This chapter is adopted in response to the U.S. Supreme Court’s decision in North Carolina Board of Dental Examiners v. Federal Trade Commission. The purpose of this chapter is to provide for active supervision of certain units within the Department to: Prevent unreasonable anticompetitive actions; and Ensure that anticompetitive actions are consistent with affirmatively expressed and clearly articulated State policies to displace competition. In this chapter, the following terms have the meanings indicated. Terms Defined. “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. The Secretary is responsible for supervising each unit within the Department that is composed in whole or in part of individuals participating in the occupation or profession regulated by the unit to: 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). For purposes of the Secretary’s responsibilities under this chapter, the following types of decisions and actions of a unit generally are not unreasonable anticompetitive actions by the unit: 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). For purposes of the Secretary’s responsibilities under this chapter, the types of decisions and actions for which anticompetitive consequences should be evaluated, include, but are not limited to: 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. Each Assistant Secretary at the Department is designated as responsible for supervising each unit in the Assistant Secretary’s section that is composed in whole or in part of individuals participating in the occupation or profession regulated by the unit to: 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. Each Assistant Secretary is responsible for keeping fully informed of all proposed anticompetitive actions and decisions of any unit subject to this chapter by consulting with both the unit’s Executive Director and legal advisor from the Office of the Attorney General. If the Secretary or the Secretary’s designee finds that a proposed decision or action of the unit with anticompetitive effect may result in an unreasonable restraint on competition or may not further a clearly articulated State policy to displace competition in the regulated marketplace, the Secretary or the Secretary’s designee shall: 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 final decision is issued; or The proposed action is implemented. 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. The Secretary or the Secretary’s designee may not approve an anticompetitive decision or action of a unit that does not further a clearly articulated State policy to displace competition in the regulated market. Upon notice to the unit by the Secretary or the Secretary’s designee as provided in Regulation .04C of this chapter, a unit may not make any decision or take any action on any proposal. A decision or action of a unit may not constitute a final decision or action of the unit until after the Secretary or the Secretary’s designee has conducted the review required under Regulation .04C of this chapter. The final decision or action of a unit shall comply with the written decision of the Secretary or the Secretary’s designee issued in accordance with Regulation .04C of this chapter. State Government Article, §8-205.1, Annotated Code of Maryland Effective date: June 4, 2018 (45:11 Md. R. 579)