II 115th CONGRESS 2d Session S. 3118 IN THE SENATE OF THE UNITED STATES June 21, 2018 Mr. Hatch (for himself and Mr. Grassley ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To specify and clarify mens rea requirements for certain Federal crimes and to establish the National Criminal Justice Commission.

1. Short title; table of contents (a) Short title This Act may be cited as the Mens Rea Reform Act of 2018 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—State of mind Sec. 101. State of mind element for criminal offenses. Sec. 102. Inventory of Federal criminal offenses. TITLE II—National Criminal Justice Commission Act Sec. 201. Findings. Sec. 202. Establishment of commission. Sec. 203. Purpose of the commission. Sec. 204. Review, recommendations, and report. Sec. 205. Membership. Sec. 206. Administration. Sec. 207. Sunset. I State of mind 101. State of mind element for criminal offenses (a) In general Chapter 1 of title 18, United States Code, is amended by adding at the end the following: 28. State of mind when not otherwise specifically provided (a) Definitions In this section— (1) the term covered offense — (A) means an offense— (i) specified in— (I) this title or any other Act of Congress; (II) any regulation; or (III) any law (including regulations) of any State or foreign government incorporated by reference into this title or any other Act of Congress; and (ii) that is punishable by imprisonment, a maximum criminal fine of at least $2,500, or both; and (B) does not include— (i) any offense set forth in chapter 47 or chapter 47A of title 10; or (ii) any offense incorporated by section 13(a) of this title; (2) the term existing covered offense without a state of mind requirement means a covered offense for which— (A) the provision or provisions specifying the elements of the offense were enacted, promulgated, or finalized on or before the date of enactment of this section; and (B) there is not a state of mind requirement specified for 1 or more elements of the covered offense, which shall be determined in accordance with subsection (d)— (i) in the text of the covered offense; or (ii) under the precedents of the Supreme Court of the United States; (3) the term existing covered regulatory offense without a state of mind requirement means an existing covered offense without a state of mind requirement for which the provision or provisions specifying the elements of the offense are in regulations promulgated by an agency; (4) the term future covered offense means a covered offense for which the provision or provisions specifying the elements of the offense are enacted, promulgated, or finalized after the date of enactment of this section; (5) the term state of mind means willfully, intentionally, maliciously, knowingly, recklessly, wantonly, negligently, or with reason to believe, or any other word or phrase that is synonymous with or substantially similar to any such term; and (6) the term willfully , as related to an element of an offense, means— (A) that the person acted with knowledge that the person's conduct was unlawful; and (B) if the element involves the nature, attendant circumstances, object, or result of the conduct of a person, that— (i) the person had knowledge of the nature, attendant circumstances, object, or result of his or her conduct; and (ii) it was the conscious object of the person to engage in conduct— (I) of that nature; (II) with that attendant circumstance; (III) with that object; or (IV) to cause such a result. (b) Future covered offenses A future covered offense shall be construed to require the Government to prove beyond a reasonable doubt that the defendant acted— (1) with the state of mind specified in the text of the future covered offense for each element of the offense for which the text specifies a state of mind; and (2) except as provided in subsection (d), willfully, with respect to any element of the offense for which the text of the future covered offense does not specify a state of mind. (c) Existing covered offenses without a state of mind requirement (1) Default requirement for existing statutory offenses without a state of mind requirement (A) In general On and after the date specified in subparagraph (B), an existing covered offense without a state of mind requirement for which the provision or provisions specifying the elements of the existing covered offense are in an Act of Congress shall be construed to require the Government to prove beyond a reasonable doubt that the defendant acted— (i) with the state of mind specified in the text of the existing covered offense without a state of mind requirement, including any amendment made after the date of enactment of this section, for each element for which the text specifies a state of mind; and (ii) except as provided in subsection (d), willfully, with respect to any element for which the text of the existing covered offense without a state of mind requirement does not specify a state of mind. (B) Deadline The date specified in this subparagraph is the earlier of— (i) the date that is 2 years after the date on which the National Criminal Justice Commission submits the report under section 101(b) of the Mens Rea Reform Act of 2018 ; or (ii) the date that is 5 years after the date of enactment of the Mens Rea Reform Act of 2018 . (2) Existing covered regulatory offenses without a state of mind requirement (A) In general Not later than the date specified in subparagraph (B), each agency that has in effect an existing covered regulatory offense without a state of mind requirement shall promulgate regulations, after providing notice and an opportunity for comment, specifying the state of mind required for each element of the existing covered regulatory offense for which a state of mind is not specified. (B) Deadline The date specified in this subparagraph is the earlier of— (i) the date that is 3 years after the date on which the National Criminal Justice Commission submits the report under section 101(b) of the Mens Rea Reform Act of 2018 ; or (ii) the date that is 6 years after the date of enactment of the Mens Rea Reform Act of 2018 . (C) No strict liability offenses The regulations promulgated by an agency under subparagraph (A) may not specify that an element of an existing covered regulatory offense does not require any state of mind be proven. (D) Sunset Except as provided in subsection (d), after the date specified in subparagraph (B), the criminal penalty provisions of an existing covered regulatory offense for which the regulations establishing the elements of the existing covered regulatory offense do not specify a state of mind for 1 or more elements shall cease to have force or effect. (E) Rule of construction Nothing in this paragraph shall be construed to grant an agency authority with respect to establishing the mens rea requirements for a covered regulatory offense that is in addition to, or in lieu of, such authority provided under the statute authorizing the covered regulatory offense. (d) Determination that elements lack required state of mind (1) Failure To distinguish among elements Except as provided in paragraph (2), if the text of a covered offense specifies the state of mind required for commission of the covered offense without specifying the elements of the covered offense to which the state of mind applies, the state of mind specified shall apply to all elements of the covered offense, unless a contrary legislative purpose plainly appears in the text of the statute. (2) Exceptions (A) In general Paragraph (1) of this subsection, subsection (b)(2), and paragraphs (1)(A)(ii) and (2)(D) of subsection (c) shall not apply with respect to— (i) any element for which the text of the covered offense makes clear that Congress affirmatively intended not to require the Government to prove any state of mind with respect to such element; (ii) any element of a covered offense, to the extent that the element establishes— (I) subject matter jurisdiction over the covered offense; or (II) venue with respect to trial of the covered offense; or (iii) any element of a covered offense, to the extent that applying paragraph (1) of this subsection, subsection (b)(2), or paragraph (1)(A)(ii) or (2)(D) of subsection (c) to such element would lessen the degree of mental culpability that the Government is required to prove with respect to that element under— (I) precedent of the Supreme Court of the United States; or (II) any other provision of this title, any other Act of Congress, or any regulation. (B) Mere absence insufficient For purposes of subparagraph (A)(i), the mere absence of a specified state of mind for an element of a covered offense in the text of the covered offense shall not be construed to mean that Congress affirmatively intended not to require the Government to prove any state of mind with respect to that element. (e) Subsequently enacted laws No law enacted after the date of enactment of this section shall be construed to repeal, modify the text or effect of, or supersede in whole or in part this section, unless such law specifically refers to this section and explicitly repeals, modifies the text or effect of, or supersedes in whole or in part this section. . (b) Commission report and legislation (1) Definitions In this section, the term existing covered offenses without a state of mind requirement has the meaning given that term in section 28 of title 18, United States Code, as added by subsection (a). (2) Submission Not later than the earlier of 2 years after the date on which the Attorney General submits the report required under section 102(b) or 3 years after the date of enactment of this Act, the National Criminal Justice Commission shall submit to Congress— (A) a report identifying— (i) the existing covered offenses without a state of mind requirement; and (ii) the existing covered offenses without a state of mind requirement for which the Commission recommends that the Government not be required to prove any state of mind with respect to 1 or more elements of the offense, based on consideration of the criteria described in paragraph (3); and (B) for each existing covered offense without a state of mind requirement identified under subparagraph (A)(ii) for which the provision or provisions specifying the elements of the existing covered offense without a state of mind requirement are in an Act of Congress, proposed legislative language to make clear the Government is not required to prove any state of mind with respect to 1 or more elements of the offense. (3) Criteria The criteria specified in this paragraph are— (A) whether the covered offense makes criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten public health or safety; and (B) the potential penalty attached to a violation of the covered offense, with a severe penalty suggesting that the offense should not be a strict liability offense. (c) Expedited procedures (1) Definition In this subsection, the term joint resolution means a joint resolution consisting of the proposed legislative language submitted under subsection (b)(2)(B) and introduced or reintroduced under paragraph (2) of this subsection. (2) Introduction of proposed legislative language (A) In general The proposed legislative language submitted by the National Criminal Justice Commission under subsection (b)(2)(B)— (i) shall be introduced in the Senate (by request) by the Majority Leader or Minority Leader of the Senate or by a Member of the Senate designated by the Majority Leader or Minority Leader of the Senate not later than 30 days after the date on which the proposed legislation is submitted to Congress; and (ii) shall be introduced in the House of Representatives (by request) by the Speaker of the House of Representatives or the Minority Leader of the House of Representatives or by a Member of the House of Representatives designated by the Speaker of the House of Representatives or the Minority Leader of the House of Representatives not later than 30 days after the date on which the proposed legislation is submitted to Congress. (B) Reintroduction The proposed legislative language submitted by the National Criminal Justice Commission under subsection (b)(2)(B) shall be reintroduced as described in subparagraph (A) not later than 30 days after the first day of a Congress if— (i) the proposed legislative language was introduced during the previous Congress after the date that was 210 days before the date of the sine die adjournment of such previous Congress; and (ii) there was not a vote in either House of Congress on passage of the joint resolution introduced under subparagraph (A) during the previous Congress by which the joint resolution was not agreed to. (3) Expedited consideration in House of Representatives (A) Reporting and discharge Any committee of the House of Representatives to which a joint resolution is referred shall report it to the House of Representatives not later than 180 days after the date on which the joint resolution is introduced or reintroduced in the House of Representatives under paragraph (2). If a committee fails to report the joint resolution within that period, the committee shall be discharged from further consideration of the joint resolution and the joint resolution shall be referred to the appropriate calendar. (B) Proceeding to consideration (i) In general After each committee authorized to consider a joint resolution reports it to the House of Representatives or has been discharged from its consideration, it shall be in order, not later than 210 days after the date on which the joint resolution is introduced or reintroduced in the House of Representatives under paragraph (2), to move to proceed to consider the joint resolution in the House of Representatives. (ii) Procedure For a motion to proceed to consideration of a joint resolution— (I) all points of order against the motion are waived; (II) such a motion shall not be in order after the House of Representatives has disposed of a motion to proceed on the joint resolution; (III) the previous question shall be considered as ordered on the motion to its adoption without intervening motion; (IV) the motion shall not be debatable; and (V) a motion to reconsider the vote by which the motion is disposed of shall not be in order. (C) Consideration If the House of Representatives proceeds to consideration of a joint resolution— (i) the joint resolution shall be considered as read; (ii) all points of order against the joint resolution and against its consideration are waived; (iii) the previous question shall be considered as ordered on the joint resolution to its passage without intervening motion except 10 hours of debate equally divided and controlled by the proponent and an opponent; (iv) an amendment to the joint resolution shall not be in order; and (v) a motion to reconsider the vote on passage of the joint resolution shall not be in order. (4) Expedited consideration in Senate (A) Placement on calendar Upon introduction in the Senate, the joint resolution shall be placed immediately on the calendar. (B) Proceeding to consideration (i) In general Notwithstanding rule XXII of the Standing Rules of the Senate, it is in order, not later than 210 days after the date on which the joint resolution is introduced or reintroduced in the Senate under paragraph (2) (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of a joint resolution. (ii) Procedure For a motion to proceed to the consideration of a joint resolution— (I) all points of order against the motion are waived; (II) the motion is not debatable; (III) the motion is not subject to a motion to postpone; (IV) a motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order; and (V) if the motion is agreed to, the joint resolution shall remain the unfinished business until disposed of. (C) Floor consideration (i) In general If the Senate proceeds to consideration of a joint resolution— (I) all points of order against the joint resolution (and against consideration of the joint resolution) are waived; (II) consideration of the joint resolution, and all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between the majority and minority leaders or their designees; (III) a motion further to limit debate is in order and not debatable; (IV) an amendment to, a motion to postpone, or a motion to commit the joint resolution is not in order; and (V) a motion to proceed to the consideration of other business is not in order. (ii) Vote on passage The vote on passage shall occur immediately following the conclusion of the consideration of a joint resolution, and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate. (iii) Rulings of the chair on procedure Appeals from the decisions of the Chair relating to the application of this paragraph or the rules of the Senate, as the case may be, to the procedure relating to a joint resolution shall be decided without debate. (5) Rules relating to Senate and House of Representatives (A) Coordination with action by other house If, before the passage by one House of a joint resolution of that House, that House receives from the other House a joint resolution— (i) the joint resolution of the other House shall not be referred to a committee; and (ii) with respect to a joint resolution of the House receiving the resolution— (I) the procedure in that House shall be the same as if no joint resolution had been received from the other House; and (II) the vote on passage shall be on the joint resolution of the other House. (B) Treatment of joint resolution of other House If one House fails to introduce or consider a joint resolution under this subsection, the joint resolution of the other House shall be entitled to expedited floor procedures under this subsection. (C) Treatment of companion measures If, following passage of a joint resolution in the Senate, the Senate receives the companion measure from the House of Representatives, the companion measure shall not be debatable. (D) Consideration after passage If the President vetoes the joint resolution, consideration of a veto message in the Senate under this paragraph shall be not more than 10 hours equally divided between the majority and minority leaders or their designees. (6) Rules of House of Representatives and Senate This subsection is enacted by Congress— (A) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution, and to supersede other rules only to the extent that it is inconsistent with such rules; and (B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House. (d) Technical and conforming amendment The table of sections for chapter 1 of title 18, United States Code, is amended by adding at the end the following: 28. State of mind when not otherwise specifically provided. . 102. Inventory of Federal criminal offenses (a) Definitions In this section— (1) the term criminal regulatory offense means a Federal regulation that is enforceable by a criminal penalty; (2) the term criminal statutory offense means a criminal offense under a Federal statute; and (3) the term Executive agency — (A) has the meaning given the term in section 105 of title 5, United States Code; and (B) includes the United States Postal Service and the Postal Regulatory Commission. (b) Report on criminal statutory offenses Not later than 1 year after the date of enactment of this Act, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives and make publicly available a report, which shall include— (1) a list of all criminal statutory offenses, including a list of the elements for each criminal statutory offense; and (2) for each criminal statutory offense listed under paragraph (1) and organized by Federal district where applicable— (A) the potential criminal penalty for the criminal statutory offense; (B) the number of violations of the criminal statutory offense referred to the Department of Justice by an Executive agency for prosecution, including referrals from investigative agencies of the Department of Justice, in each of the years during the 15-year period preceding the date of enactment of this Act; (C) the number of prosecutions for the criminal statutory offense brought by the Department of Justice each year for the 15-year period preceding the date of enactment of this Act; (D) the number of prosecutions for the criminal statutory offense brought by the Department of Justice that have resulted in conviction for each year of the 15-year period preceding the date of enactment of this Act; (E) the number of convictions for the criminal statutory offense that have resulted in imprisonment for each year of the 15-year period preceding the date of enactment of this Act; (F) the average length of sentence of imprisonment imposed as a result of conviction for the criminal statutory offense during each year of the 15-year period preceding the date of enactment of this Act; (G) the mens rea requirement for the criminal statutory offense; and (H) the number of prosecutions for the criminal statutory offense in which the Department of Justice was not required to prove mens rea as a component of the offense. (c) Report on criminal regulatory offenses Not later than 1 year after the date of enactment of this Act, the head of each Executive agency shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives and make publicly available a report, which shall include— (1) a list of all criminal regulatory offenses enforceable by the agency; and (2) for each criminal regulatory offense listed under paragraph (1)— (A) the potential criminal penalty for a violation of the criminal regulatory offense; (B) the number of violations of the criminal regulatory offense referred to the Department of Justice for prosecution in each of the years during the 15-year period preceding the date of enactment of this Act; (C) the number of prosecutions for the criminal regulatory offense brought by the Department of Justice each year for the 15-year period preceding the date of enactment of this Act; (D) the number of prosecutions for the criminal regulatory offense brought by the Department of Justice that have resulted in conviction for each year of the 15-year period preceding the date of enactment of this Act; (E) the number of convictions for the criminal regulatory offense that have resulted in imprisonment for each year of the 15-year period preceding the date of enactment of this Act; (F) the average length of sentence of imprisonment imposed as a result of conviction for the criminal regulatory offense during each year of the 15-year period preceding the date of enactment of this Act; (G) the mens rea requirement for the criminal regulatory offense; and (H) the number of prosecutions for the criminal regulatory offense in which the Department of Justice was not required to prove mens rea as a component of the offense. (d) Index Not later than 2 years after the date of enactment of this Act— (1) the Attorney General shall establish a publically accessible index of each criminal statutory offense listed in the report required under subsection (b) and make the index available and freely accessible on the website of the Department of Justice; and (2) the head of each Executive agency shall establish a publically accessible index of each criminal regulatory offense listed in the report required under subsection (c) and make the index available and freely accessible on the website of the agency. (e) Rule of construction Nothing in this section shall be construed to require or authorize appropriations. II National Criminal Justice Commission Act 201. Findings Congress finds that— (1) it is in the interest of the Nation to establish a commission to undertake a comprehensive review of the criminal justice system; (2) there has not been a comprehensive study since the President’s Commission on Law Enforcement and Administration of Justice was established in 1965; (3) that commission, in a span of 18 months, produced a comprehensive report entitled The Challenge of Crime in a Free Society , which contained 200 specific recommendations on all aspects of the criminal justice system involving Federal, State, tribal, and local governments, civic organizations, religious institutions, business groups, and individual citizens; and (4) developments over the intervening 50 years require once again that Federal, State, tribal, and local governments, civic organizations, religious institutions, business groups, and individual citizens come together to review evidence and consider how to improve the criminal justice system. 202. Establishment of commission There is established a commission to be known as the National Criminal Justice Commission (referred to in this title as the Commission ). 203. Purpose of the commission The Commission shall— (1) undertake a comprehensive review of the criminal justice system; (2) make recommendations for Federal criminal justice reform to the President and Congress; and (3) disseminate findings and supplemental guidance to the Federal Government, as well as to State, local, and tribal governments. 204. Review, recommendations, and report (a) General review The Commission shall undertake a comprehensive review of all areas of the criminal justice system, including Federal, State, local, and tribal governments’ criminal justice costs, practices, and policies. (b) Recommendations (1) In general Not later than 18 months after the first meeting of the Commission, the Commission shall submit to the President and Congress recommendations for changes in Federal oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, reduce recidivism, improve cost-effectiveness, and ensure the interests of justice at every step of the criminal justice system. (2) Unanimous consent required A recommendation of the Commission may be adopted and submitted under paragraph (1) if the recommendation is approved by a unanimous vote of the Commissioners at a meeting where a quorum is present pursuant to section 205(d). (3) Requirement The recommendations submitted under this subsection shall be made available to the public. (c) Report (1) In general Not later than 18 months after the first meeting of the Commission, the Commission shall also disseminate to the Federal Government, as well as to State, local, and tribal governments, a report that details the findings and supplemental guidance of the Commission regarding the criminal justice system at all levels of government. (2) Majority vote required Commission findings and supplemental guidance may be adopted and included in the report required under paragraph (1) if the findings or guidance is approved by a majority vote of the Commissioners at a meeting where a quorum is present pursuant to section 205(d), except that any Commissioners dissenting from particular finding or supplemental guidance shall have the right to state the reason for their dissent in writing and such dissent shall be included in the report of the Commission. (3) Requirement The report submitted under this subsection shall be made available to the public. (d) Prior commissions The Commission shall take into consideration the work of prior relevant commissions in conducting its review. (e) State and local government In issuing its recommendations and report under this section, the Commission shall not infringe on the legitimate rights of the States to determine their own criminal laws or the enforcement of such laws. (f) Public hearings The Commission shall conduct public hearings in various locations around the United States. (g) Consultation with government and nongovernment representatives (1) In general The Commission shall— (A) closely consult with Federal, State, local, and tribal government and nongovernmental leaders, including State, local, and tribal law enforcement officials, legislators, public health officials, judges, court administrators, prosecutors, defense counsel, victims’ rights organizations, probation and parole officials, criminal justice planners, criminologists, civil rights and liberties organizations, formerly incarcerated individuals, professional organizations, and corrections officials; and (B) include in the final report required under subsection (c) summaries of the input and recommendations of these leaders. (2) United States Sentencing Commission To the extent the review and recommendations required by this section relate to sentencing policies and practices for the Federal criminal justice system, the Commission shall conduct such review and make such recommendations in consultation with the United States Sentencing Commission. (h) Sense of Congress, goal of unanimity It is the sense of the Congress that, given the national importance of the matters before the Commission, the Commission should work toward unanimously supported findings and supplemental guidance, and that unanimously supported findings and supplemental guidance should take precedence over those findings and supplemental guidance that are not unanimously supported. 205. Membership (a) In general The Commission shall be composed of 14 members, as follows: (1) One member shall be appointed by the President, who shall serve as co-chairperson of the Commission. (2) One member shall be appointed by the leader of the Senate, in consultation with the leader of the House of Representatives, that is a member of the opposite party of the President, who shall serve as co-chairperson of the Commission. (3) Two members shall be appointed by the senior member of the Senate leadership of the Democratic Party, in consultation with the Democratic leadership of the Committee on the Judiciary. (4) Two members shall be appointed by the senior member of the Senate leadership of the Republican Party, in consultation with the Republican leadership of the Committee on the Judiciary. (5) Two members shall be appointed by the senior member of the leadership of the House of Representatives of the Republican Party, in consultation with the Republican leadership of the Committee on the Judiciary. (6) Two members shall be appointed by the senior member of the leadership of the House of Representatives of the Democratic Party, in consultation with the Democratic leadership of the Committee on the Judiciary. (7) Two members, who shall be State and local representatives, shall be appointed by the President in agreement with leader of the Senate (majority or minority leader, as the case may be) of the Republican Party and the leader of the House of Representatives (majority or minority leader, as the case may be) of the Republican Party. (8) Two members, who shall be State and local representatives, shall be appointed by the President in agreement with leader of the Senate (majority or minority leader, as the case may be) of the Democratic Party and the leader of the House of Representatives (majority or minority leader, as the case may be) of the Democratic Party. (b) Membership (1) Qualifications The individuals appointed from private life as members of the Commission shall be individuals with distinguished reputations for integrity and nonpartisanship who are nationally recognized for expertise, knowledge, or experience in such relevant areas as— (A) law enforcement; (B) criminal justice; (C) national security; (D) prison and jail administration; (E) prisoner reentry; (F) public health, including physical and sexual victimization, drug addiction and mental health; (G) victims’ rights; (H) civil liberties; (I) court administration; (J) social services; and (K) State, local, and tribal government. (2) Disqualification An individual shall not be appointed as a member of the Commission if such individual possesses any personal financial interest in the discharge of any of the duties of the Commission. (3) Terms Members shall be appointed for the life of the Commission. (c) Appointment; first meeting (1) Appointment Members of the Commission shall be appointed not later than 45 days after the date of the enactment of this Act. (2) First meeting The Commission shall hold its first meeting on the date that is 60 days after the date of enactment of this Act, or not later than 30 days after the date on which funds are made available for the Commission, whichever is later. (3) Ethics At the first meeting of the Commission, the Commission shall draft appropriate ethics guidelines for commissioners and staff, including guidelines relating to conflict of interest and financial disclosure. The Commission shall consult with the Senate and House Committees on the Judiciary as a part of drafting the guidelines and furnish the Committees with a copy of the completed guidelines. (d) Meetings; quorum; vacancies (1) Meetings The Commission shall meet at the call of the co-chairpersons or a majority of its members. (2) Quorum Eight members of the Commission shall constitute a quorum for purposes of conducting business, except that 2 members of the Commission shall constitute a quorum for purposes of receiving testimony. (3) Vacancies Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made. If vacancies in the Commission occur on any day after 45 days after the date of the enactment of this Act, a quorum shall consist of a majority of the members of the Commission as of such day, so long as not less than 1 Commission member chosen by a member of each party, Republican and Democratic, is present. (e) Actions of Commission (1) In general The Commission— (A) shall, subject to the requirements of section 204, act by resolution agreed to by a majority of the members of the Commission voting and present; and (B) may establish panels composed of less than the full membership of the Commission for purposes of carrying out the duties of the Commission under this title— (i) which shall be subject to the review and control of the Commission; and (ii) any findings and determinations made by such a panel shall not be considered the findings and determinations of the Commission unless approved by the Commission. (2) Delegation Any member, agent, or staff of the Commission may, if authorized by the co-chairpersons of the Commission, take any action which the Commission is authorized to take pursuant to this Act. 206. Administration (a) Staff (1) Executive director The Commission shall have a staff headed by an Executive Director. The Executive Director shall be paid at a rate established for the Certified Plan pay level for the Senior Executive Service under section 5382 of title 5, United States Code. (2) Appointment and compensation The co-chairpersons of the Commission shall designate the Executive Director and, in accordance with rules agreed upon by the Commission, may appoint and fix the compensation of such other personnel as may be necessary to enable the Commission to carry out its functions, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that no rate of pay fixed under this paragraph may exceed the equivalent of that payable for a position at level V of the Executive Schedule under section 5316 of title 5, United States Code. (3) Personnel as Federal employees (A) In general The executive director and any personnel of the Commission who are employees shall be employees under section 2105 of title 5, United States Code, for purposes of chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title. (B) Members of commission Subparagraph (A) shall not be construed to apply to members of the Commission. (4) The compensation of commissioners Each member of the Commission may be compensated at not to exceed the daily equivalent of the annual rate of basic pay in effect for a position at level V of the Executive Schedule under section 5315 of title 5, United States Code, for each day during which that member is engaged in the actual performance of the duties of the Commission. All members of the Commission who are officers or employees of the United States, a State, or a local government shall serve without compensation in addition to that received for their services as officers or employees. (5) Travel expenses While away from their homes or regular places of business in the performance of services for the Commission, members of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703(b) of title 5, United States Code. (b) Experts and consultants With the approval of the Commission, the Executive Director may procure temporary and intermittent services under section 3109(b) of title 5, United States Code. (c) Detail of Government employees Upon the request of the Commission, the head of any Federal agency may detail, without reimbursement, any of the personnel of such agency to the Commission to assist in carrying out the duties of the Commission. Any such detail shall not interrupt or otherwise affect the civil service status or privileges of the Federal employee. (d) Other resources The Commission shall have reasonable access to materials, resources, statistical data, and other information such Commission determines to be necessary to carry out its duties from the Library of Congress, the Department of Justice, the Office of National Drug Control Policy, the Department of State, and other agencies of the executive and legislative branches of the Federal Government. The co-chairpersons of the Commission shall make requests for such access in writing when necessary. (e) Volunteer services Notwithstanding the provisions of section 1342 of title 31, United States Code, the Commission is authorized to accept and utilize the services of volunteers serving without compensation. The Commission may reimburse such volunteers for local travel and office supplies, and for other travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code. A person providing volunteer services to the Commission shall be considered an employee of the Federal Government in performance of those services for the purposes of chapter 81 of title 5, United States Code, relating to compensation for work-related injuries, chapter 171 of title 28, United States Code, relating to tort claims, and chapter 11 of title 18, United States Code, relating to conflicts of interest. (f) Obtaining official data The Commission may secure directly from any agency of the United States information necessary to enable it to carry out this Act. Upon the request of the co-chairpersons of the Commission, the head of that department or agency shall furnish that information to the Commission. The Commission shall not have access to sensitive information regarding ongoing investigations. (g) Mails The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States. (h) Administrative reporting The Commission shall issue biannual status reports to Congress regarding the use of resources, salaries, and all expenditures of appropriated funds. (i) Contracts The Commission is authorized to enter into contracts with Federal and State agencies, private firms, institutions, and individuals for the conduct of activities necessary to the discharge of its duties and responsibilities. A contract, lease, or other legal agreement entered into by the Commission may not extend beyond the date of the termination of the Commission. (j) Gifts Subject to existing law, the Commission may accept, use, and dispose of gifts or donations of services or property. (k) Administrative assistance The Administrator of General Services shall provide to the Commission, on a reimbursable basis, the administrative support services necessary for the Commission to carry out its responsibilities under this Act. These administrative services may include human resource management, budget, leasing, accounting, and payroll services. (l) Nonapplicability of FACA and public access to meetings and minutes (1) In general The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Commission. (2) Meetings and minutes (A) Meetings (i) Administration All meetings of the Commission shall be open to the public, except that a meeting or any portion of it may be closed to the public if it concerns matters or information described in section 552b(c) of title 5, United States Code. Interested persons shall be permitted to appear at open meetings and present oral or written statements on the subject matter of the meeting. The Commission may administer oaths or affirmations to any person appearing before it. (ii) Notice All open meetings of the Commission shall be preceded by timely public notice in the Federal Register of the time, place, and subject of the meeting. (B) Minutes and public availability Minutes of each open meeting shall be kept and shall contain a record of the people present, a description of the discussion that occurred, and copies of all statements filed. The minutes and records of all open meetings and other documents that were made available to or prepared for the Commission shall be available for public inspection and copying at a single location in the offices of the Commission. (m) Archiving Not later than the date of termination of the Commission, all records and papers of the Commission shall be delivered to the Archivist of the United States for deposit in the National Archives. 207. Sunset The Commission shall terminate 60 days after the Commission submits the report required under section 204 to Congress.