,,ii #aaeth ,,congress #ast ,session ,s4 #afdi ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,july #bg1 #bjag ,mr4 ,lee 7for himself1 ,mr4 ,cruz1 and ,mr4 ,sasse7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to help ,states combat abuse of occupational licensing laws by economic incumbents1 to promote competition1 to encourage innovation1 to protect consumers1 and to facilitate the restoration of antitrust immunity to ,state occupational boards1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,restoring ,board ,immunity ,act of #bjag or the ,,rbi ,act4 #b4 ,statement of findings and purpose ,congress finds the following3 7#a7 ,the prevalence of occupational licensing has increased dramatically in recent decades1 in part because private interests have sought licensing in order to limit competition4 7#b7 ,occupational licensing often limits opportunities for workers1 frustrates entrepreneurs seeking to introduce new business models1 and raises prices paid by consumers4 7#c7 ,licensing should be imposed only to combat real1 substantial threats to public health1 safety1 or welfare and only where other less restrictive regulatory alternatives are insufficient to protect consumers and serve the public interest4 7#d7 ,regulators should consider a range of less restrictive alternatives before enacting an occupational licensing regime1 which may include inspections1 bonding or insurance requirements1 registration1 and voluntary certification4 7#e7 ,voluntary certification provides a particularly significant alternative to licensure1 as it allows market participants to signal to consumers the attainment of personal qualifications without limiting entry into the marketplace4 7#f7 ,the failure of ,state governments to adopt less restrictive alternatives to licensing1 and less burdensome requirements in those areas where licensing is deemed necessary1 has resulted in significant costs to consumers and the broader economy4 7#g7 ,the ,united ,states ,supreme ,court responded to these concerns in ,north ,carolina ,board of ,dental ,examiners v4 ,,ftc1 #ace ,s4 ,ct4 #aaja 7#bjae71 holding that self-interested licensing boards may be subject to liability under the antitrust laws1 but that decision has also created significant uncertainty for the ,states and their licensing boards4 7#h7 ,some ,states have responded to the decision in ,north ,carolina ,board of ,dental ,examiners by establishing a layer of bureaucratic oversight that merely monitors board actions for consistency with ,state licensing laws4 ,this response is a missed opportunity for reform1 as it does not address the specific competition concern raised in ,north ,carolina ,board of ,dental ,examiners or the underlying problems with over-reliance on occupational licensure as a regulatory approach and with overly broad enforcement of licensing laws as a means to regulate commercial activities outside an occupation's scope of practice4 7#i7 ,legislation is necessary to clarify the requirements of active supervision1 both to offer ,states a clear and certain mechanism to immunize their occupational boards and to make clear that mere bureaucratic oversight to ensure consistency with ,state licensing laws does not suffice to confer immunity4 7#aj7 ,this ,act is intended to offer ,states a choice between two alternative routes to achieve immunity for their occupational licensing boards--either establishing a mechanism for meaningful active supervision of licensing boards by ,state officials or establishing a mechanism for meaningful judicial review of board actions in the ,state courts4 #c4 ,definitions ,in this ,act3 7#a7 ,certification ,the term certification means a voluntary program under which-- 7,a7 a private organization 7in the case of private certification7 or the government of a ,state 7in the case of government certification7 authorizes an individual who meets certain personal qualifications to use certified as a designated title with respect to the performance of a lawful occupation2 and 7,b7 a non-certified individual may perform the lawful occupation for compensation but may not use the title certified4 7#b7 ,good faith ,the term good faith1 with respect to performance-- 7,a7 means diligent performance that is directed towards achieving the policies set forth in this ,act2 7,b7 does not include performance that is-- 7i7 designed to subvert or evade the policies set forth in this ,act2 or 7ii7 carried out in a manner that has the systematic effect of subverting or evading the policies set forth in this ,act2 and 7,c7 refers to an objective1 rather than subjective1 standard4 7#c7 ,lawful occupation ,the term lawful occupation means a course of conduct1 pursuit1 or profession that includes the sale of goods or services that are not themselves illegal to sell irrespective of whether the individual selling the goods or services is subject to occupational licensing laws4 7#d7 ,least restrictive regulation ,the term least restrictive regulation means1 from least to most restrictive3 7,a7 ,one or more of the following1 each of which shall be considered equally restrictive3 7i7 ,market competition4 7ii7 ,industry or consumer-related ratings and reviews4 7iii7 ,private certification4 7iv7 ,a specific private civil cause of action to remedy consumer harm4 7v7 ,a deceptive trade practice act4 7vi7 ,a regulation of the process of providing the specific goods or services to consumers4 7vii7 ,inspections4 7viii7 ,bonding or insurance4 7ix7 ,registration4 7x7 ,government certification4 7,b7 ,specialty occupational license for medical reimbursement4 7,c7 ,occupational license4 7#e7 ,less restrictive alternatives to occupational licensing ,the term less restrictive alternatives to occupational licensing-- 7,a7 means regulations that achieve the public health or safety goals asserted by the government to justify licensing while imposing a less onerous restriction on entry into the marketplace2 and 7,b7 includes the alternative forms of regulation described in paragraph 7#d77;,a74 7#f7 ,member1 officer1 or employee ,the term member1 officer1 or employee1 with respect to an occupational licensing board1 means an individual appointed by a ,state to the board4 7#g7 ,occupational license ,the term occupational license means a nontransferable authorization under law for an individual to perform a lawful occupation for compensation based on meeting personal qualifications established by the ,state government4 7#h7 ,occupational licensing board ,the term occupational licensing board or board means an entity established under ,state law-- 7,a7 the express purpose of which is to regulate the personal qualifications required to engage in or practice a particular lawful occupation2 7,b7 that has authority conferred by ,state law to interpret or enforce the occupational licensing laws of the ,state2 and 7,c7 not less than #b_/c of the members of which are appointed by an elected official of the ,state4 7#i7 ,occupational licensing law ,the term occupational licensing law-- 7,a7 means a ,state statute that allows an individual to work in a lawful occupation and use an occupational title2 and 7,b7 does not include a business license1 facility license1 building permit1 or zoning and land use regulation1 except to the extent that the law regulates an individual's personal qualifications to engage in or practice a lawful occupation4 7#aj7 ,occupational regulation ,the term occupational regulation-- 7,a7 means a statute1 rule1 practice1 policy1 or other law that substantially burdens an individual's ability to work in a lawful occupation2 7,b7 includes a regulation requiring registration1 certification1 or an occupational license2 and 7,c7 does not include a business license1 facility license1 building permit1 or zoning and land use regulation except to the extent that such a requirement or restriction substantially burdens an individual's ability to work in a lawful occupation4 7#aa7 ,personal qualifications ,the term personal qualifications means criteria related to an individual's personal background and characteristics1 including completion of an approved educational program1 satisfactory performance on an examination1 work experience1 other evidence of attainment of requisite skills or knowledge1 moral standing1 criminal history1 and completion of continuing education4 7#ab7 ,registration ,the term registration means a requirement that an individual give notice to the government of a ,state that may include-- 7,a7 the individual's name and address2 7,b7 the individual's agent for service of process2 7,c7 the location of the activity to be performed2 and 7,d7 a description of the service the individual provides4 7#ac7 ,specialty occupational license for medical reimbursement ,the term specialty occupational license for medical reimbursement means a nontransferable authorization in law for an individual to qualify for payment or reimbursement from a government agency for the non-exclusive provision of medical services based on meeting personal qualifications established by the ,state legislature4 7#ad7 ,state ,the term ,state means-- 7,a7 each of the several ,states2 and 7,b7 the ,district of ,columbia4 #d4 ,antitrust immunity 7a7 ,in general ,subject to subsection 7b71 the ,sherman ,act 7#ae ,u4,s4,c4 #a et seq47 shall not apply to any action of an occupational licensing board of a ,state1 or any action of a member1 officer1 or employee of the board acting in the official capacity of that member1 officer1 or employee1 if-- 7#a7 the requirements under section #e of this ,act are satisfied2 or 7#b7 the requirements under section #f of this ,act are satisfied4 7b7 ,requirement of good faith ,the immunity provided under subsection 7a7 shall not apply to any action of an occupational licensing board of a ,state1 or any action of a member1 officer1 or employee of the board acting in the official capacity of that member1 officer1 or employee1 unless the ,state acts in good faith to perform the applicable requirements under section #e or #f4 7c7 ,existing entities or procedures ,the fact that a ,state governmental entity or procedure was established before the date of enactment of this ,act shall not prevent an occupational licensing board of the ,state1 or a member1 officer1 or employee of that board1 from qualifying for immunity under subsection 7a7 if the ,state governmental entity or procedure satisfies the applicable requirements under section #e or #f4 7d7 ,savings clause ,the immunity provided under subsection 7a7 shall not apply to an action unrelated to regulating the personal qualifications required to engage in or practice a lawful occupation1 such as rules of an occupational licensing board governing minimum prices or residency requirements4 #e4 ,active supervision 7a7 ,in general ,the immunity under section #d7;a7 shall apply to any action of an occupational licensing board of a ,state1 or any action of a member1 officer1 or employee of that board acting in the official capacity of that member1 officer1 or employee1 if-- 7#a7 the actions of the occupational licensing board or member1 officer1 or employee are authorized by a non-frivolous interpretation of the occupational licensing laws of the ,state2 7#b7 the ,state adopts a policy of using less restrictive alternatives to occupational licensing to address real1 substantial threats to public health1 safety1 or welfare1 in accordance with subsection 7b7 of this section2 and 7#c7 the ,state enacts legislation providing for active supervision of the actions of an occupational licensing board and any member1 officer1 or employee of such a board1 in accordance with subsection 7c7 of this section4 7b7 ,policy ,the ,state shall adopt a policy providing that-- 7#a7 occupational licensing laws should be construed and applied to-- 7,a7 protect public health1 safety1 and welfare2 and 7,b7 increase economic opportunity1 promote competition1 and encourage innovation2 7#b7 regulators should displace competition through occupational licensing laws only if less restrictive alternatives to occupational licensing will not suffice to protect consumers from real1 substantial threats to public health1 safety1 or welfare2 and 7#c7 an occupational licensing law should be enforced against an individual only to the extent the individual sells goods or services that are included explicitly in the statute or regulation that defines the occupation's scope of practice4 7c7 ,active supervision 7#a7 ,in general ,the legislation enacted under subsection 7a77#c7 shall satisfy each of the requirements under this subsection4 7#b7 ,day-to-day supervision 7,a7 ,establishment of ,office of ,supervision of ,occupational ,boards ,the ,state shall establish an ,office of ,supervision of ,occupational ,boards 7referred to in this subsection as the ,office7 to review the actions of occupational licensing boards to ensure compliance with the policy adopted under subsection 7b74 7,b7 ,duties ,the ,office shall-- 7i7 review and explicitly approve or reject in writing any occupational regulation proposed by a board before the board may adopt or implement the occupational regulation2 7ii7 play a substantial role in the development of a board's rules and policies to ensure they benefit consumers and do not serve the private interests of providers of goods and services regulated by the board2 7iii7 disapprove in writing the use of any board rule or policy relating to an occupational regulation and terminate any enforcement action1 including any such action pending on the date of enactment of this ,act1 that is inconsistent with the policy adopted under subsection 7b72 7iv7 exercise control over each board by reviewing and affirmatively approving in writing only occupational regulations that are consistent with the policy adopted under subsection 7b72 7v7 use the analysis conducted under paragraph 7#e7 and conduct reasonable investigations to gain additional information1 including about less restrictive regulatory approaches1 to promote compliance with subsection 7b72 7vi7 7,i7 be staffed by not less than #a attorney2 and 7,,ii7 prohibit attorneys working in the ,office from providing general counsel to any board2 and 7vii7 7,i7 approve board actions explicitly in writing1 rather than implicitly2 and 7,,ii7 clearly establish that silence or inaction does not constitute approval4 7#c7 ,internal review 7,a7 ,complaint ,the ,state shall establish a mechanism under which a person who is a resident of or has a license to operate a business in the ,state may file a complaint with the ,office about an occupational regulation of an occupational licensing board in the ,state that the person believes is inconsistent with the policy adopted under subsection 7b74 7,b7 ,office response ,not later than #ij days after the date on which a person files a complaint under subparagraph 7,a71 the ,office shall-- 7i7 investigate the complaint2 7ii7 identify remedies and instruct the board to take action1 where appropriate2 and 7iii7 respond in writing to the complainant4 7,c7 ,review ,the ,state shall establish a mechanism for review of a determination made by the ,office under subparagraph 7,b71 under which a complainant may appeal the determination to the general division of the trial court of the ,state if the challenged occupational regulation would substantially burden the complainant's ability to-- 7i7 engage in a lawful occupation2 or 7ii7 employ or contract other individuals for the performance of a lawful occupation2 and 7#d7 ,right to raise defense 7,a7 ,in general ,the ,state shall authorize an individual to assert as a defense1 in any administrative or judicial proceeding to enforce an occupational regulation1 that the regulation does not comply with the policy adopted under subsection 7b74 7,b7 ,procedures ,in a proceeding described in subparagraph 7,a7-- 7i7 an individual who asserts a defense under this paragraph has the initial burden of proof that the occupational regulation being enforced substantially burdens the individual's ability to engage in a lawful occupation2 7ii7 if an individual meets the burden of proof under clause 7i71 the ,state shall be required to demonstrate by clear and convincing evidence that the occupational regulation-- 7,i7 advances an important government interest in protecting against real1 substantial threats to public health1 safety1 or welfare2 and 7,,ii7 is substantially related to achievement of the important government interest described in subclause 7,i71 in light of the availability of less restrictive alternatives to occupational licensing2 and 7iii7 in reviewing an alleged violation of the policy adopted under subsection 7b71 an administrative agency or a court-- 7,i7 shall make its own findings of fact and conclusions of law2 7,,ii7 may not rely on a legislative finding of fact presented in admissible form to the agency or court2 and 7,,iii7 may not grant any presumption to a legislative determination-- 7aa7 of harm to public health1 safety1 or welfare2 or 7bb7 that the occupational regulation is substantially related to achievement of the important government interest described in clause 7ii77,i74 7#e7 ,periodic advisory review 7,a7 ,in general ,the ,state shall establish a mechanism for periodic non-binding review of existing occupational regulations1 and non-binding review of new proposed occupational regulations1 to ensure that the occupational regulations comply with the policy adopted under subsection 7b74 7,b7 ,scope of review ,the entity conducting the review under subparagraph 7,a7-- 7i7 shall publish an annual written report encompassing approximately #bj percent of the occupations subject to occupational regulations within the ,state1 such that the entity will review all occupational regulations within the ,state during each #e-year period2 and 7ii7 shall publish a written report assessing any proposed occupational licensing law1 or other proposed law that would expand the authority of an occupational licensing board to impose occupational regulations1 before the proposed law is submitted to a vote by the ,state legislature4 7,c7 ,requirements for analysis ,in conducting the review required under subparagraph 7,a71 the entity shall-- 7i7 determine whether the law or other regulation satisfies the policy adopted under subsection 7b7 of using the least restrictive regulation necessary to protect consumers from real1 substantial threats to public health1 safety1 or welfare2 7ii7 evaluate the effects of the law or other regulation on opportunities for workers1 consumer choices and costs1 general unemployment1 market competition1 governmental costs1 and other effects2 7iii7 compare the law or other regulation to whether and how other ,states regulate the applicable occupation2 and 7iv7 if the applicable occupation is subject to an occupational licensing law1 evaluate-- 7,i7 the feasibility of entering into reciprocity compacts with one or more other ,states to improve worker mobility and labor market flexibility2 and 7,,ii7 the advisability of endorsing occupational licenses granted by other ,states to spouses of active service military members as if those occupational licenses were granted by the ,state conducting the review4 #f4 ,judicial review 7a7 ,in general ,the immunity under section #d7;a7 shall apply to any action of an occupational licensing board of a ,state1 or any action of a member1 officer1 or employee of that board acting in the official capacity of that member1 officer1 or employee1 if-- 7#a7 the actions of the occupational licensing board or member1 officer1 or employee are authorized by a non-frivolous interpretation of the occupational licensing laws of the ,state2 7#b7 the ,state adopts a policy of using less restrictive alternatives to occupational licensing to address real1 substantial threats to public health1 safety1 or welfare1 in accordance with section #e7;b72 and 7#c7 the ,state enacts legislation providing for judicial review of occupational licensing laws1 in accordance with subsection 7b7 of this section4 7b7 ,judicial review legislation ,legislation enacted by a ,state under subsection 7a77#c7-- 7#a7 shall-- 7,a7 prohibit the ,state and any occupational licensing board from imposing an occupational licensing law unless the ,state-- 7i7 identifies an important government interest in protecting against real1 substantial threats to public health1 safety1 or welfare2 and 7ii7 demonstrates that the occupational licensing law is substantially related to achievement of the important government interest described in clause 7i71 in light of the availability of less restrictive alternatives to occupational licensing2 7,b7 provide an affirmative defense against enforcement of any occupational licensing law of the ,state under which the ,state shall be required to demonstrate that the standard under subparagraph 7,a7 has been met2 7,c7 establish a cause of action under which-- 7i7 a person may bring an action for injunctive relief against enforcement of an occupational licensing law of the ,state2 7ii7 the plaintiff bears the initial burden to prove that the challenged occupational licensing law substantially burdens the plaintiff's ability to engage in a lawful occupation2 and 7iii7 once the plaintiff makes the initial showing under clause 7ii71 the ,state is required to demonstrate that the standard under subparagraph 7,a7 has been met2 7,d7 provide for an award of reasonable costs and attorney fees to a person who successfully challenges the application of an occupational licensing law of the ,state by-- 7i7 raising an affirmative defense under subparagraph 7,b72 or 7ii7 bringing an action under subparagraph 7,c72 and 7,e7 provide for independent judicial review of the occupational licensing laws of the ,state to ensure that the standard set forth in subparagraph 7,a7 has been met2 and 7#b7 may not authorize a court to-- 7,a7 uphold enforcement of an occupational licensing law of the ,state simply because the court believes the law is rationally related to a legitimate governmental purpose2 7,b7 rely on hypothetical risks to public safety1 not substantiated by evidence in the record1 to uphold enforcement of an occupational licensing law of the ,state2 7,c7 defer to factual or legal conclusions of another person or entity1 rather than exercising independent review2 or 7,d7 rely on a post hoc justification for the action of an occupational licensing board that was not put forward by the board at the time of the challenged action4 7c7 ,rule of construction ,nothing in subsection 7b7 shall be construed to require legislation enacted by a ,state under subsection 7a77#c7 to provide a right to recover monetary damages1 other than reasonable costs and attorney fees as provided under subsection 7b77#a77;,d74