeding the cost of
providing the copy.
‘‘(D) The Board shall annually hold a pub-
lic meeting to summarize the activities of the
Foundation and distribute written reports con-
cerning such activities and the scientific results
derived from such activities.
‘‘(5) SERVICE OF FEDERAL EMPLOYEES.—Fed-
eral employees may serve on committees advisory to
the Foundation and otherwise cooperate with and
assist the Foundation in carrying out its function, so
long as the employees do not direct or control Foun-
dation activities.
‘‘(6) RELATIONSHIP
WITH
EXISTING
ENTI-
TIES.—The Foundation may, pursuant to appro-
priate agreements, acquire the resources of existing
nonprofit private corporations with missions similar
to the purposes of the Foundation.