I 
115TH CONGRESS 
1ST SESSION H. R. 3446 
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 
JULY 27, 2017 
Mr. ISSA 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-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Restoring Board Im-
munity Act of 2017’’ or the ‘‘RBI Act’’. 
SEC. 2. STATEMENT OF FINDINGS AND PURPOSE. 
Congress finds the following: 
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(1) The prevalence of occupational licensing has 
increased dramatically in recent decades, in part be-
cause private interests have sought licensing in order 
to limit competition. 
(2) Occupational licensing often limits opportu-
nities 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 regu-
latory alternatives are insufficient to protect con-
sumers and serve the public interest. 
(4) Regulators should consider a range of less 
restrictive alternatives before enacting an occupa-
tional licensing regime, which may include inspec-
tions, bonding or insurance requirements, registra-
tion, and voluntary certification. 
(5) Voluntary certification provides a particu-
larly significant alternative to licensure, as it allows 
market participants to signal to consumers the at-
tainment of personal qualifications without limiting 
entry into the marketplace. 
(6) The failure of State governments to adopt 
less restrictive alternatives to licensing, and less bur-
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densome 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 re-
sponded 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 uncer-
tainty for the States and their licensing boards. 
(8) Some States have responded to the decision 
in North Carolina Board of Dental Examiners by es-
tablishing a layer of bureaucratic oversight that 
merely monitors board actions for consistency with 
State licensing laws. This response is a missed op-
portunity for reform, as it does not address the spe-
cific competition concern raised in North Carolina 
Board of Dental Examiners or the underlying prob-
lems with over-reliance on occupational licensure as 
a regulatory approach and with overly broad enforce-
ment of licensing laws as a means to regulate com-
mercial activities outside an occupation’s scope of 
practice. 
(9) Legislation is necessary to clarify the re-
quirements of active supervision, both to offer States 
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a clear and certain mechanism to immunize their oc-
cupational boards and to make clear that mere bu-
reaucratic 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 im-
munity for their occupational licensing boards—ei-
ther establishing a mechanism for meaningful active 
supervision of licensing boards by State officials or 
establishing a mechanism for meaningful judicial re-
view 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 per-
sonal qualifications to use ‘‘certified’’ as a des-
ignated 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’’. 
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(2) GOOD FAITH.—The term ‘‘good faith’’, with 
respect to performance— 
(A) means diligent performance that is di-
rected 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 evad-
ing the policies set forth in this Act; and 
(C) refers to an objective, rather than sub-
jective, 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. 
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(ii) Industry or consumer-related rat-
ings 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 med-
ical reimbursement. 
(C) Occupational license. 
(5) LESS RESTRICTIVE ALTERNATIVES TO OC-
CUPATIONAL 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 mar-
ketplace; and 
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(B) includes the alternative forms of regu-
lation 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 ‘‘occu-
pational license’’ means a nontransferable authoriza-
tion under law for an individual to perform a lawful 
occupation for compensation based on meeting per-
sonal qualifications established by the State govern-
ment. 
(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 reg-
ulate the personal qualifications required to en-
gage in or practice a particular lawful occupa-
tion; 
(B) that has authority conferred by State 
law to interpret or enforce the occupational li-
censing 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. 
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(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, fa-
cility license, building permit, or zoning and 
land use regulation, except to the extent that 
the law regulates an individual’s personal quali-
fications to engage in or practice a lawful occu-
pation. 
(10) OCCUPATIONAL REGULATION.—The term 
‘‘occupational regulation’’— 
(A) means a statute, rule, practice, policy, 
or other law that substantially burdens an indi-
vidual’s ability to work in a lawful occupation; 
(B) includes a regulation requiring reg-
istration, certification, or an occupational li-
cense; and 
(C) does not include a business license, fa-
cility 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 law-
ful occupation. 
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(11) PERSONAL
QUALIFICATIONS.—The term 
‘‘personal qualifications’’ means criteria related to 
an individual’s personal background and characteris-
tics, including completion of an approved educational 
program, satisfactory performance on an examina-
tion, work experience, other evidence of attainment 
of requisite skills or knowledge, moral standing, 
criminal history, and completion of continuing edu-
cation. 
(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 per-
formed; and 
(D) a description of the service the indi-
vidual 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 pro-
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vision 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 applica-
ble requirements under section 5 or 6. 
(c) EXISTING ENTITIES OR PROCEDURES.—The fact 
that a State governmental entity or procedure was estab-
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lished 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 quali-
fying for immunity under subsection (a) if the State gov-
ernmental entity or procedure satisfies the applicable re-
quirements 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 en-
gage 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 author-
ized by a non-frivolous interpretation of the occupa-
tional licensing laws of the State; 
(2) the State adopts a policy of using less re-
strictive alternatives to occupational licensing to ad-
dress real, substantial threats to public health, safe-
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ty, or welfare, in accordance with subsection (b) of 
this section; and 
(3) the State enacts legislation providing for ac-
tive supervision of the actions of an occupational li-
censing 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 pro-
viding that— 
(1) occupational licensing laws should be con-
strued and applied to— 
(A) protect public health, safety, and wel-
fare; and 
(B) increase economic opportunity, pro-
mote competition, and encourage innovation; 
(2) regulators should displace competition 
through occupational licensing laws only if less re-
strictive alternatives to occupational licensing will 
not suffice to protect consumers from real, substan-
tial threats to public health, safety, or welfare; and 
(3) an occupational licensing law should be en-
forced 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. 
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(c) ACTIVE SUPERVISION.— 
(1) IN
GENERAL.—The legislation enacted 
under subsection (a)(3) shall satisfy each of the re-
quirements under this subsection. 
(2) DAY-TO-DAY SUPERVISION.— 
(A) ESTABLISHMENT OF OFFICE OF SU-
PERVISION
OF
OCCUPATIONAL
BOARDS.—The 
State shall establish an Office of Supervision of 
Occupational Boards (referred to in this sub-
section as the ‘‘Office’’) to review the actions of 
occupational licensing boards to ensure compli-
ance with the policy adopted under subsection 
(b). 
(B) DUTIES.—The Office shall— 
(i) review and explicitly approve or re-
ject in writing any occupational regulation 
proposed by a board before the board may 
adopt or implement the occupational regu-
lation; 
(ii) play a substantial role in the de-
velopment 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; 
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(iii) disapprove in writing the use of 
any board rule or policy relating to an oc-
cupational regulation and terminate any 
enforcement action, including any such ac-
tion pending on the date of enactment of 
this Act, that is inconsistent with the pol-
icy 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 in-
vestigations 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 explic-
itly in writing, rather than implicitly; and 
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(II) clearly establish that silence or 
inaction does not constitute approval. 
(3) INTERNAL REVIEW.— 
(A) COMPLAINT.—The State shall estab-
lish a mechanism under which a person who is 
a resident of or has a license to operate a busi-
ness 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 pol-
icy 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 com-
plainant. 
(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 determina-
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tion to the general division of the trial court of 
the State if the challenged occupational regula-
tion would substantially burden the complain-
ant’s ability to— 
(i) engage in a lawful occupation; or 
(ii) employ or contract other individ-
uals for the performance of a lawful occu-
pation. 
(4) RIGHT TO RAISE DEFENSE.— 
(A) IN GENERAL.—The State shall author-
ize 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 de-
scribed in subparagraph (A)— 
(i) an individual who asserts a defense 
under this paragraph has the initial bur-
den of proof that the occupational regula-
tion being enforced substantially burdens 
the individual’s ability to engage in a law-
ful occupation; 
(ii) if an individual meets the burden 
of proof under clause (i), the State shall be 
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required to demonstrate by clear and con-
vincing evidence that the occupational reg-
ulation— 
(I) advances an important gov-
ernment interest in protecting against 
real, substantial threats to public 
health, safety, or welfare; and 
(II) is substantially related to 
achievement of the important govern-
ment 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 pre-
sumption to a legislative determina-
tion— 
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(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 estab-
lish a mechanism for periodic non-binding re-
view of existing occupational regulations, and 
non-binding review of new proposed occupa-
tional regulations, to ensure that the occupa-
tional regulations comply with the policy adopt-
ed under subsection (b). 
(B) SCOPE OF REVIEW.—The entity con-
ducting the review under subparagraph (A)— 
(i) shall publish an annual written re-
port encompassing approximately 20 per-
cent of the occupations subject to occupa-
tional regulations within the State, such 
that the entity will review all occupational 
regulations within the State during each 5- 
year period; and 
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(ii) shall publish a written report as-
sessing any proposed occupational licensing 
law, or other proposed law that would ex-
pand the authority of an occupational li-
censing board to impose occupational regu-
lations, before the proposed law is sub-
mitted to a vote by the State legislature. 
(C) REQUIREMENTS
FOR
ANALYSIS.—In 
conducting the review required under subpara-
graph (A), the entity shall— 
(i) determine whether the law or other 
regulation satisfies the policy adopted 
under subsection (b) of using the least re-
strictive 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 work-
ers, consumer choices and costs, general 
unemployment, market competition, gov-
ernmental costs, and other effects; 
(iii) compare the law or other regula-
tion to whether and how other States regu-
late the applicable occupation; and 
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(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 mobil-
ity 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 occupa-
tional 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 author-
ized by a non-frivolous interpretation of the occupa-
tional licensing laws of the State; 
(2) the State adopts a policy of using less re-
strictive alternatives to occupational licensing to ad-
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dress real, substantial threats to public health, safe-
ty, or welfare, in accordance with section 5(b); and 
(3) the State enacts legislation providing for ju-
dicial review of occupational licensing laws, in ac-
cordance 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 occupa-
tional licensing board from imposing an occupa-
tional licensing law unless the State— 
(i) identifies an important government 
interest in protecting against real, substan-
tial threats to public health, safety, or wel-
fare; and 
(ii) demonstrates that the occupa-
tional licensing law is substantially related 
to achievement of the important govern-
ment 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 re-
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quired 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 bur-
den to prove that the challenged occupa-
tional licensing law substantially burdens 
the plaintiff’s ability to engage in a lawful 
occupation; and 
(iii) once the plaintiff makes the ini-
tial 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 success-
fully challenges the application of an occupa-
tional licensing law of the State by— 
(i) raising an affirmative defense 
under subparagraph (B); or 
(ii) bringing an action under subpara-
graph (C); and 
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(E) provide for independent judicial review 
of the occupational licensing laws of the State 
to ensure that the standard set forth in sub-
paragraph (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 occupa-
tional 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 sub-
section (b) shall be construed to require legislation enacted 
by a State under subsection (a)(3) to provide a right to 
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H3446
SSpencer on DSKBBV9HB2PROD with BILLS
recover monetary damages, other than reasonable costs 
and attorney fees as provided under subsection (b)(1)(D). 
Æ 
VerDate Sep 11 2014 
03:58 Aug 08, 2017
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Frm 00024
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E:\BILLS\H3446.IH
H3446
SSpencer on DSKBBV9HB2PROD with BILLS