II 114th CONGRESS 2d Session S. 3158 IN THE SENATE OF THE UNITED STATES July 12, 2016 Mr. Lee (for himself and Mr. Sasse ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To promote economic opportunity for military families, to facilitate workforce attachment for military spouses in their chosen occupation across multiple geographical postings, to reduce barriers to work on military installations, to amend the District of Columbia Code to promote greater freedom in the practice of regulated occupations, to combat abuse of occupational licensing laws by economic incumbents, to promote competition, encourage innovation, protect consumers, and promote compliance with Federal antitrust law, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Alternatives to Licensing that Lower Obstacles to Work Act of 2016 or the ALLOW Act . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Military installations Sec. 101. Endorsement of occupational licenses and certifications issued by States for purposes of activities on military installations. TITLE II—District of Columbia occupational licensing reform Sec. 201. Short title. Sec. 202. Statement of findings and purpose. Sec. 203. Definitions. Sec. 204. Policy regarding occupational licensure. Sec. 205. Office of Supervision of Occupational Boards. Sec. 206. Periodic analysis of occupational regulations. Sec. 207. Freedom to engage in an occupation. Sec. 208. Affirmative defense. TITLE III—Tour guide services in national military parks, national battlefields, national battlefield parks, national battlefield sites, and the National Mall and Memorial Parks Sec. 301. Tour guide services. I Military installations 101. Endorsement of occupational licenses and certifications issued by States for purposes of activities on military installations (a) In general For the purpose of establishing an individual’s authorization to engage in an occupation on a military installation located on land owned by the Federal Government, the Federal Government endorses occupational licenses and certifications granted by any State, regardless of whether the military installation is located in the issuing State, provided that— (1) the license or certification is not expired, revoked, or suspended by the issuing State; and (2) there are no outstanding enforcement actions against the individual brought by the licensing board or certifying authority for that occupation in the issuing State. (b) Scope of practice An individual relying on subsection (a) for authorization to engage in an occupation is authorized to sell the same goods and services as are covered by the occupational license or certification in the issuing State. (c) State defined In this section, the term State includes the District of Columbia. II District of Columbia occupational licensing reform 201. Short title This title may be cited as the District of Columbia Occupational Licensing Reform Act . 202. 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 or safety 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 has resulted in significant costs to consumers and the broader economy. (7) By appropriately limiting occupational licensing in the District of Columbia, Congress intends to promote economic opportunity in the District. (8) By promoting economic opportunity in the District of Columbia through the reform of occupational regulations, Congress intends to provide a basic reform model that the States may follow. 203. Definitions (a) In general In this title: (1) Attorney general The term Attorney General means the Attorney General for the District of Columbia. (2) Certification The term certification means a voluntary program under which— (A) a private organization or the government grants nontransferable recognition to an individual who meets personal qualifications established by the private organization or the government; (B) upon approval, an individual described in subparagraph (A) may use certified as a designated title; and (C) a noncertified individual may perform the lawful occupation for compensation but may not use the title certified . (3) Council The term Council means the Council of the District of Columbia. (4) Covered board The term covered board means an occupational licensing board in the District of Columbia. (5) 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 illegal to sell regardless of whether the individual selling the goods or services is subject to an occupational regulation. (6) Least restrictive regulation The term least restrictive regulation means, from least to most restrictive— (A) market competition; (B) industry or consumer-created ratings and reviews; (C) private certification; (D) a specific private civil cause of action to remedy consumer harm; (E) a deceptive trade practice act; (F) a regulation of the process of providing the specific goods or services to consumers; (G) inspection; (H) bonding or insurance; (I) registration; (J) government certification; (K) specialty occupational license for medical reimbursement; and (L) occupational license. (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 District of Columbia government. (8) Specialty occupational license for medical reimbursement The term specialty occupational license for medical reimbursement means a nontransferable authorization in law for an individual to provide identified medical services and qualify for payment or reimbursement from a government agency based on meeting personal qualifications established by the government. (9) Occupational regulation The term occupational regulation — (A) means a statute, rule, practice, policy, or other law requiring an individual to possess certain personal qualifications to use an occupational title or 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 law regulates an individual’s personal qualifications to perform a lawful occupation. (10) 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. (11) Registration (A) In general The term registration means a requirement that an individual give notice to the District of Columbia government that— (i) may include— (I) the individual’s name and address; (II) the individual’s agent for service of process; (III) the location of the activity to be performed; and (IV) a description of the service the individual provides; (ii) does not include personal qualifications; and (iii) may require a bond or insurance. (B) Use of title (i) Registered individuals Upon the receipt of notice described in subparagraph (A) by the District of Columbia government from an individual, the individual may use registered as a designated title. (ii) Nonregistered individuals A nonregistered individual may not perform the occupation for compensation or use registered as a designated title. (12) Superior court The term Superior Court means the Superior Court of the District of Columbia. (b) Rules relating to use and construction of terms (1) Certification and registration As used in this title, the terms certification and registration shall not be construed to be synonymous with the term occupational license , notwithstanding their use in other provisions of the law of the District of Columbia. (2) Relation to other provisions of law The use of the terms certification , certified , registration , and registered in other provisions of the law of the District of Columbia to mean an individual is required to meet certain personal qualifications to work legally shall be construed for the purposes of this title as requiring an individual to meet the requirements of an occupational license. 204. Policy regarding occupational licensure It is the policy of the District of Columbia that— (1) occupational licensing laws should be construed and applied to increase economic opportunity, promote competition, and encourage innovation; (2) regulators should displace competition through occupational licensing only where less restrictive regulation will not suffice to protect consumers from present, significant, and substantiated harms that threaten public health, safety, or welfare; and (3) an occupational licensing restriction should be enforced against an individual only to the extent the individual sells goods and services that are included explicitly in the statute or Municipal Regulation that defines the occupation’s scope of practice. 205. Office of Supervision of Occupational Boards (a) Establishment (1) In general There shall be established an Office of Supervision of Occupational Boards (referred to in this section as the Office ) in— (A) the office of the Attorney General; or (B) another appropriate agency of the District of Columbia government. (2) Rule of construction For the purposes of this title, if individual Offices are established within multiple agencies, the term Office shall be construed to refer to both the singular and the plural. (b) Active supervision (1) In general The Office shall be responsible for exercising active supervision over each covered board to ensure compliance with the policies under section 204. (2) Duties In exercising active supervision over covered boards under paragraph (1), the Office shall independently— (A) 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; (B) disapprove the use of any board rule or policy and terminate any enforcement action, including any such action pending on the date of enactment of this Act, that is inconsistent with section 204; (C) exercise control over each board by reviewing and affirmatively approving only rules, policies, and enforcement actions that are consistent with section 204; and (D) use the analysis conducted under section 206 and conduct reasonable investigations to gain additional information, including about less restrictive regulatory approaches, to promote compliance with section 204. (3) Independence In exercising active supervision over covered boards under paragraph (1), the Office shall be staffed by not less than 1 attorney who does not provide general counsel to any board. (c) Review and approval of proposed regulatory actions (1) In general The Office shall review and approve or reject any rule, policy, enforcement action, or other occupational licensure action proposed by each covered board before the board may adopt or implement the rule, policy, enforcement action, or other occupational licensure action. (2) Explicit approval required For purposes of paragraph (1)— (A) approval by the Office shall be required to be explicit; and (B) silence or failure to act shall not constitute approval. (d) Complaints (1) Right to file complaint A person who is a resident of or has a license to operate a business in the District of Columbia may file a complaint to the Office about a rule, policy, enforcement action, or other occupational licensure action of a covered board that the person believes is inconsistent with section 204. (2) Response Not later than 90 days after the date on which the Office receives a complaint filed under paragraph (1), the Office shall— (A) investigate the complaint; (B) identify remedies and instruct the board to take action, where appropriate; and (C) respond in writing to the complainant. (3) Appeal (A) In general There shall be no right to appeal a decision of the Office under paragraph (2) unless— (i) the challenged rule, policy, enforcement action, or other occupational licensure action would prevent the complainant from— (I) engaging in a lawful occupation; or (II) employing or contracting others for the performance of a lawful occupation; and (ii) the complainant has taken material steps in an attempt to take an action described in subclause (I) or (II) of clause (i). (B) Superior Court Any appeal authorized under subparagraph (A) shall be to the Superior Court. (e) Review by Attorney General (1) Right to request review Any member of the Council may request that the Attorney General review— (A) a rule, policy, enforcement action, or other occupational licensure action of a covered board that the member believes is inconsistent with section 204; (B) the active supervision of a covered board by the Office; or (C) the response of the Office to a complaint under subsection (d). (2) Response Not later than 180 days after the date on which the Attorney General receives a request under paragraph (1), the Attorney General shall— (A) investigate the activity requested to be reviewed; (B) identify remedies and instruct the covered board to take action, where appropriate; and (C) respond in writing to the requesting member. 206. Periodic analysis of occupational regulations (a) Establishment of committee The Chairman of the Council shall establish a legislative committee or subcommittee composed exclusively of current Council members to analyze occupational regulations (in this section referred to as the committee ). (b) Duties (1) In general The committee shall be responsible for reviewing proposed legislation to impose or modify an occupational regulation to ensure compliance with the policies under section 204. (2) Specific duties In reviewing proposed legislation under paragraph (1), the committee— (A) may require— (i) the proponents of the legislation to submit evidence of present, significant, and substantiated harms to consumers in the District; and (ii) information from other persons knowledgeable about the applicable occupation, labor economics, or other relevant factors; (B) shall determine whether the legislation satisfies the policy under section 204(2) of using the least restrictive regulation necessary to protect consumers from present, significant, and substantiated harms that threaten public health, safety, or welfare; (C) shall evaluate the effects of the legislation on opportunities for workers, consumer choices and costs, general unemployment, market competition, governmental costs, and other effects; (D) shall compare the legislation to whether and how other jurisdictions regulate the applicable occupation; and (E) shall issue a report to the Council assessing and proposing modifications, if any, to the legislation on a timely basis. (3) Required vote by council The Council may not enact legislation to impose or modify an occupational regulation before the Council has specifically voted to adopt or reject any modification to the regulation proposed by the committee under paragraph (2). (c) Annual review (1) In general Beginning on January 1, 2018, the committee shall conduct an annual review of the regulations of approximately 20 percent of the occupations subject to regulation within the District of Columbia to improve compliance with this title. (2) Full review During the 5-year period beginning on January 1, 2018, and during each 5-year period thereafter, the committee shall review all occupational regulations within the District of Columbia. (3) Information In carrying out the review under this subsection, the committee may require information from a covered board, the members of a covered board, and other persons. (d) Report Beginning on January 1, 2019, the committee shall submit to the Chairman of the Council and the Attorney General an annual report on the findings of the reviews carried out under subsection (c) that includes suggested changes to occupational regulations to improve compliance with this title. 207. Freedom to engage in an occupation (a) In general An individual may engage in a lawful occupation without being subject to occupational regulations that are— (1) arbitrary; or (2) unnecessary and substantially burdensome. (b) Prohibition The District of Columbia and any covered board within the District may not require an occupational license, certification, or registration for a person, or impose any other occupational regulation that imposes a substantial burden on a person, unless the District government demonstrates that— (1) the government has an important interest in protecting against present and recognizable harm to public health, safety, or welfare; and (2) the regulation is substantially related to achievement of the important government interest described in paragraph (1). (c) Limitation Nothing in this section shall be construed to— (1) create a right of action against the District government or a private party; or (2) require the District government or a private party to do business with an individual who is not licensed by, certified by, or registered with the District government. 208. Affirmative defense (a) Right To assert defense (1) In general An individual may assert as a defense in any administrative or judicial proceeding to enforce an occupational regulation that the standard required under section 207 has not been met. (2) Initial burden of proof An individual who asserts a defense under this section has the initial burden of proof that the occupational regulation being enforced substantially burdens the individual’s right to engage in a lawful occupation. (3) Government’s burden of proof If an individual meets the burden of proof under paragraph (2), the District of Columbia government shall be required to demonstrate by clear and convincing evidence that— (A) the occupational regulation in question advances an important government interest in protecting against real, substantial threats to public health, safety, or welfare; and (B) the regulation is substantially related to achievement of the important government interest described in subparagraph (A). (b) Superior court (1) In general The Superior Court shall liberally construe this title to protect the right established under section 207. (2) Requirements In reviewing an alleged violation of the right established under section 207, the Superior Court— (A) shall make its own findings of fact and conclusions of law; (B) may not rely on legislative findings of fact presented in admissible form to the Superior Court; and (C) may not grant any presumption to legislative determinations— (i) of harm to public health, safety, or welfare; or (ii) that the occupational regulation in question is substantially related to achievement of the important government interest described in subsection (a)(3)(A). III Tour guide services in national military parks, national battlefields, national battlefield parks, national battlefield sites, and the National Mall and Memorial Parks 301. Tour guide services (a) In general Chapter 1033 of title 54, United States Code, is amended by adding at the end the following: 103307. Tour guide services (a) In general A person providing tour guide services for a fee within a national military park, national battlefield, national battlefield park, or national battlefield site or outdoor portions of the National Mall and Memorial Parks, including the Lincoln Memorial and the Jefferson Memorial, shall not be required to obtain a license, certification, or permit of any kind to provide the services. (b) Application of certain restrictions In imposing any restriction on the scope, duration, and manner of access to or within the boundary of an area described in subsection (a) for the purposes of providing tour guide services, the Secretary shall ensure that the restrictions apply equally to all persons providing, or attempting to provide, tour guide services, without regard to employment by, or a contractual relationship with, the Service. . (b) Clerical amendment The table of sections for chapter 1033 of title 54, United States Code, is amended by inserting after the item relating to section 103306 the following: 103307. Tour guide services. .