N.Y. Agric. & Mkts. Law § 294

§ 294. Powers and duties of the commissioner. (1) In order to\neffectuate the declared policy of this article, the commissioner may,\nafter due notice and opportunity for hearing, approve marketing\nagreements, which marketing agreements shall thereupon be binding upon\nthe signatories thereto exclusively.\n (2) The commissioner may make and issue marketing orders, after due\nnotice and opportunity for hearing, subject to\n (i) approval of not less than sixty-six and two-thirds per centum of\nthe producers participating in a referendum in the area affected, or\n (ii) approval of not less than sixty-five per centum of the producers\nparticipating in a referendum vote, in the area affected, and having\nmarketed not less than flfty-one per centum of the total quantity of the\ncommodity which was marketed in the next preceding marketing season by\nall producers that voted in the referendum, or\n (iii) approval of not less than fifty-one per centum of the producers\nparticipating in a referendum vote, in the area affected, and having\nmarketed not less than sixty-five per centum of the total quantity of\nthe commodity which was marketed in the next preceding marketing season\nby all producers that voted in the referendum.\n The commissioner may, and upon written petition duly signed by\ntwenty-five per centum of the producers in the area shall amend or\nterminate such order after due notice and opportunity for hearing, but\nsubject to the approval of not less than fifty per centum of such\nproducers participating in a referendum vote.\n The commissioner shall administer and enforce any marketing order,\nwhile it is in effect, to\n (a) Encourage and maintain stable prices received by producers for\nsuch agricultural commodity and aquatic product at a level which is\nconsistent with the provisions and aims of this act.\n (b) Prevent the unreasonable or unnecessary waste of land or water\nbased wealth.\n (c) Protect the interests of consumers of such commodity, by\nexercising the powers of this article to such extent as is necessary to\neffectuate the purposes of this act.\n (d) Prepare a budget for the administration and operating costs and\nexpenses including advertising and sales promotion when required in any\nmarketing agreement or order executed hereunder and to provide for the\ncollection of such necessary fees to defray such costs and expenses, in\nno case to exceed five per cent of the gross dollar volume of sales or\ndollar volume of purchases or amounts handled, to be collected from each\nperson engaged in the production, processing, distributing or the\nhandling of any marketable agricultural commodity and aquatic product\nproduced or landed in this state and directly affected by any marketing\norder issued pursuant to this article for such commodity.\n (e) Confer and cooperate with the legally constituted authorities of\nother states and the United States.\n * (f) Insure the marketing rights of producers, including good faith\nbargaining between producers or associations of producers and processors\nor handlers through a joint settlement committee pursuant to subdivision\nten of this section.\n * NB Expired January 1, 1987\n (3) Any marketing agreement or order issued by the commissioner\npursuant to this article may contain any or all of the following:\n (a) Provisions for determining the existence and extent of the surplus\nof any agricultural commodity, or of any grade, size or quality thereof,\nand providing for the regulation and disposition of such surplus.\n (b) Provisions for limiting the total quantity of any agricultural\nproduct, or of any grade or grades, size or sizes, or quality or\nportions or combinations thereof, which may be marketed during any\nspecified period or periods. Such total quantity of any such commodity\nso regulated shall not be less than the quantity which the commissioner\nshall find is reasonably necessary to supply the market demand of\nconsumers for such commodity.\n (c) Provisions regulating the period, or periods, during which any\nagricultural commodity, or any grade or grades, size or sizes or quality\nor portions or combinations of such commodity, may be marketed.\n (d) Provisions for the establishment of uniform grading, standards,\nand inspection of any agricultural commodity delivered by producers or\nother persons to handlers, processors, distributors or others engaging\nin the handling thereof, and for the establishment of grading or\nstandards of quality, condition, size, maturity or pack for any\nagricultural commodity, and the inspection and grading of such commodity\nin accordance with such grading or standards so established; and for\nprovisions that no producer, handler, processor or distributor of any\nagricultural commodity for which grading or standards are so established\nmay, except as otherwise provided in such marketing agreement or order,\nsell, offer for sale, process, distribute or otherwise handle any such\ncommodity whether produced within or without this state, not meeting and\ncomplying with such established grading or standards. For the purposes\nof this article, the federal-state inspection service shall perform all\ninspections made necessary by such provisions.\n (e) Provisions for the establishment of research programs designed to\nbenefit a specified commodity or New York agriculture in general.\n * (f) Provisions to allow for growers or associations of growers to\nbargain in good faith with processors or handlers through a joint\nsettlement committee pursuant to subdivision ten of this section.\n * NB Expired January 1, 1987\n (g) Such other provisions as may be necessary to effectuate the\ndeclared policies of this article.\n (h) Provisions to establish marketing promotion and research programs\nfor aquatic products which may include paragraphs (a) through (g) of\nthis subdivision.\n (4) The commissioner may temporarily suspend the operation of an\neffective marketing order for a continuing period of not longer than one\ngrowing and marketing season, if the purposes of this article are deemed\nunnecessary during such season.\n (5) In carrying out the purposes of this article, the commissioner\nshall take into consideration any and all facts available to him with\nrespect to the following economic factors:\n (a) The quantity of such agricultural commodity available for\ndistribution.\n (b) The quantity of such agricultural commodity normally required by\nconsumers.\n (c) The cost of producing such agricultural commodity.\n (d) The purchasing power of consumers.\n (e) The level of prices of commodities, services and articles which\nthe farmers commonly buy.\n (f) The level of prices of other commodities which compete with or are\nutilized as substitutes for such agricultural commodity.\n (6) The execution of such marketing agreements shall in no manner\naffect the issuance, administration or enforcement of any marketing\norder provided for in this article. The commissioner may issue such\nmarketing order without executing a marketing agreement or may execute a\nmarketing agreement without issuing a marketing order covering the same\ncommodity. The commissioner, in his discretion, may hold a concurrent\nhearing upon a proposed marketing agreement and a proposed marketing\norder in the manner provided for giving due notice and opportunity for\nhearing for a marketing order as provided in this article.\n (7) Prior to the issuance, amendment or termination of any marketing\norder, the commissioner may require the applicants for such issuance,\namendment or termination to deposit with him such amount as he may deem\nnecessary to defray the expenses of preparing and making effective\namending or terminating a marketing order. Such funds shall be received,\ndeposited and disbursed by the commissioner in the same manner as other\nfees received by him under this article and, in the event the\napplication for adoption, amendment or termination of a marketing order\nis approved in a referendum, the commissioner shall reimburse any such\napplicant in the amount of any such deposit from any unexpended monies\ncollected under the marketing order affected by such referendum.\n (8) Any moneys collected by the commissioner pursuant to this article\nshall not be deemed state funds and shall be deposited in a bank or\nother depository in this state, approved by the commissioner, allocated\nto each marketing order under which they are collected, and shall be\ndisbursed by the commissioner only for the necessary expenses incurred\nby the commissioner with respect to each such separate marketing order,\nall in accordance with the rules and regulations of the commissioner.\nAll such expenditures shall be audited by the state comptroller at least\nannually and within thirty days after the completion thereof the state\ncomptroller shall give a copy thereof to the commissioner. Any moneys\nremaining in such fund allocable to any particular commodity affected by\na marketing order may, in the discretion of the commissioner, be\nrefunded at the close of any marketing season upon a pro-rata basis to\nall persons from whom assessments therefor were collected or, whenever\nthe commissioner finds that such moneys may be necessary to defray the\ncost of operating such marketing order in a succeeding marketing season,\nhe may carry over all or any portion of such moneys into the next such\nsucceeding season. Upon the termination by the commissioner of any\nmarketing order, all moneys remaining and not required by the\ncommissioner to defray the expenses of operating such marketing order,\nshall be refunded by the commissioner upon a pro-rata basis to all\npersons from whom assessments therefor were collected; provided,\nhowever, that if the commissioner finds that the amounts so refundable\nare so small as to make impracticable the computation and refunding of\nsuch refunds, the commissioner may use such moneys to defray the\nexpenses incurred by him in the formulation, issuance, administration or\nenforcement of any subsequent marketing order for such commodity.\n (9) Advisory board. (a) Any marketing order issued pursuant to this\narticle shall provide for the establishment of an advisory board, to\nconsist of not less than five members nor more than nine members, to\nadvise the commissioner in the administration of such marketing order in\naccordance with its terms and provisions. The members of said board\nshall be appointed by the commissioner from nominations received from\nthe commodity group for which the marketing order is established.\nNominating procedure, qualification, representation and size of the\nadvisory board shall be prescribed in each marketing order for which\nsuch board is appointed. Each advisory board shall be composed of such\nproducers and handlers or processors as are directly affected by the\nmarketing order in such proportion of representation as the order shall\nprescribe. The commissioner may appoint one person who is neither a\nproducer nor processor nor other handler to represent the department of\nagriculture and markets or the public generally.\n (b) No member of an advisory board shall receive a salary, but each\nshall be entitled to his actual expenses incurred while engaged in\nperforming his duties herein authorized.\n (c) The duties and responsibilities of each advisory board shall be\nprescribed by the commissioner, and he may specifically delegate to the\nadvisory board, by inclusion in the marketing order, all or any of the\nfollowing duties and responsibilities:\n 1. The recommendation to the commissioner of administrative rules and\nregulations relating to the marketing order.\n 2. Recommending to the commissioner such amendments to the marketing\norder as seem advisable.\n 3. The preparation and submission to the commissioner of the estimated\nbudget required for the proper operation of the marketing order.\n 4. Recommending to the commissioner methods for assessing members of\nthe industry and methods for collecting the necessary funds.\n 5. Assisting the commissioner in the collection and assembling of\ninformation and data necessary to the proper administration of the\norder.\n 6. The performance of such other duties in connection with the\nmarketing order as the commissioner shall designate.\n * (10) (a) If a marketing order is established for processed apples in\nthe counties of Niagara, Orleans, Monroe, Wayne and Ontario, pursuant to\nthis section, the commissioner by July fifteenth of each year shall\nappoint a joint settlement committee to facilitate good faith\nbargaining. In the event that price and other contract terms are not\nagreed upon by the bargaining process by October first of each year the\njoint settlement committee shall recommend to the commissioner a price\nand such other terms as designated by the order. The joint settlement\ncommittee recommendations will be final and binding upon all producers,\nprocessors and handlers subject to the marketing order unless the\ncommissioner finds that they are not in accordance with paragraph (b) of\nthis subdivision and the intent of this article in which case he may\nmodify the recommendations. Such order may authorize the joint\nsettlement committee to prescribe procedures to facilitate agriculture\nbargaining between representatives of producers, processors and\nhandlers, including procedures in the selection of bargaining\nrepresentatives and remedies for failure to bargain in good faith.\n (b) The joint settlement committee shall base its recommendations upon\nthe following factors:\n i. Prices or projected prices for the agricultural commodity paid by\ncompeting handlers or processors in the market area or competing market\nareas;\n ii. Amount of the commodity produced or projections of production in\nthe production area or competing marketing areas;\n iii. Relationship between the quantity produced and the quantity\nhandled by the handlers and processors;\n iv. The producers' cost of production;\n v. The average consumer prices for goods and services, commonly known\nas the cost of living;\n vi. The impact of the joint settlement committees recommendations on\nthe competitive position of the handlers and processors in the marketing\narea or competing areas;\n vii. The impact of the award on the competitive position of the\nagricultural commodity in relationship to competing commodities;\n viii. A fair return on investment;\n ix. Kind, quality or grade of the commodity involved;\n x. The carryover inventory of the commodity from previous marketing\nperiods; and\n xi. Such other factors which are normally or traditionally taken into\nconsideration in determining prices, quality, quantity, and the costs of\nother services involved.\n * NB Expired January 1, 1987\n