N.Y. Agric. & Mkts. Law § 258-aa

§ 258-aa. Declaration of policy. (a) It is hereby declared that the\ndairy industry is a paramount agricultural industry of this state, and\nis an industry affecting the health and welfare of the inhabitants of\nthe state; that the continued existence of the dairy industry and the\ncontinued production of milk on the farms of this state is of vast\neconomic importance to the state and to the health and welfare of the\ninhabitants thereof; that it is essential, in order to assure such\ncontinued production of milk and its handling and distribution, that\nprices to producers be such as to return reasonable costs of production,\nand at the same time assure an adequate supply of milk and dairy\nproducts to consumers at reasonable prices; and to these ends it is\nessential that consumers and others be adequately informed as to the\ndietary needs and advantages of milk and dairy products and as to the\neconomies resulting from the use of milk and dairy products, and to\ncommand for milk and dairy products, consumer attention and demand\nconsistent with their importance and value. It is further declared that\ncontinued decline in the consumption of fluid milk and some other dairy\nproducts will jeopardize the production of adequate supplies of milk and\ndairy products because of increasing surpluses necessarily returning\nless to producers; and that continued adequate supplies of milk and\ndairy products is a matter of vital concern as affecting the health and\ngeneral welfare of the people of this state. It is therefore declared to\nbe the legislative intent and policy of the state:\n (1) To enable milk producers and others in the dairy industry, with\nthe aid of the state, to more effectively promote the consumption of\nmilk and dairy products,\n (2) To provide methods and means for the development of new and\nimproved dairy products, and to promote their use, and\n (3) To this end, eliminate the possible impairment of the purchasing\npower of the milk producers of this state and to assure an adequate\nsupply of milk for consumers at reasonable prices.\n (b) Definitions. As used in this act the following terms shall have\nthe following meanings:\n (1) "Commissioner" means the commissioner of agriculture and markets\nof the state of New York.\n (2) "Dairy products" means milk and products derived therefrom, and\nproducts of which milk or a portion thereof is a significant part.\n (3) "Producer" means any person in this state who is engaged in the\nproduction of milk or who causes milk to be produced for any market in\nthis or any other state.\n (4) "Advisory board" means the persons appointed by the commissioner\nfrom nominations from producers as herein defined to assist the\ncommissioner in administering a dairy promotion order.\n (5) "Milk dealer" means any person who purchases or handles or\nreceives or sells milk, including individuals, partnerships,\ncorporations, cooperative associations, and unincorporated cooperative\nassociations.\n (6) "Dairy promotion order" means an order issued by the commissioner,\npursuant to the provisions of this act.\n (7) "Cooperative" means an association or federation or cooperative of\nmilk producers organized under the laws of New York state, or any other\nstate, having agreements with their producer members to market, bargain\nfor or sell the milk of such producers, and is actually performing one\nor more of these services in the marketing of the milk produced by their\nmembers, through the cooperative or through a federation of milk\ncooperatives in which the cooperative has membership.\n (c) Powers and duties of the commissioner.\n (1) The commissioner shall administer and enforce the provisions of\nthis act, and shall have and may exercise any or all the administrative\npowers conferred upon the head of a department. In order to effectuate\nthe declared policy of this act the commissioner may, after due notice\nand hearing, make and issue a dairy promotion order, or orders.\n (2) Such order or orders shall be issued and amended or terminated in\naccordance with the following procedures:\n (a) Before any such order may become effective it must be approved by\nfifty-one per centum of the producers of milk voting in the referendum\nfor the area to be regulated by such order. Such referendum shall not\nconstitute valid approval unless fifty-one per centum of all milk\nproducers for the area to be regulated vote in the referendum. Producers\nmay vote by individual ballot or through their cooperatives in\naccordance with the following procedures:\n (i) Cooperatives may submit written approval of such order within a\nperiod of one hundred twenty days after the commissioner has announced a\nreferendum on a proposed order, for such producers who are listed and\ncertified to the commissioner as members of such cooperative, provided,\nhowever, that any cooperative before submitting such written approval\nshall give at least sixty days prior written notice to each producer who\nis its member, of the intention of the cooperative to approve such\nproposed order, and further provide that if such cooperative does not\nintend to approve such proposed order, it shall likewise give written\nnotice to each such producer who is its member, of its intention not to\napprove of such proposed order.\n (ii) Any producer may obtain a ballot from the commissioner so that he\nmay register his own approval or disapproval of the proposed order.\n (iii) A producer who is a member of a cooperative which has notified\nhim of its intent to approve or not to approve of a proposed order, and\nwho obtains a ballot and with such ballot expresses his approval or\ndisapproval of the proposed order, shall notify the commissioner as to\nthe name of the cooperative of which he is a member, and the\ncommissioner shall remove such producer's name from the list certified\nby such cooperative.\n (iv) In order to insure that all milk producers are informed regarding\na proposed order, the commissioner shall notify all milk producers that\nan order is being considered and that each producer may register his\napproval or disapproval with the commissioner either directly or through\nhis cooperative.\n (v) The commissioner may appoint a referendum advisory committee to\nassist and advise him in the conduct of the referendum. Such committee\nshall review referendum procedures and the tabulation of results, and\nshall advise the commissioner of its findings. The final certification\nof the referendum results shall be made by the commissioner. The\ncommittee shall consist of not less than three members, none of whom\nshall be persons directly affected by the promotion order being voted\nupon. Two members shall be representatives of general farm organizations\nwhich are not directly affected by the order being voted upon. The\nmembers of the committee shall not receive a salary but shall be\nentitled to actual and reasonable expenses incurred in the performance\nof their duties.\n (b) The commissioner may, and upon written petition of not less than\nten per centum of the producers in the area, either as individuals or\nthrough cooperative representation, shall, call a hearing to amend or\nterminate such order, and any such amendment or termination shall be\neffective only upon approval of fifty-one per centum of the producers of\nmilk for the area regulated participating in a referendum vote as\nprovided pursuant to paragraph two of subdivision (c) of this section.\n (3) The commissioner shall administer and enforce any such dairy\npromotion order while it is in effect, for the purpose of:\n (a) Encouraging the consumption of milk and dairy products by\nacquainting consumers and others with the advantages and economy of\nusing more of such products,\n (b) Protecting the health and welfare of consumers by assuring an\nadequate supply of milk and dairy products,\n (c) Providing for research programs designed to develop new and\nimproved dairy products,\n (d) Providing for research programs designed to acquaint consumers and\nthe public generally with the effects of the use of milk and dairy\nproducts on the health of such consumers,\n (e) Carrying out, in other ways, the declared policy and intent of\nthis act.\n (d) Provisions of dairy promotion orders. Any dairy promotion order or\norders may contain, among others, any or all of the following:\n (1) Provision for levying an assessment against all producers subject\nto the regulation for the purpose of carrying out the provisions of such\norder and to pay the cost of administering and enforcing such order. In\norder to collect any such assessments, provision shall be made for each\nmilk dealer who receives milk from producers to deduct the amount of\nassessment from moneys otherwise due to producers for the milk so\ndelivered. The rate of such assessment shall not exceed two per cent per\nhundredweight of the gross value of the producers milk, and there may be\ncredited against any such assessment the amounts per hundredweight\notherwise paid by any producer covered by the order by voluntary\ncontribution or otherwise pursuant to any other federal or state milk\nmarket order for any similar research promotion or advertising program.\nNotwithstanding the provisions of paragraph two of subdivision (c) of\nthis section, the commissioner, upon written petition of no less than\ntwenty-five per cent of producers in the area, either as individuals or\nthrough cooperative representation, may call a hearing for the sole\npurpose of establishing a new rate of assessment hereunder and may\nsubmit a proposed change in the rate of assessment to the producers for\nacceptance or rejection without otherwise affecting the order. The\nproducers in the area may vote on the proposed rate either as\nindividuals or through cooperative representation. Notwithstanding the\nforegoing provisions of this paragraph and of paragraph two of\nsubdivision (c) of this section, or the provisions of any order\npromulgated pursuant to this section, the rate of assessment, for any\nperiod during which a dairy products promotion and research order\nestablished pursuant to the federal dairy and tobacco adjustment act of\n1983 is in effect, shall not be less than an amount equal to the maximum\ncredit which producers participating in this state's dairy products\npromotion or nutrition education programs may receive pursuant to\nsubdivision (g) of Sec. 113 of said federal act.\n (2) Provision for payments to organizations engaged in campaigns by\nadvertisements or otherwise, including participation in similar regional\nor national plans or campaigns to promote the increased consumption of\nmilk and dairy products, to acquaint the public with the dietary\nadvantages of milk and dairy products and with the economy of their\ninclusion in the diet and to command, for milk and dairy products,\nconsumer attention consistent with their importance and value.\n (3) Provision for payments to institutions or organizations engaged in\nresearch leading to the development of new or improved dairy products or\nresearch with respect to the value of milk and dairy products in the\nhuman diet.\n (4) Provision for requiring records to be kept and reports to be filed\nby milk dealers with respect to milk received from producers and with\nrespect to assessments on the milk of such producers.\n (5) Provision for the auditing of the records of such milk dealers for\nthe purpose of verifying payment of producer assessments.\n (6) Provision for an advisory board as hereinafter indicated.\n (7) Such other provisions as may be necessary to effectuate the\ndeclared policies of the act.\n (e) Matters to be considered. In carrying out the provisions of this\nact and particularly in determining whether or not a dairy promotion\norder shall be issued, the commissioner shall take into consideration,\namong others, facts available to him with respect to the following:\n (1) The total production of milk in the area and the proportion of\nsuch milk being utilized in fluid form and in other products,\n (2) The prices being received for milk by producers in the area,\n (3) The level of consumption per capita for fluid milk and of other\ndairy products,\n (4) The purchasing power of consumers,\n (5) Other products which compete with milk and dairy products and\nprices of such products.\n (f) Interstate orders for compacts. The commissioner is authorized to\nconfer and cooperate with the legally constituted authorities of other\nstates and of the United States with respect to the issuance and\noperation of joint and concurrent dairy promotion orders or other\nactivities tending to carry out the declared intent of the act. He may\njoin with such other authorities in conducting joint investigations,\nholding joint hearings and issuing joint or concurrent order or orders\ncomplementary to those of the federal government and shall have the\nauthority to employ or designate a joint agent or joint agencies to\ncarry out and enforce such joint, concurrent or supplementary orders.\n (g) Prior assessments. Prior to the effective date of any dairy\npromotion order as provided in this act, the commissioner may require\nthat cooperative associations which have petitioned for such an order\nand who have approved of the issuance of such an order, to deposit with\nthe commissioner such amounts as he may deem necessary to defray the\nexpense of administering and enforcing such order until such time as the\nassessments as herein before provided are adequate for that purpose.\nSuch funds shall be received, deposited and disbursed by the\ncommissioner in the same manner as other funds received by him pursuant\nto this article and the commissioner shall reimburse those who paid\nthese prior assessments from other funds received by him pursuant to\nthis article.\n (h) Status of funds. Any moneys collected under any market order\nissued pursuant to this article shall not be deemed to be state funds\nand shall be deposited in a bank or other depository in this state,\napproved by the commissioner and the state comptroller, allocated to\neach dairy promotion order under which they were collected, and shall be\ndisbursed by the commissioner only for the necessary expenses incurred\nby the commissioner with respect to each separate order, all in\naccordance with the rules and regulations of the commissioner. All such\nexpenses shall be audited by the state comptroller at least annually and\nwithin thirty days after the completion thereof the state comptroller\nshall give a copy thereof to the commissioner. Any moneys remaining in\nsuch fund allocable to a particular order, after the termination of such\norder and not required by the commissioner to defray the expenses of\noperating such order, may in the discretion of the commissioner be\nrefunded on a pro-rata basis to all persons from whom assessments\ntherefor were collected; provided, however, that if the commissioner\nfinds that the amounts so refundable are so small as to make\nimpracticable the computation and refunding of such moneys, the\ncommissioner may use such moneys to defray the expenses incurred by him\nin the promulgation, issuance, administration or enforcement of any\nother similar dairy promotion order or in the absence of any other such\ndairy promotion order, the commissioner may pay such moneys to any\norganization or institution as provided in paragraphs (2) or (3) of\nsubdivision (d) of this section.\n (i) Budget. The commissioner shall prepare a budget for the\nadministration and operating costs and expenses including advertising\nand sales promotion when required in any dairy promotion order executed\nhereunder and to provide for the collection of such necessary fees or\nassessments to defray costs and expenses, in no case to exceed two per\ncent per hundredweight of the gross value of milk marketed by producers\nin the area covered by the order.\n (j) Advisory board.\n (1) Any dairy promotion order issued pursuant to this article shall\nprovide for the establishment of an advisory board to advise and assist\nthe commissioner in the administration of such order. This board shall\nconsist of not less than five members and shall be appointed by the\ncommissioner from nominations submitted by producers marketing milk in\nthe area to which the order applies. Nominating procedure,\nqualification, representation, and size of the advisory board shall be\nprescribed in the order for which such board was appointed.\n (2) No member of an advisory board shall receive a salary but shall be\nentitled to his actual and reasonable expenses incurred while performing\nhis duties as authorized herein.\n (3) The duties and responsibilities of the advisory board shall be\nprescribed by the commissioner and he may specifically delegate to the\nadvisory board, by inclusion in the dairy promotion order, all or any of\nthe following duties and responsibilities:\n (a) The recommendation to the commissioner of administrative rules and\nregulations relating to the order.\n (b) Recommending to the commissioner such amendments to the order as\nseem advisible.\n (c) The preparation and submission to the commissioner of an estimated\nbudget required for the proper operation of the order.\n (d) Recommending to the commissioner methods for assessing producers\nand methods for collecting the necessary funds.\n (e) Assisting the commissioner in the collection and assembly of\ninformation and data necessary for the proper administration of the\norder.\n (f) The performance of such other duties in connection with the order\nas the commissioner shall designate.\n (k) Rules and regulations enforcement.\n (1) Rules and regulations. The commissioner may, with the advice and\nassistance of the advisory board, make and issue such rules and\nregulations as may be necessary to effectuate the provisions and intent\nof this article and to enforce the provisions of any dairy promotion\norder, all of which shall have the force and effect of law.\n (2) Enforcement. The commissioner may institute such action at law or\nin equity as may appear necessary to enforce compliance with any\nprovision of this article, or any rule or regulation, or dairy promotion\norder committed to his administration, and in addition to any other\nremedy under article three of this chapter or otherwise, may apply for\nrelief by injunction if necessary to protect the public interest without\nbeing compelled to allege or prove that an adequate remedy at law does\nnot exist. Such application shall be made to the supreme court in any\ndistrict or county provided in the civil practice law or rules, or to\nthe supreme court in the third judicial district.\n