S 2202 IS
To provide for the establishment of a private, nonprofit entity to assist the Government in providing disaster assistance, and for other purposes.
IN THE SENATE OF THE UNITED STATES
March 15, 2012
March 15, 2012
Mr. INOUYE introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
To provide for the establishment of a private, nonprofit entity to assist the Government in providing disaster assistance, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE DEFINITIONS.
(a) Short Title- This Act may be cited as the ‘Preparedness and Resilience Foundation Act’.
(b) Definitions- In this Act--
(1) the term ‘Foundation’ means the Preparedness and Resilience Foundation established under this Act;
(2) the terms ‘Board’ and ‘Chair’ mean the board of directors of the Foundation and the Chair of the board of directors, respectively;
(3) the terms ‘Department’ and ‘Secretary’ mean the Department of Homeland Security and the Secretary of Homeland Security, respectively;
(4) the term ‘Fund’ means the Endowment Fund established under this Act;
(5) the terms ‘FEMA’ and ‘Administrator’ mean the Federal Emergency Management Agency and the Administrator thereof, respectively; and
(6) the term ‘Director’ means the executive director of the Foundation appointed under this Act.
SEC. 2. ESTABLISHMENT AND DUTIES OF THE FOUNDATION.
(a) In General- There is established in accordance with this section a nonprofit private corporation to be known as the ‘Preparedness and Resilience Foundation’. The Foundation shall not be an agency or instrumentality of the Federal Government, and officers, employees, and members of the board of directors of the Foundation shall not be officers or employees of the Federal Government.
(b) Purpose of the Foundation- The purpose of the Foundation shall be to support and carry out activities that promote the resilience of individuals, communities, structures, and systems against natural disasters and terrorist attacks and other human caused disasters, and that build and sustain the capabilities of the public, private, and civic sectors to work together to prepare for, prevent, protect against, respond to, recover from, and mitigate all such hazards.
(c) Endowment Fund-
(1) IN GENERAL- In carrying out subsection (b), the Foundation shall establish an Endowment Fund for providing endowments for positions that are associated with FEMA and dedicated to the purpose described in subsection (b). The Fund shall consist of such donations as may be provided by non-Federal entities and such non-Federal assets of the Foundation (including earnings of the Foundation and the fund) as the Foundation may elect to transfer to the Fund.
(2) AUTHORIZED EXPENDITURES OF THE FUND- The provision of funding and assistance under paragraph (1) shall be the exclusive function of the Fund. Such funds may be expended only for the compensation of individuals holding positions endowed by the Fund, for staff, equipment, quarters, travel, and other expenditures that are appropriate in supporting the positions endowed by the Fund, and for recruiting individuals to hold the positions endowed by the Fund.
(d) Certain Activities of the Foundation- In carrying out subsection (b), the Foundation may provide for, with respect to the purpose described in subsection (b)--
(1) programs of fellowships among State, local, and tribal officials to work and study in association with each other and FEMA or the Department;
(2) programs of international arrangements to provide opportunities for officials of other countries engaged in preparedness or resilience programs and activities to serve in voluntary or reciprocal capacities in the United States in association with FEMA or the Department, or opportunities for employees of FEMA (or other Federal officials in the United States) to serve in such capacities in other countries, or both;
(3) studies, projects, and research (which may include applied research on the effectiveness of prevention activities, demonstration projects, and programs and projects involving international, Federal, State, local, and tribal governments, private sector, or non-governmental organizations);
(4) forums for government officials and appropriate private entities to exchange information, participation in which may include institutions of higher education and appropriate international or non-governmental organizations;
(5) meetings, conferences, courses, and training workshops;
(6) programs to improve the collection and analysis of data on preparedness and resilience programs, practices, activities, and events;
(7) programs for writing, editing, printing, and publishing of books and other materials; and
(8) other activities to carry out the purpose described in subsection (b).
(e) General Structure of Foundation; Nonprofit Status-
(1) BOARD OF DIRECTORS- The Foundation shall have a board of directors, which shall be established and conducted in accordance with subsection (f). The Board shall establish the general policies of the Foundation for carrying out subsection (b), including the establishment of the bylaws of the Foundation.
(2) EXECUTIVE DIRECTOR- The Foundation shall have an executive director, who shall be appointed by the Board, who shall serve at the pleasure of the Board, and for whom the Board shall establish the rate of compensation. Subject to compliance with the policies and bylaws established by the Board pursuant to paragraph (1), the Director shall be responsible for the daily operations of the Foundation.
(3) NONPROFIT STATUS- In carrying out subsection (b), the Board shall establish such policies and bylaws under paragraph (1), and the Director shall carry out such activities under paragraph (2), as may be necessary to ensure that the Foundation maintains status as an organization that--
(A) is described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)); and
(B) is, under section 501(a) of such Code, exempt from taxation.
(f) Board of Directors-
(1) CERTAIN BYLAWS- In establishing bylaws under subsection (e)(1), the Board shall ensure that the bylaws of the Foundation--
(A) include policies for--
(i) the selection of the officers, employees, agents, and contractors of the Foundation;
(ii) the acceptance and disposition of donations to the Foundation and for, the disposition of the assets of the Foundation, including ethical standards;
(iii) the conduct of the general operations of the Foundation; and
(iv) writing, editing, printing, and publishing of books and other materials, and the acquisition of patents and licenses for devices and procedures developed by the Foundation; and
(B) do not, including with respect to the activities carried out under the bylaws--
(i) reflect unfavorably upon the ability of the Foundation or FEMA to carry out its responsibilities or official duties in a fair and objective manner; or
(ii) compromise, or appear to compromise, the integrity of any governmental program or any officer or employee involved in such a program.
(2) COMPOSITION- The Board--
(A) subject to subparagraph (B), shall be composed of 7 individuals, appointed in accordance with paragraph (4), who--
(i) collectively possess education or experience appropriate for representing the general field of emergency management, preparedness, or resilience, and the general public; and
(ii) each shall be a voting member of the Board; and
(B) may, through amendments to the bylaws of the Foundation, provide that the number of members of the Board shall be a greater number than the number specified in subparagraph (A).
(3) CHAIR- The Board shall, from among the members of the Board, designate an individual to serve as the chair of the Board.
(4) APPOINTMENTS, VACANCIES, AND TERMS- Subject to subsection (j), the following shall apply to the Board:
(A) VACANCIES- Any vacancy in the membership of the Board shall be filled by appointment by the Board, after consideration of suggestions made by the Chair and the Director regarding the appointment. Any such vacancy shall be filled not later than the expiration of the 180-day period beginning on the date on which the vacancy occurs.
(B) TERM OF OFFICE- The term of office of each member of the Board appointed under subparagraph (A) shall be 5 years. A member of the Board may continue to serve after the expiration of the term of the member until the expiration of the 180-day period beginning on the date on which the term of the member expires.
(C) VACANCY DOES NOT AFFECT AUTHORITY- A vacancy in the membership of the Board shall not affect the power of the Board to carry out the duties of the Board. If a member of the Board does not serve the full term applicable under subparagraph (B), the individual appointed to fill the resulting vacancy shall be appointed for the remainder of the subject term.
(5) COMPENSATION- Members of the Board may not receive compensation for service on the Board. The members may be reimbursed for travel, subsistence, and other necessary expenses incurred in carrying out the duties of the Board.
(g) Certain Responsibilities of the Executive Director- The Director shall--
(1) hire, promote, compensate, and discharge officers and employees of the Foundation, and define the duties of the officers and employees;
(2) accept and administer donations to the Foundation, and administer the assets of the Foundation;
(3) establish a process for the selection of candidates for holding endowed positions under subsection (c);
(4) enter into such financial agreements as are appropriate in carrying out the activities of the Foundation;
(5) take such action as may be necessary to acquire patents and licenses for devices and procedures developed by the Foundation and the employees of the Foundation;
(6) adopt, alter, and use a corporate seal, which shall be judicially noticed;
(7) commence and respond to judicial proceedings in the name of the Foundation; and
(8) exercise such other functions as are appropriate, in the determination of the Director.
(h) General Provisions-
(1) AUTHORITY FOR ACCEPTING FUNDS- The Administrator of FEMA may accept and utilize, on behalf of the Federal Government, any gift, donation, bequest, or devise of real or personal property from the Foundation for the purpose of aiding or facilitating the work of FEMA. Funds may be accepted and utilized by the Administrator without regard to whether the funds are designated as general-purpose funds or special-purpose funds.
(2) AUTHORITY FOR ACCEPTANCE OF VOLUNTARY SERVICES-
(A) IN GENERAL- The Administrator of FEMA may accept, on behalf of the Federal Government, any voluntary services provided by the Foundation for the purpose of aiding or facilitating the work of the Federal Government. In the case of an individual, such Administrator may accept the services provided under this subparagraph by the individual until such time as the private funding for such individual ends.
(B) CLARIFICATION- The limitation established in subparagraph (A) regarding the period of time in which services may be accepted applies to each individual who is not an employee of the Federal Government and who serves in association with FEMA pursuant to financial support from the Foundation.
(3) ADMINISTRATIVE CONTROL- No officer, employee, or member of the Board may exercise any administrative or managerial control over any Federal employee.
(4) APPLICABILITY OF CERTAIN STANDARDS TO NON-FEDERAL EMPLOYEES- In the case of any individual who is not an employee of the Federal Government and who serves in association with FEMA pursuant to financial support from the Foundation, the Foundation shall negotiate a memorandum of understanding with the individual and the Administrator of FEMA specifying that the individual--
(A) shall be subject to the ethical and procedural standards regulating Federal employment, scientific investigation, and research findings (including publications and patents) that are required of individuals employed by FEMA, including standards under this Act, the Ethics in Government Act, and the Technology Transfer Act; and
(B) shall be subject to such ethical and procedural standards under chapter 11 of title 18, United States Code (relating to conflicts of interest), as the Administrator of FEMA determines is appropriate, except that such memorandum may not provide that the individual shall be subject to the standards of section 209 of such chapter (18 U.S.C. 209).
(5) FINANCIAL CONFLICTS OF INTEREST- Any individual who is an officer, employee, or member of the Board may not directly or indirectly participate in the consideration or determination by the Foundation of any question affecting--
(A) any direct or indirect financial interest of the individual; or
(B) any direct or indirect financial interest of any business organization or other entity of which the individual is an officer or employee or in which the individual has a direct or indirect financial interest.
(6) AUDITS; AVAILABILITY OF RECORDS- The Foundation shall--
(A) provide for biennial audits of the financial 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.
(A) ANNUAL REPORTS-
(i) IN GENERAL- Not later than February 1 of each fiscal year, the Foundation shall publish a report describing the activities of the Foundation during the preceding fiscal year.
(ii) CONTENT- Each such report required under this paragraph shall include for the fiscal year involved a comprehensive statement of the operations, activities, financial condition, and accomplishments of the Foundation, including--
(I) an accounting of the use of amounts provided for under subsection (i); and
(II) an explanation of how such funding has enhanced, and not supplanted, FEMA core missions.
(B) SPECIFIC DETAILS- With respect to the financial condition of the Foundation, each report under subparagraph (A) shall include the source, and a description of, all gifts to the Foundation of real or personal property, and the source and amount of all gifts to the Foundation of money. Each such report shall include a specification of any restrictions on the purposes for which gifts to the Foundation may be used.
(C) AVAILABILITY OF REPORTS- The Foundation shall make copies of each report submitted under subparagraph (A) available--
(i) for public inspection, and shall upon request provide a copy of the report to any individual for a charge not to exceed the cost of providing the copy; and
(ii) to the appropriate committees of Congress.
(8) LIAISON FROM THE FEDERAL EMERGENCY MANAGEMENT AGENCY- The Administrator of FEMA shall serve as the liaison representative of FEMA to the Board and the Foundation.
(i) Federal Funding-
(1) AUTHORITY FOR ANNUAL GRANTS-
(A) IN GENERAL- The Administrator of FEMA shall--
(i) for fiscal year 2013, make a grant to an entity described in subsection (j)(9) (relating to the establishment of a committee to establish the Foundation);
(ii) for fiscal year 2014, make a grant to the committee established under subsection (j), or if the Foundation has been established, to the Foundation; and
(iii) for fiscal year 2015, and each fiscal year thereafter, make a grant to the Foundation.
(B) LIMITATIONS- A grant under subparagraph (A) may be expended--
(i) in the case of an entity receiving the grant under subparagraph (A)(i), only for the purpose of carrying out the duties established in subsection (j)(9) for the entity;
(ii) in the case of the committee established under subsection (j)(9), only for the purpose of carrying out the duties established in subsection (j) for the committee; and
(iii) in the case of the Foundation, only for the purpose of the administrative expenses of the Foundation.
(C) LIMIT ON GRANT USES- A grant under subparagraph (A) may not be expended to provide amounts for the Fund.
(D) UNOBLIGATED AMOUNTS- For the purposes described in subparagraph (B)--
(i) any portion of the grant made under subparagraph (A)(i) for fiscal year 2013 that remains unobligated after the entity receiving the grant completes the duties established in subsection (j)(9) for the entity shall be available to the committee established under subsection (j)(9); and
(ii) any portion of a grant under subparagraph (A) made for fiscal year 2014 that remains unobligated after such committee completes the duties established in subsection (j)(9) for the committee shall be available to the Foundation.
(2) FUNDING FOR GRANTS- For the purpose of grants under paragraph (1)--
(A) there is authorized to be appropriated $1,500,000 for each fiscal year; and
(B) the Administrator of FEMA may, for each fiscal year, make available not less than $500,000, and not more than $1,500,000 from the amounts appropriated for the fiscal year for the programs of FEMA.
(3) CERTAIN RESTRICTION- If the Foundation receives Federal funds for the purpose of serving as a fiscal intermediary between Federal agencies, the Foundation may not receive such funds for the indirect costs of carrying out such purpose in an amount exceeding 10 percent of the direct costs of carrying out such purpose. This paragraph may not be construed as authorizing the expenditure of any grant under paragraph (1) for such purpose.
(4) SUPPORT SERVICES- The Administrator of FEMA may provide facilities, utilities, and support services to the Foundation if it is determined by the Administrator to be advantageous to the programs of FEMA or the Department.
(j) Committee for Establishment of Foundation-
(1) IN GENERAL- There is established in accordance with this subsection a committee to carry out the functions described in paragraph (2) (referred to in this subsection as the ‘Committee’).
(2) FUNCTIONS- The functions referred to in paragraph (1) for the Committee are as follows:
(A) To carry out such activities as may be necessary to incorporate the Foundation under the laws of the State involved, including serving as incorporators for the Foundation. Such activities shall include ensuring that the articles of incorporation for the Foundation require that the Foundation be established and operated in accordance with the applicable provisions of this Act.
(B) To ensure that the Foundation qualifies for and maintains the nonprofit status described in subsection (e)(3).
(C) To establish the general policies and initial bylaws of the Foundation, which bylaws shall include the bylaws described in subsections (e)(3) and (f)(1).
(D) To provide for the initial operation of the Foundation, including providing for quarters, equipment, and staff.
(E) To appoint the initial members of the Board in accordance with the requirements established in subsection (f)(2)(A) for the composition of the Board, and in accordance with such other qualifications as the Committee may determine to be appropriate regarding such composition. Of the Board members so appointed--
(i) 2 shall be appointed to serve for a term of 3 years;
(ii) 2 shall be appointed to serve for a term of 4 years; and
(iii) 3 shall be appointed to serve for a term of 5 years.
(3) COMPLETION OF FUNCTIONS OF THE COMMITTEE; INITIAL MEETING OF BOARD-
(A) IN GENERAL- The Committee shall complete the functions required in paragraph (1) not later than September 30, 2014.
(B) TERMINATION- The Committee shall terminate upon the expiration of the 30-day period beginning on the date on which the Secretary determines that the functions of the Committee have been completed.
(C) INITIAL MEETING- The initial meeting of the Board shall be held not later than November 1, 2014.
(4) COMPOSITION- The Committee shall be composed of 5 members, each of whom shall be a voting member. Of the members of the Committee--
(A) not fewer than 2 shall have broad, general experience in emergency management, preparedness, or resilience; and
(B) not fewer than 2 shall have broad, general experience in nonprofit private organizations.
(5) CHAIRPERSON- The Committee shall, from among the members of the Committee, designate an individual to serve as the chairperson of the Committee.
(6) TERMS; VACANCIES- The term of members of the Committee shall be for the duration of the Committee. A vacancy in the membership of the Committee shall not affect the power of the Committee to carry out the duties of the Committee. If a member of the Committee does not serve the full term, the individual appointed to fill the resulting vacancy shall be appointed for the remainder of the term subject.
(7) COMPENSATION- Members of the Committee may not receive compensation for service on the Committee. Members of the Committee may be reimbursed for travel, subsistence, and other necessary expenses incurred in carrying out the duties of the Committee.
(8) COMMITTEE SUPPORT- The Administrator of FEMA may, from amounts available to the Administrator for the general administration of FEMA, provide staff and financial support to assist the Committee with carrying out the functions described in paragraph (2). In providing such staff and support, the Administrator may both detail employees and contract for assistance.
(9) GRANT FOR ESTABLISHMENT OF THE COMMITTEE-
(A) IN GENERAL- With respect to a grant under subsection (i)(1)(A)(i) for fiscal year 2013, an entity described in this paragraph is a private nonprofit entity with significant experience in domestic and international issues of emergency management, preparedness, or resilience.
(B) CONDITIONS- The grant referred to in subparagraph (A) may be made to an entity only if the entity agrees that--
(i) the entity will establish a committee that is composed in accordance with paragraph (4); and
(ii) the entity will not select an individual for membership on the Committee unless the individual agrees that the Committee will operate in accordance with each of the provisions of this subsection that relate to the operation of the Committee.
(C) GRANT TERMS- The Administrator of FEMA may make a grant referred to in subparagraph (A) only if the applicant for the grant makes an agreement that the grant will not be expended for any purpose other than carrying out subparagraph (B). Such a grant may be made only if an application for the grant is submitted to the Administrator containing such agreement, and the application is in such form, is made in such manner, and contains such other agreements and such assurances and information as the Administrator determines to be necessary to carry out this paragraph.
SEC. 3. PERFORMANCE EVALUATIONS.
(a) In General- To ensure that the Foundation and its grantees are meeting their objectives, the Board shall establish and implement performance evaluations--
(1) that monitor and evaluate the performance and impact of the Foundation program activities in a specific, measurable, achievable, relevant, and timely fashion; and
(2) that assess the financial accountability of appropriated and donated funds.
(b) Impact or Outcome Evaluations- The Board shall establish mechanisms to evaluate and assess the effectiveness of individual programs supported by the Foundation. Impact or outcome evaluations such as balanced scorecard, innovations in risk reduction, and return on investment shall be employed and reported through the annual report of the Foundation under section 2(h)(7)(A).
(c) Use of Evaluation Results- The Foundation shall--
(1) identify through its annual report under section 2(h)(7)(A) its greatest needs and the ways that the Foundation or others, will use evaluation results; and
(2) use such information to set priorities for the Foundation.