Restoring Board Immunity Act of 2021 or the RBI Act
This bill grants antitrust immunity to state occupational licensing boards in states that satisfy specified occupational licensing law requirements. These include (1) requiring a board's actions to be authorized by a non-frivolous interpretation of the state's occupational licensing laws; and (2) using less restrictive alternatives to occupational licensing to address threats to public health, safety, or welfare. Such states must either establish an office to supervise boards or provide for judicial review of occupational licensing laws.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3147 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 3147
To help States combat abuse of occupational licensing laws by economic
incumbents, to promote competition, to encourage innovation, to protect
consumers, and to facilitate the restoration of antitrust immunity to
State occupational boards, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 12, 2021
Mr. Issa (for himself, Mrs. Harshbarger, and Mr. Walberg) introduced
the following bill; which was referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To help States combat abuse of occupational licensing laws by economic
incumbents, to promote competition, to encourage innovation, to protect
consumers, and to facilitate the restoration of antitrust immunity to
State occupational boards, 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.
This Act may be cited as the ``Restoring Board Immunity Act of
2021'' or the ``RBI Act''.
SEC. 2. STATEMENT OF FINDINGS AND PURPOSE.
Congress finds the following:
(1) The prevalence of occupational licensing has increased
dramatically in recent decades, in part because private
interests have sought licensing in order to limit competition.
(2) Occupational licensing often limits opportunities for
workers, frustrates entrepreneurs seeking to introduce new
business models, and raises prices paid by consumers.
(3) Licensing should be imposed only to combat real,
substantial threats to public health, safety, or welfare and
only where other less restrictive regulatory alternatives are
insufficient to protect consumers and serve the public
interest.
(4) Regulators should consider a range of less restrictive
alternatives before enacting an occupational licensing regime,
which may include inspections, bonding or insurance
requirements, registration, and voluntary certification.
(5) Voluntary certification provides a particularly
significant alternative to licensure, as it allows market
participants to signal to consumers the attainment of personal
qualifications without limiting entry into the marketplace.
(6) The failure of State governments to adopt less
restrictive alternatives to licensing, and less burdensome
requirements in those areas where licensing is deemed
necessary, has resulted in significant costs to consumers and
the broader economy.
(7) The United States Supreme Court responded to these
concerns in North Carolina Board of Dental Examiners v. FTC,
135 S. Ct. 1101 (2015), holding that self-interested licensing
boards may be subject to liability under the antitrust laws,
but that decision has also created significant uncertainty for
the States and their licensing boards.
(8) 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 laws. This response is a
missed opportunity for reform, 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
practice.
(9) Legislation is necessary to clarify the requirements of
active supervision, 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 immunity.
(10) 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 courts.
SEC. 3. DEFINITIONS.
In this Act:
(1) Certification.--The term ``certification'' means a
voluntary program under which--
(A) a private organization (in the case of private
certification) or the government of a State (in the
case of government certification) authorizes an
individual who meets certain personal qualifications to
use ``certified'' as a designated title with respect to
the performance of a lawful occupation; and
(B) a non-certified individual may perform the
lawful occupation for compensation but may not use the
title ``certified''.
(2) Good faith.--The term ``good faith'', with respect to
performance--
(A) means diligent performance that is directed
towards achieving the policies set forth in this Act;
(B) does not include performance that is--
(i) designed to subvert or evade the
policies set forth in this Act; or
(ii) carried out in a manner that has the
systematic effect of subverting or evading the
policies set forth in this Act; and
(C) refers to an objective, rather than subjective,
standard.
(3) Lawful occupation.--The term ``lawful occupation''
means a course of conduct, pursuit, 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 laws.
(4) Least restrictive regulation.--The term ``least
restrictive regulation'' means, from least to most restrictive:
(A) One or more of the following, each of which
shall be considered equally restrictive:
(i) Market competition.
(ii) Industry or consumer-related ratings
and reviews.
(iii) Private certification.
(iv) A specific private civil cause of
action to remedy consumer harm.
(v) A deceptive trade practice act.
(vi) A regulation of the process of
providing the specific goods or services to
consumers.
(vii) Inspections.
(viii) Bonding or insurance.
(ix) Registration.
(x) Government certification.
(B) Specialty occupational license for medical
reimbursement.
(C) Occupational license.
(5) Less restrictive alternatives to occupational
licensing.--The term ``less restrictive alternatives to
occupational licensing''--
(A) 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 marketplace; and
(B) includes the alternative forms of regulation
described in paragraph (4)(A).
(6) Member, officer, or employee.--The term ``member,
officer, or employee'', with respect to an occupational
licensing board, means an individual appointed by a State to
the board.
(7) 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 government.
(8) Occupational licensing board.--The term ``occupational
licensing board'' or ``board'' means an entity established
under State law--
(A) the express purpose of which is to regulate the
personal qualifications required to engage in or
practice a particular lawful occupation;
(B) that has authority conferred by State law to
interpret or enforce the occupational licensing laws of
the State; and
(C) not less than \2/3\ of the members of which are
appointed by an elected official of the State.
(9) Occupational licensing law.--The term ``occupational
licensing law''--
(A) means a State statute that allows an individual
to work in a lawful occupation and use an occupational
title; and
(B) does not include a business license, facility
license, building permit, or zoning and land use
regulation, except to the extent that the law regulates
an individual's personal qualifications to engage in or
practice a lawful occupation.
(10) Occupational regulation.--The term ``occupational
regulation''--
(A) means a statute, rule, practice, policy, or
other law that substantially burdens an individual's
ability to work in a lawful occupation;
(B) includes a regulation requiring registration,
certification, or an occupational license; and
(C) does not include a business license, facility
license, building permit, 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 occupation.
(11) Personal qualifications.--The term ``personal
qualifications'' means criteria related to an individual's
personal background and characteristics, including completion
of an approved educational program, satisfactory performance on
an examination, work experience, other evidence of attainment
of requisite skills or knowledge, moral standing, criminal
history, and completion of continuing education.
(12) Registration.--The term ``registration'' means a
requirement that an individual give notice to the government of
a State that may include--
(A) the individual's name and address;
(B) the individual's agent for service of process;
(C) the location of the activity to be performed;
and
(D) a description of the service the individual
provides.
(13) 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 legislature.
(14) State.--The term ``State'' means--
(A) each of the several States; and
(B) the District of Columbia.
SEC. 4. ANTITRUST IMMUNITY.
(a) In General.--Subject to subsection (b), the Sherman Act (15
U.S.C. 1 et seq.) shall not apply to any action of an occupational
licensing board of a State, or any action of a member, officer, or
employee of the board acting in the official capacity of that member,
officer, or employee, if--
(1) the requirements under section 5 of this Act are
satisfied; or
(2) the requirements under section 6 of this Act are
satisfied.
(b) Requirement of Good Faith.--The immunity provided under
subsection (a) shall not apply to any action of an occupational
licensing board of a State, or any action of a member, officer, or
employee of the board acting in the official capacity of that member,
officer, or employee, unless the State acts in good faith to perform
the applicable requirements under section 5 or 6.
(c) 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 State, or a member, officer, or employee of that board, from
qualifying for immunity under subsection (a) if the State governmental
entity or procedure satisfies the applicable requirements under section
5 or 6.
(d) Savings Clause.--The immunity provided under subsection (a)
shall not apply to an action unrelated to regulating the personal
qualifications required to engage in or practice a lawful occupation,
such as rules of an occupational licensing board governing minimum
prices or residency requirements.
SEC. 5. ACTIVE SUPERVISION.
(a) In General.--The immunity under section 4(a) shall apply to any
action of an occupational licensing board of a State, or any action of
a member, officer, or employee of that board acting in the official
capacity of that member, officer, or employee, if--
(1) the actions of the occupational licensing board or
member, officer, or employee are authorized by a non-frivolous
interpretation of the occupational licensing laws of the State;
(2) the State adopts a policy of using less restrictive
alternatives to occupational licensing to address real,
substantial threats to public health, safety, or welfare, in
accordance with subsection (b) of this section; and
(3) the State enacts legislation providing for active
supervision of the actions of an occupational licensing board
and any member, officer, or employee of such a board, in
accordance with subsection (c) of this section.
(b) Policy.--The State shall adopt a policy providing that--
(1) occupational licensing laws should be construed and
applied to--
(A) protect public health, safety, and welfare; and
(B) increase economic opportunity, promote
competition, and encourage innovation;
(2) regulators should displace competition through
occupational licensing laws only if less restrictive
alternatives to occupational licensing will not suffice to
protect consumers from real, substantial threats to public
health, safety, or welfare; and
(3) 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 practice.
(c) Active Supervision.--
(1) In general.--The legislation enacted under subsection
(a)(3) shall satisfy each of the requirements under this
subsection.
(2) Day-to-day supervision.--
(A) Establishment of office of supervision of
occupational boards.--The State shall establish an
Office of Supervision of Occupational Boards (referred
to in this subsection as the ``Office'') to review the
actions of occupational licensing boards to ensure
compliance with the policy adopted under subsection
(b).
(B) Duties.--The Office shall--
(i) review and explicitly approve or reject
in writing any occupational regulation proposed
by a board before the board may adopt or
implement the occupational regulation;
(ii) 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 board;
(iii) disapprove in writing the use of any
board rule or policy relating to an
occupational regulation and terminate any
enforcement action, including any such action
pending on the date of enactment of this Act,
that is inconsistent with the policy adopted
under subsection (b);
(iv) exercise control over each board by
reviewing and affirmatively approving in
writing only occupational regulations that are
consistent with the policy adopted under
subsection (b);
(v) use the analysis conducted under
paragraph (5) and conduct reasonable
investigations to gain additional information,
including about less restrictive regulatory
approaches, to promote compliance with
subsection (b);
(vi)(I) be staffed by not less than 1
attorney; and
(II) prohibit attorneys working in the
Office from providing general counsel to any
board; and
(vii)(I) approve board actions explicitly
in writing, rather than implicitly; and
(II) clearly establish that silence or
inaction does not constitute approval.
(3) Internal review.--
(A) 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 (b).
(B) Office response.--Not later than 90 days after
the date on which a person files a complaint under
subparagraph (A), the Office shall--
(i) investigate the complaint;
(ii) identify remedies and instruct the
board to take action, where appropriate; and
(iii) respond in writing to the
complainant.
(C) Review.--The State shall establish a mechanism
for review of a determination made by the Office under
subparagraph (B), 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--
(i) engage in a lawful occupation; or
(ii) employ or contract other individuals
for the performance of a lawful occupation.
(4) Right to raise defense.--
(A) In general.--The State shall authorize an
individual to assert as a defense, in any
administrative or judicial proceeding to enforce an
occupational regulation, that the regulation does not
comply with the policy adopted under subsection (b).
(B) Procedures.--In a proceeding described in
subparagraph (A)--
(i) 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 occupation;
(ii) if an individual meets the burden of
proof under clause (i), the State shall be
required to demonstrate by clear and convincing
evidence that the occupational regulation--
(I) advances an important
government interest in protecting
against real, substantial threats to
public health, safety, or welfare; and
(II) is substantially related to
achievement of the important government
interest described in subclause (I), in
light of the availability of less
restrictive alternatives to
occupational licensing; and
(iii) in reviewing an alleged violation of
the policy adopted under subsection (b), an
administrative agency or a court--
(I) shall make its own findings of
fact and conclusions of law;
(II) may not rely on a legislative
finding of fact presented in admissible
form to the agency or court; and
(III) may not grant any presumption
to a legislative determination--
(aa) of harm to public
health, safety, or welfare; or
(bb) that the occupational
regulation is substantially
related to achievement of the
important government interest
described in clause (ii)(I).
(5) Periodic advisory review.--
(A) In general.--The State shall establish a
mechanism for periodic non-binding review of existing
occupational regulations, and non-binding review of new
proposed occupational regulations, to ensure that the
occupational regulations comply with the policy adopted
under subsection (b).
(B) Scope of review.--The entity conducting the
review under subparagraph (A)--
(i) shall publish an annual written report
encompassing approximately 20 percent of the
occupations subject to occupational regulations
within the State, such that the entity will
review all occupational regulations within the
State during each 5-year period; and
(ii) shall publish a written report
assessing any proposed occupational licensing
law, or other proposed law that would expand
the authority of an occupational licensing
board to impose occupational regulations,
before the proposed law is submitted to a vote
by the State legislature.
(C) Requirements for analysis.--In conducting the
review required under subparagraph (A), the entity
shall--
(i) determine whether the law or other
regulation satisfies the policy adopted under
subsection (b) of using the least restrictive
regulation necessary to protect consumers from
real, substantial threats to public health,
safety, or welfare;
(ii) evaluate the effects of the law or
other regulation on opportunities for workers,
consumer choices and costs, general
unemployment, market competition, governmental
costs, and other effects;
(iii) compare the law or other regulation
to whether and how other States regulate the
applicable occupation; and
(iv) if the applicable occupation is
subject to an occupational licensing law,
evaluate--
(I) the feasibility of entering
into reciprocity compacts with one or
more other States to improve worker
mobility and labor market flexibility;
and
(II) 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 review.
SEC. 6. JUDICIAL REVIEW.
(a) In General.--The immunity under section 4(a) shall apply to any
action of an occupational licensing board of a State, or any action of
a member, officer, or employee of that board acting in the official
capacity of that member, officer, or employee, if--
(1) the actions of the occupational licensing board or
member, officer, or employee are authorized by a non-frivolous
interpretation of the occupational licensing laws of the State;
(2) the State adopts a policy of using less restrictive
alternatives to occupational licensing to address real,
substantial threats to public health, safety, or welfare, in
accordance with section 5(b); and
(3) the State enacts legislation providing for judicial
review of occupational licensing laws, in accordance with
subsection (b) of this section.
(b) Judicial Review Legislation.--Legislation enacted by a State
under subsection (a)(3)--
(1) shall--
(A) prohibit the State and any occupational
licensing board from imposing an occupational licensing
law unless the State--
(i) identifies an important government
interest in protecting against real,
substantial threats to public health, safety,
or welfare; and
(ii) demonstrates that the occupational
licensing law is substantially related to
achievement of the important government
interest described in clause (i), in light of
the availability of less restrictive
alternatives to occupational licensing;
(B) 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 (A)
has been met;
(C) establish a cause of action under which--
(i) a person may bring an action for
injunctive relief against enforcement of an
occupational licensing law of the State;
(ii) 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
occupation; and
(iii) once the plaintiff makes the initial
showing under clause (ii), the State is
required to demonstrate that the standard under
subparagraph (A) has been met;
(D) 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--
(i) raising an affirmative defense under
subparagraph (B); or
(ii) bringing an action under subparagraph
(C); and
(E) provide for independent judicial review of the
occupational licensing laws of the State to ensure that
the standard set forth in subparagraph (A) has been
met; and
(2) may not authorize a court to--
(A) uphold enforcement of an occupational licensing
law of the State simply because the court believes the
law is rationally related to a legitimate governmental
purpose;
(B) rely on hypothetical risks to public safety,
not substantiated by evidence in the record, to uphold
enforcement of an occupational licensing law of the
State;
(C) defer to factual or legal conclusions of
another person or entity, rather than exercising
independent review; or
(D) 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
action.
(c) Rule of Construction.--Nothing in subsection (b) shall be
construed to require legislation enacted by a State under subsection
(a)(3) to provide a right to recover monetary damages, other than
reasonable costs and attorney fees as provided under subsection
(b)(1)(D).
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Antitrust, Commercial, and Administrative Law.
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