[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3598 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 3598

   To limit private antitrust damages against occupational licensing 
boards, to promote beneficial reforms of State occupational licensing, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 11, 2018

  Mr. Cornyn introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To limit private antitrust damages against occupational licensing 
boards, to promote beneficial reforms of State occupational licensing, 
                        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 ``Occupational Licensing Board 
Antitrust Damages Relief and Reform Act of 2018''.

SEC. 2. 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 noncertified individual may perform the 
                lawful occupation for compensation but may not use the 
                title ``certified''.
            (2) Member, officer, employee, or agent.--The term 
        ``member, officer, employee, or agent'', with respect to an 
        occupational licensing board, means an individual appointed by, 
        to, or employed by the occupational licensing board.
            (3) 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.
            (4) 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; and
                    (B) that has authority conferred by State law to 
                interpret or enforce the occupational regulations of 
                the State.
            (5) Occupational regulation.--The term ``occupational 
        regulation''--
                    (A) means a statute, rule, regulation, practice, 
                policy, or law that sets educational, examination, 
                training and/or experience requirements to authorize an 
                individual to work in a lawful occupation;
                    (B) includes any statute, rule, regulation, 
                practice, policy, or law requiring 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.
            (6) Widely regulated occupation.--The term ``widely 
        regulated occupation'' means an occupation in which forty (40) 
        or more States require an occupational license to engage in 
        such occupation.
            (7) State.--The term ``State'' means each of the several 
        States, the District of Columbia, and any territory or 
        possession of the United States.

SEC. 3. PRIVATE ANTITRUST DAMAGES.

    (a) In General.--No damages, or interest on damages, may be 
recovered under section 4, 4A or 4C of the Clayton Act (15 U.S.C. 15, 
15a, or 15c) by any person, except for any State, instrumentality of a 
State, or employee of a State or instrumentality of a State acting in 
his or her official capacity, from an occupational licensing board, or 
any member, officer, employee, or agent of a board, acting in their 
official capacity, if--
            (1) the State--
                    (A) has enacted a law requiring an occupational 
                license to practice the lawful occupation regulated by 
                the occupational licensing board;
                    (B) has set forth criteria outlining any personal 
                qualifications necessary to obtain an occupational 
                license and has required that licensees adhere to 
                standards of practice and ethical standards in the 
                performance of regulated lawful occupations; and
                    (C) has found that--
                            (i) the public needs, and can be reasonably 
                        expected to benefit from, occupational 
                        licensing of the lawful occupation; and
                            (ii) the unlicensed conduct of the lawful 
                        occupation would harm or endanger the health, 
                        safety, or welfare of the public;
            (2) an occupation licensed by an occupational licensing 
        board--
                    (A) is a widely regulated occupation; or
                    (B)(i) is not a widely regulated occupation and the 
                State has implemented a periodic sunset review process 
                of the occupational licensing board with regard to that 
                occupation; and (ii) if previously unregulated by the 
                State, the State has implemented a sunrise review 
                process of the occupational licensing board with regard 
                to its regulation of that newly licensed occupation;
            (3) the chief executive, legislature, or other elected 
        officer of the State--
                    (A) has appointed all members of the occupational 
                licensing board; and
                    (B) has required public representation on the 
                occupational licensing board; and
            (4) the State or the occupational licensing board has 
        established a mechanism under which any person aggrieved by an 
        action of the occupational licensing board has the right to--
                    (A) contest such action at a hearing before the 
                occupational licensing board at which the individual 
                may provide evidence, argument, and analysis;
                    (B) review, at a reasonable time before the 
                hearing, all evidence that the occupational licensing 
                board has gathered relating to the contested action;
                    (C) receive a final reasoned decision in writing 
                from the occupational licensing board within a 
                reasonable period after the hearing; and
                    (D) appeal an adverse decision of the occupational 
                licensing board to an independent adjudicator, 
                including judicial review.
    (b) Applicability.--This section shall not apply to any case 
commenced before the date of enactment of this Act, unless it would be 
inequitable not to apply this section to a pending action.
    (c) Rule of Construction.--Nothing in this Act shall be construed 
to modify or impair the applicability or availability of--
            (1) relief pursuant to section 4A or 4C of the Clayton Act 
        (15 U.S.C. 15a, 15c);
            (2) injunctive relief pursuant to section 16 of the Clayton 
        Act (15 U.S.C. 26);
            (3) equitable monetary or injunctive relief pursuant to 
        section 13(b) of the Federal Trade Commission Act (15 U.S.C. 
        53(b)); or
            (4) the ability of any person to recover the cost of the 
        suit, including a reasonable attorney's fee, under section 4 of 
        the Clayton Act (15 U.S.C. 15).
    (d) Savings Clause.--The immunity from damages, or interest on 
damages, that is provided to members, officers, employees, or agents of 
an occupational licensing board of a State under subsection (a) shall 
not apply to any action unrelated to their official capacity, such as 
implementing rules governing minimum prices or fees.

SEC. 4. STATE LICENSING STUDIES TO BE CONDUCTED.

    Not later than 120 days after the date of enactment of this Act, 
the Comptroller General of the United States shall submit to Congress a 
report on--
            (1) how States can best address occupational licensing 
        reform, particularly for those occupations that are not 
        directly related to protecting the health, safety, or welfare 
        of the public, including recommendations on how States can 
        weigh the costs and benefits of occupational licensing against 
        those of less restrictive alternatives, such as certification 
        and other approaches;
            (2) how States can conduct comprehensive cost-benefit 
        assessments of occupational regulations and occupational 
        licensing boards through sunrise reviews and periodic sunset 
        reviews;
            (3) how States can implement policies to support 
        occupational licensing uniformity and occupational license 
        portability, including streamlined licensing portability 
        programs for veterans and military service members and spouses; 
        and
            (4) how occupational licensing requirements affect low-
        income workers, the unemployed, immigrants with work 
        authorizations, and individuals with criminal records.

SEC. 5. RULE OF CONSTRUCTION.

    Except as provided in section 3, nothing in this Act shall be 
construed to modify or impair the applicability or the enforcement of 
the antitrust laws, as defined in the first section of the Clayton Act 
(15 U.S.C. 12).
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