[Congressional Record Volume 164, Number 169 (Thursday, October 11, 2018)]
[Senate]
[Page S6820]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN:
  S. 3598. A bill to limit private antitrust damages against 
occupational licensing boards, to promote beneficial reforms of State 
occupational licensing, and for other purposes; to the Committee on the 
Judiciary.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3598

       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).
                                 ______