Chapter 13. Supervision and Review of Decisions and Actions of Units Within the Department

Prevent unreasonable anticompetitive actions; and

Ensure that anticompetitive actions are consistent with affirmatively expressed and clearly articulated State policies to displace competition.

“Department” means Maryland Department of Agriculture.

“Secretary” means the Secretary of Agriculture or the Secretary’s designee.

“Secretary’s designee” means the Assistant Secretary who is responsible for actively supervising a unit’s operation.

“Unit” means a regulatory board or commission composed in whole or in part of individuals participating in the occupation or profession regulated by that board or commission.

Prevent unreasonable anticompetitive actions by the unit; and

Determine whether the decisions and actions of the unit with anticompetitive effect further an affirmatively expressed and clearly articulated State policy to displace competition in the unit’s regulated market (as opposed to serving the private interests of the market participant regulators).

Ministerial or nondiscretionary acts undertaken in good faith implementation of the unit’s enabling legislation;

An investigation, charge, or disposition of a disciplinary charge against a single individual subject to the regulatory authority of a unit involving an issue such as standard of care; and

The initiation and prosecution of a lawsuit by a regulatory board unless it falls within the “sham exception.” Professional Real Estate Investors v. Columbia Pictures Industries, 508 U.S. 49 (1993); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).

Decisions or actions governing the scope of a licensed individual’s practice;

Requirements for granting a license;

Pricing regulations;

Restrictions on advertising or soliciting customers;

Territorial allocations;

Restrictions on market participation or actions against nonlicensees;

Restrictions on competitive bidding; and

Patterns of disciplinary action by a unit against similarly situated licensees.

Prevent unreasonable anticompetitive actions by the unit; and

Determine whether an anticompetitive decision or action of the unit furthers a clearly articulated State policy to displace competition in the unit’s regulated market.

Immediately notify the unit not to make a final decision or take the proposed action;

Review the evidentiary record created by the unit, and, if necessary, supplement the evidentiary record of the unit;

Conduct a substantive review of the merits of the unit’s proposed decision or action to consider the anticompetitive consequences of the proposed decision or action as well as any State policy advanced;

Assess whether the unit’s proposed decision or action furthers a clearly articulated State policy to displace competition in the regulated market; and

Issue expeditiously a written decision approving, disapproving, or modifying the proposed decision or action or remanding the proposed decision or action back to the unit for further review before:

A written decision approving an anticompetitive decision or action of a unit shall identify any clearly articulated and affirmatively expressed State policy to displace competition in the regulated market advanced by the proposed decision or action and explain why the decision or action should be approved, notwithstanding the anticompetitive effect.

A written statement disapproving an anticompetitive decision or action shall explain the reasons supporting the decision not to approve the proposed decision or action.