§ 201.304 - Undue prejudices or disadvantages and unjust discriminatory practices.

§ 201.304 Undue prejudices or disadvantages and unjust discriminatory practices.

(a) Prohibited bases.

(1) Except as provided in paragraph (a)(3) of this section, a regulated entity may not prejudice, disadvantage, inhibit market access, or otherwise take an adverse action against a covered producer with respect to livestock, meats, meat food products, livestock products in unmanufactured form, or live poultry based upon the following characteristics:

(i) On the basis of the covered producer's race, color, religion, national origin, sex (including sexual orientation and gender identity), disability, marital status, or age.

(ii) On the basis of the covered producer's status as a cooperative.

(2) Actions that prejudice, disadvantage, inhibit market access, or are otherwise adverse under paragraph (a)(1) of this section are as follows:

(i) Offering contract terms that are less favorable than those generally or ordinarily offered to similarly situated covered producers.

(ii) Refusing to deal with a covered producer on terms generally or ordinarily offered to similarly situated covered producers.

(iii) Performing under or enforcing a contract differently than with similarly situated covered producers.

(iv) Requiring a contract modification or renewal on terms less favorable than similarly situated covered producers.

(v) Terminating or not renewing a contract.

(vi) Any other action that a reasonable covered producer would find materially adverse.

(3) The following actions by a regulated entity do not prejudice, disadvantage, inhibit market access, or constitute adverse action under paragraph (a)(1) of this section:

(i) Fulfilling a religious commitment relating to livestock, meats, meat food products, livestock products in unmanufactured form, or live poultry.

(ii) A Federally recognized Tribe, including its wholly or majority-owned entities, corporations, or Tribal organizations, performing its Tribal governmental functions.

(b) Retaliation prohibited.

(1) A regulated entity may not retaliate or otherwise take an adverse action against a covered producer based upon the covered producer's participation in an activity described in paragraph (b)(2) of this section.

(2) The following activities by covered producers are protected under paragraph (b)(1) of this section unless otherwise prohibited by Federal, Tribal, or State law, including antitrust laws:

(i) Communicating with a government entity or official or petitioning a government entity or official for redress of grievances with respect to livestock, meats, meat food products, livestock products in unmanufactured form, or live poultry.

(ii) Refusing a request of the regulated entity to engage in a communication with a government entity or official that is not required by law.

(iii) Asserting the right to form or join, or to refuse to form or join, a producer or grower association or organization, or cooperative or to collectively process, prepare for market, handle, or market livestock or poultry.

(iv) Communicating or cooperating with a person for the purposes of improving production or marketing of livestock or poultry.

(v) Communicating, negotiating, or contracting with a regulated entity, another covered producer, or with a commercial entity or consultant, for the purpose of exploring or entering into a business relationship.

(vi) Supporting or participating as a witness in any proceeding under the Act, or any proceeding that relates to an alleged violation of any law by a regulated entity.

(vii) Asserting any of the rights granted under Act or this part, or asserting contract rights.

(3) The following actions are considered retaliation or an otherwise adverse action under paragraph (b)(1) of this section:

(i) Terminating or not renewing a contract.

(ii) Performing under or enforcing a contract differently than with similarly situated covered producers.

(iii) Requiring a contract modification or a renewal on terms less favorable than similarly situated covered producers.

(iv) Refusing to deal with a covered producer on terms generally or ordinarily offered to similarly situated covered producers.

(v) Interfering in a farm real estate transaction or a contract with third parties.

(vi) Any other action that a reasonable covered producer would find materially adverse.

(c) Recordkeeping of compliance practices.

(1) The regulated entity shall retain all records relevant to its compliance with paragraphs (a) and (b) of this section for no less than 5 years from the date of record creation.

(2) Relevant records to paragraph (c)(1) of this section may include: policies and procedures, staff training materials, materials informing covered producers regarding reporting mechanisms and protections, compliance testing, board of directors' oversight materials, and the number and nature of complaints received relevant to this section.