RBI Act

I 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 en- courage innovation, to protect consumers, and to facili- tate the restoration of antitrust immunity to State occu- pational boards, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Restoring Board Im- 4 munity Act of 2021’’ or the ‘‘RBI Act’’. 5 SEC. 2. STATEMENT OF FINDINGS AND PURPOSE. 6 Congress finds the following: 7 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 3147 IH (1) The prevalence of occupational licensing has 1 increased dramatically in recent decades, in part be- 2 cause private interests have sought licensing in order 3 to limit competition. 4 (2) Occupational licensing often limits opportu- 5 nities for workers, frustrates entrepreneurs seeking 6 to introduce new business models, and raises prices 7 paid by consumers. 8 (3) Licensing should be imposed only to combat 9 real, substantial threats to public health, safety, or 10 welfare and only where other less restrictive regu- 11 latory alternatives are insufficient to protect con- 12 sumers and serve the public interest. 13 (4) Regulators should consider a range of less 14 restrictive alternatives before enacting an occupa- 15 tional licensing regime, which may include inspec- 16 tions, bonding or insurance requirements, registra- 17 tion, and voluntary certification. 18 (5) Voluntary certification provides a particu- 19 larly significant alternative to licensure, as it allows 20 market participants to signal to consumers the at- 21 tainment of personal qualifications without limiting 22 entry into the marketplace. 23 (6) The failure of State governments to adopt 24 less restrictive alternatives to licensing, and less bur- 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 3147 IH densome requirements in those areas where licensing 1 is deemed necessary, has resulted in significant costs 2 to consumers and the broader economy. 3 (7) The United States Supreme Court re- 4 sponded to these concerns in North Carolina Board 5 of Dental Examiners v. FTC, 135 S. Ct. 1101 6 (2015), holding that self-interested licensing boards 7 may be subject to liability under the antitrust laws, 8 but that decision has also created significant uncer- 9 tainty for the States and their licensing boards. 10 (8) Some States have responded to the decision 11 in North Carolina Board of Dental Examiners by es- 12 tablishing a layer of bureaucratic oversight that 13 merely monitors board actions for consistency with 14 State licensing laws. This response is a missed op- 15 portunity for reform, as it does not address the spe- 16 cific competition concern raised in North Carolina 17 Board of Dental Examiners or the underlying prob- 18 lems with over-reliance on occupational licensure as 19 a regulatory approach and with overly broad enforce- 20 ment of licensing laws as a means to regulate com- 21 mercial activities outside an occupation’s scope of 22 practice. 23 (9) Legislation is necessary to clarify the re- 24 quirements of active supervision, both to offer States 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 3147 IH a clear and certain mechanism to immunize their oc- 1 cupational boards and to make clear that mere bu- 2 reaucratic oversight to ensure consistency with State 3 licensing laws does not suffice to confer immunity. 4 (10) This Act is intended to offer States a 5 choice between two alternative routes to achieve im- 6 munity for their occupational licensing boards—ei- 7 ther establishing a mechanism for meaningful active 8 supervision of licensing boards by State officials or 9 establishing a mechanism for meaningful judicial re- 10 view of board actions in the State courts. 11 SEC. 3. DEFINITIONS. 12 In this Act: 13 (1) CERTIFICATION.—The term ‘‘certification’’ 14 means a voluntary program under which— 15 (A) a private organization (in the case of 16 private certification) or the government of a 17 State (in the case of government certification) 18 authorizes an individual who meets certain per- 19 sonal qualifications to use ‘‘certified’’ as a des- 20 ignated title with respect to the performance of 21 a lawful occupation; and 22 (B) a non-certified individual may perform 23 the lawful occupation for compensation but may 24 not use the title ‘‘certified’’. 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 3147 IH (2) GOOD FAITH.—The term ‘‘good faith’’, with 1 respect to performance— 2 (A) means diligent performance that is di- 3 rected towards achieving the policies set forth 4 in this Act; 5 (B) does not include performance that is— 6 (i) designed to subvert or evade the 7 policies set forth in this Act; or 8 (ii) carried out in a manner that has 9 the systematic effect of subverting or evad- 10 ing the policies set forth in this Act; and 11 (C) refers to an objective, rather than sub- 12 jective, standard. 13 (3) LAWFUL OCCUPATION.—The term ‘‘lawful 14 occupation’’ means a course of conduct, pursuit, or 15 profession that includes the sale of goods or services 16 that are not themselves illegal to sell irrespective of 17 whether the individual selling the goods or services 18 is subject to occupational licensing laws. 19 (4) LEAST RESTRICTIVE REGULATION.—The 20 term ‘‘least restrictive regulation’’ means, from least 21 to most restrictive: 22 (A) One or more of the following, each of 23 which shall be considered equally restrictive: 24 (i) Market competition. 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 3147 IH (ii) Industry or consumer-related rat- 1 ings and reviews. 2 (iii) Private certification. 3 (iv) A specific private civil cause of 4 action to remedy consumer harm. 5 (v) A deceptive trade practice act. 6 (vi) A regulation of the process of 7 providing the specific goods or services to 8 consumers. 9 (vii) Inspections. 10 (viii) Bonding or insurance. 11 (ix) Registration. 12 (x) Government certification. 13 (B) Specialty occupational license for med- 14 ical reimbursement. 15 (C) Occupational license. 16 (5) LESS RESTRICTIVE ALTERNATIVES TO OC- 17 CUPATIONAL LICENSING.—The term ‘‘less restrictive 18 alternatives to occupational licensing’’— 19 (A) means regulations that achieve the 20 public health or safety goals asserted by the 21 government to justify licensing while imposing a 22 less onerous restriction on entry into the mar- 23 ketplace; and 24 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 3147 IH (B) includes the alternative forms of regu- 1 lation described in paragraph (4)(A). 2 (6) MEMBER, OFFICER, OR EMPLOYEE.—The 3 term ‘‘member, officer, or employee’’, with respect to 4 an occupational licensing board, means an individual 5 appointed by a State to the board. 6 (7) OCCUPATIONAL LICENSE.—The term ‘‘occu- 7 pational license’’ means a nontransferable authoriza- 8 tion under law for an individual to perform a lawful 9 occupation for compensation based on meeting per- 10 sonal qualifications established by the State govern- 11 ment. 12 (8) OCCUPATIONAL LICENSING BOARD.—The 13 term ‘‘occupational licensing board’’ or ‘‘board’’ 14 means an entity established under State law— 15 (A) the express purpose of which is to reg- 16 ulate the personal qualifications required to en- 17 gage in or practice a particular lawful occupa- 18 tion; 19 (B) that has authority conferred by State 20 law to interpret or enforce the occupational li- 21 censing laws of the State; and 22 (C) not less than 2⁄3 of the members of 23 which are appointed by an elected official of the 24 State. 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 3147 IH (9) OCCUPATIONAL LICENSING LAW.—The term 1 ‘‘occupational licensing law’’— 2 (A) means a State statute that allows an 3 individual to work in a lawful occupation and 4 use an occupational title; and 5 (B) does not include a business license, fa- 6 cility license, building permit, or zoning and 7 land use regulation, except to the extent that 8 the law regulates an individual’s personal quali- 9 fications to engage in or practice a lawful occu- 10 pation. 11 (10) OCCUPATIONAL REGULATION.—The term 12 ‘‘occupational regulation’’— 13 (A) means a statute, rule, practice, policy, 14 or other law that substantially burdens an indi- 15 vidual’s ability to work in a lawful occupation; 16 (B) includes a regulation requiring reg- 17 istration, certification, or an occupational li- 18 cense; and 19 (C) does not include a business license, fa- 20 cility license, building permit, or zoning and 21 land use regulation except to the extent that 22 such a requirement or restriction substantially 23 burdens an individual’s ability to work in a law- 24 ful occupation. 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 3147 IH (11) PERSONAL QUALIFICATIONS.—The term 1 ‘‘personal qualifications’’ means criteria related to 2 an individual’s personal background and characteris- 3 tics, including completion of an approved educational 4 program, satisfactory performance on an examina- 5 tion, work experience, other evidence of attainment 6 of requisite skills or knowledge, moral standing, 7 criminal history, and completion of continuing edu- 8 cation. 9 (12) REGISTRATION.—The term ‘‘registration’’ 10 means a requirement that an individual give notice 11 to the government of a State that may include— 12 (A) the individual’s name and address; 13 (B) the individual’s agent for service of 14 process; 15 (C) the location of the activity to be per- 16 formed; and 17 (D) a description of the service the indi- 18 vidual provides. 19 (13) SPECIALTY OCCUPATIONAL LICENSE FOR 20 MEDICAL REIMBURSEMENT.—The term ‘‘specialty 21 occupational license for medical reimbursement’’ 22 means a nontransferable authorization in law for an 23 individual to qualify for payment or reimbursement 24 from a government agency for the non-exclusive pro- 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 3147 IH vision of medical services based on meeting personal 1 qualifications established by the State legislature. 2 (14) STATE.—The term ‘‘State’’ means— 3 (A) each of the several States; and 4 (B) the District of Columbia. 5 SEC. 4. ANTITRUST IMMUNITY. 6 (a) IN GENERAL.—Subject to subsection (b), the 7 Sherman Act (15 U.S.C. 1 et seq.) shall not apply to any 8 action of an occupational licensing board of a State, or 9 any action of a member, officer, or employee of the board 10 acting in the official capacity of that member, officer, or 11 employee, if— 12 (1) the requirements under section 5 of this Act 13 are satisfied; or 14 (2) the requirements under section 6 of this Act 15 are satisfied. 16 (b) REQUIREMENT OF GOOD FAITH.—The immunity 17 provided under subsection (a) shall not apply to any action 18 of an occupational licensing board of a State, or any action 19 of a member, officer, or employee of the board acting in 20 the official capacity of that member, officer, or employee, 21 unless the State acts in good faith to perform the applica- 22 ble requirements under section 5 or 6. 23 (c) EXISTING ENTITIES OR PROCEDURES.—The fact 24 that a State governmental entity or procedure was estab- 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 3147 IH lished before the date of enactment of this Act shall not 1 prevent an occupational licensing board of the State, or 2 a member, officer, or employee of that board, from quali- 3 fying for immunity under subsection (a) if the State gov- 4 ernmental entity or procedure satisfies the applicable re- 5 quirements under section 5 or 6. 6 (d) SAVINGS CLAUSE.—The immunity provided 7 under subsection (a) shall not apply to an action unrelated 8 to regulating the personal qualifications required to en- 9 gage in or practice a lawful occupation, such as rules of 10 an occupational licensing board governing minimum prices 11 or residency requirements. 12 SEC. 5. ACTIVE SUPERVISION. 13 (a) IN GENERAL.—The immunity under section 4(a) 14 shall apply to any action of an occupational licensing 15 board of a State, or any action of a member, officer, or 16 employee of that board acting in the official capacity of 17 that member, officer, or employee, if— 18 (1) the actions of the occupational licensing 19 board or member, officer, or employee are author- 20 ized by a non-frivolous interpretation of the occupa- 21 tional licensing laws of the State; 22 (2) the State adopts a policy of using less re- 23 strictive alternatives to occupational licensing to ad- 24 dress real, substantial threats to public health, safe- 25 VerDate Sep 11 2014 00:42 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3147.IH H3147 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 3147 IH ty, or welfare, in accordance with subsection (b) of 1 this section; and 2 (3) the State enacts legislation providing for ac- 3 tive supervision of the actions of an occupational li- 4 censing board and any member, officer, or employee 5 of such a board, in accordance with subsection (c) 6 of this section. 7 (b) POLICY.—The State shall adopt a policy pro- 8 viding that— 9 (1) occupational licensing laws should be con- 10 strued a [Text truncated for display. 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