42 U.S.C. § 290b — Establishment and duties of Foundation

(a) The Secretary, acting through the Director of NIH, must set up a nonprofit corporation called the Foundation for the National Institutes of Health (the "Foundation"). The Foundation is not part of the United States government. (b) The Foundation's purpose is to support NIH's mission — including collecting funds for pediatric drug research — and to build collaboration with biomedical researchers from universities, industry, and nonprofit organizations. (c)(1) To support that purpose, the Foundation may solicit and accept gifts, grants, and donations; open accounts; and invest and spend money for: (A) endowed positions tied to NIH's research program — funds may pay for the people holding those positions, plus staff, equipment, space, travel, and other needed costs; (B) fellowships and grants for researchers to work and study alongside NIH, which may include stipends, travel, health insurance, and other expenses — donors and the Foundation choose recipients based on recommendations from NIH lab staff, subject to approval by the NIH Director and the Foundation's Executive Director; (C) collecting funds for pediatric drug research and studies; (D) extra programs to (i) let foreign scientists work with NIH in the U.S., or let NIH employees and other U.S. health officials work abroad; (ii) support studies, projects, and research, including stipends and travel for people working with nonprofit and for-profit organizations; (iii) run forums, meetings, conferences, courses, and training — including accredited courses that keep their accreditation for credit or degrees; (iv) support and encourage science teachers and students at every level, and help the public understand science; (v) write, edit, print, publish, and sell books and other materials; and (vi) do other things that support the purpose in subsection (b); and (E) the Cures Acceleration Network described in section 287a of this title. (2) The Foundation may charge reasonable fees for professional, administrative, and management services, as the Executive Director sets. (3) The Foundation is the only entity responsible for these activities. (d) The Board of Directors: (1) The Foundation has a Board made up of ex officio members and appointed members; every appointed member votes. The ex officio members are (i) the Chair and ranking minority member of the House Energy and Commerce Subcommittee on Health and the Environment, or their designees; (ii) the Chair and ranking minority member of the Senate Labor and Human Resources Committee, or their designees; (iii) the Director of NIH; and (iv) the Commissioner of Food and Drugs. Those ex officio members appoint the rest of the Board from a list the National Academy of Science provides, including representatives of the general biomedical field, of pediatric medicine and research experts, of the general biobehavioral field (which may include biomedical ethics experts), and of the general public (which may include people from affected industries). Within 30 days after June 10, 1993, the NIH Director had to convene the ex officio members to incorporate the Foundation, set its general policies and bylaws, and appoint the first Board members; once that happened, the congressional ex officio members' Board terms ended, while the NIH Director and Commissioner of Food and Drugs kept serving as ex officio members. Appointing the initial Board required agreement from at least three-fifths of the ex officio members. No NIH employee may serve on the Board. Through bylaw amendments, the Board may increase the number of appointed members beyond what subparagraph (C) set. (2) The ex officio members picked the Foundation's first Chair. After that Chair's term ended, the appointed Board members elect a Board member as Chair. (3) An appointed Board member serves a 5-year term, except that the first appointed members' terms were set by the ex officio members and the Chair. A vacancy is filled under the Foundation's bylaws and doesn't stop the rest of the Board from doing its work. If someone doesn't finish a full term, their replacement serves only the rest of that term. A member may keep serving after their term ends until a successor is named. (4) Board members are not paid for serving, but may be reimbursed for travel, living costs, and other necessary expenses under the bylaws. (5) A majority of the appointed Board members makes a quorum for Board business. (6) The Board's bylaws must set: (i) how officers, employees, agents, and contractors are chosen; (ii) rules — including ethics rules — for accepting, soliciting, and using donations and grants and disposing of Foundation property, making sure officers, employees, and agents (including Board members) avoid conflicts of interest, and requiring them and their spouses and relatives to disclose ownership or controlling interests in related entities; (iii) rules for running the Foundation's general operations; and (iv) rules for writing, editing, printing, publishing, and selling books and materials. The bylaws and anything done under them must not reflect badly on the Foundation's or NIH's ability to do its job fairly, and must not compromise, or appear to compromise, the integrity of any government agency, program, officer, or employee. (e) The first Board members act as incorporators and must do what's needed to incorporate the Foundation. (f) The Foundation counts as a nonprofit corporation under section 501(c) of title 26 and follows that section's rules. (g) The Foundation has an Executive Director, appointed by the Board and serving at the Board's pleasure, who runs day-to-day operations and does whatever else the Board assigns. The Board sets the Executive Director's pay. (h) To carry out its purpose, the Foundation may: operate under Board direction; adopt and use a corporate seal; hire officers, employees, and agents, define their jobs, and require bonds or other protection against their misconduct; hire, promote, pay, and fire staff; use another federal agency's information, services, staff, or facilities with that agency's consent; sue and be sued in court; modify contracts and agreements it holds an interest in; set up a process for picking candidates for the positions in subsection (c); contract with public and private groups to write, edit, print, and publish books and materials; work to get patents and licenses for things the Foundation or its employees develop; accept and manage gifts, bequests, and property given to it; enter other contracts, leases, and agreements the Executive Director thinks are appropriate for Foundation activities (this power appears twice in the statute's text); appoint advisory groups as needed; and exercise the other powers set out in this section, plus whatever incidental powers are needed to carry them out. (i) No one taking part in the program under this part may exercise administrative control over a federal employee. (j) General rules: (1) The Board members are responsible for the Foundation's integrity and must enforce standards of conduct, financial disclosure, conflict-of-interest rules, recusal and waiver rules, audits, and anything else the Board decides fits. (2) An officer, employee, or Board member may not personally or substantially take part in a Foundation decision that would directly or predictably affect their own financial interest, a relative's financial interest (as defined in section 13101(16) of title 5), or the interest of a business they work for, are negotiating a job with, or otherwise have a financial stake in. (3) The Foundation must have its finances audited every year and must make those audits, and all its other records, available to the Secretary and the Comptroller General. (4) Within 5 months after each fiscal year ends, the Foundation must publish a report on that year's activities, finances, and accomplishments, including how it used the money transferred under subsection (l). That report must list the source and description of every gift or grant of property, and the source and amount of every gift or grant of money, and note any restrictions on how gifts or grants may be used. The Foundation must make copies of the report available to the public — for a fee no higher than the cost of copying — and to the right congressional committees. The Board must hold a public meeting each year to summarize the Foundation's work and hand out written reports on its activities and scientific results. (5) Federal employees may serve on Foundation advisory committees and otherwise help the Foundation, as long as they don't direct or control what it does. (6) The Foundation may merge with, acquire, or use the resources of existing nonprofit corporations with similar missions, such as the Foundation for Advanced Education in the Sciences. (7) Before starting any collaborative project, the Board must adopt written standards on who owns any intellectual property that comes out of it. (8) Creating the Foundation does not cancel the activities carried out under the National Institutes of Health Amendments of 1990 or its later amendments. (9) The Foundation may only work alongside NIH's research programs — it cannot run independent labs or compete for federal research funds on its own. Gifts designated for pediatric drug research must be used only for the grants described in subsection (c)(1)(C), though other, undesignated gifts may also support that pediatric research. A grant recipient must agree to give the NIH Director and the FDA Commissioner a report and all data from the research when it's done, and the FDA Commissioner must act on that report — including negotiating labeling changes with drug application holders — following section 284m(c) of this title. This limitation does not apply to the program described in subsection (c)(1)(C). (10) The Foundation may transfer funds to NIH, and NIH may accept them; any transferred funds still have to follow federal rules for federally funded research. (k) If someone who isn't a federal employee gets financial help from the Foundation to work with NIH, the Foundation can't give that help — and the person can't start working at NIH — until they and the NIH Director (or the Director's designee) sign a memorandum of understanding spelling out the ethical and procedural rules that will apply to their NIH work. The NIH Director may also give the Foundation facilities, utilities, and support services if doing so helps NIH's research programs. (l) Each fiscal year, out of the money Congress gives NIH, the NIH Director must transfer between $1,250,000 and $5,000,000 to the Foundation.