[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3158 Introduced in Senate (IS)]
<DOC>
114th CONGRESS
2d Session
S. 3158
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.
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 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.
TITLE I--MILITARY INSTALLATIONS
SEC. 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.
TITLE II--DISTRICT OF COLUMBIA OCCUPATIONAL LICENSING REFORM
SEC. 201. SHORT TITLE.
This title may be cited as the ``District of Columbia Occupational
Licensing Reform Act''.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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).
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.
(a) In General.--Chapter 1033 of title 54, United States Code, is
amended by adding at the end the following:
``Sec. 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.''.
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