Agriculture_Markets
Andrew M. Cuomo, Governor | Richard A. Ball, Commissioner
 
 

New York State Consolidated Laws

Agriculture & Markets

                               ARTICLE 21-AA
                            DAIRY PROMOTION ACT
Section 258-aa.     Declaration of policy.

  S  258-aa.  Declaration of policy.  (a) It is hereby declared that the
dairy industry is a paramount agricultural industry of this  state,  and
is  an  industry  affecting the health and welfare of the inhabitants of
the state; that the continued existence of the dairy  industry  and  the
continued  production  of  milk  on  the  farms of this state is of vast
economic importance to the state and to the health and  welfare  of  the
inhabitants  thereof;  that  it  is  essential,  in order to assure such
continued production of milk and its  handling  and  distribution,  that
prices to producers be such as to return reasonable costs of production,
and at the same time  assure  an  adequate  supply  of  milk  and  dairy
products  to  consumers  at  reasonable  prices; and to these ends it is
essential that consumers and others be adequately  informed  as  to  the
dietary  needs  and  advantages of milk and dairy products and as to the
economies resulting from the use of milk  and  dairy  products,  and  to
command  for  milk  and  dairy  products,  consumer attention and demand
consistent with their importance and value.  It is further declared that
continued  decline in the consumption of fluid milk and some other dairy
products will jeopardize the production of adequate supplies of milk and
dairy  products  because  of  increasing surpluses necessarily returning
less to producers; and that continued  adequate  supplies  of  milk  and
dairy  products is a matter of vital concern as affecting the health and
general welfare of the people of this state. It is therefore declared to
be the legislative intent and policy of the state:
  (1)  To  enable  milk producers and others in the dairy industry, with
the aid of the state, to more effectively  promote  the  consumption  of
milk and dairy products,
  (2)  To  provide  methods  and  means  for  the development of new and
improved dairy products, and to promote their use, and
  (3)  To  this end, eliminate the possible impairment of the purchasing
power of the milk producers of this state  and  to  assure  an  adequate
supply of milk for consumers at reasonable prices.
  (b)  Definitions.  As  used in this act the following terms shall have
the following meanings:
  (1)  "Commissioner"  means the commissioner of agriculture and markets
of the state of New York.
  (2)  "Dairy  products"  means milk and products derived therefrom, and
products of which milk or a portion thereof is a significant part.
  (3)  "Producer"  means  any person in this state who is engaged in the
production of milk or who causes milk to be produced for any  market  in
this or any other state.
  (4)  "Advisory  board" means the persons appointed by the commissioner
from  nominations  from  producers  as  herein  defined  to  assist  the
commissioner in administering a dairy promotion order.
  (5)  "Milk  dealer"  means  any  person  who  purchases  or handles or
receives   or   sells   milk,   including   individuals,   partnerships,
corporations,  cooperative  associations, and unincorporated cooperative
associations.
  (6) "Dairy promotion order" means an order issued by the commissioner,
pursuant to the provisions of this act.
  (7) "Cooperative" means an association or federation or cooperative of
milk producers organized under the laws of New York state, or any  other
state,  having agreements with their producer members to market, bargain
for or sell the milk of such producers, and is actually  performing  one
or more of these services in the marketing of the milk produced by their
members, through  the  cooperative  or  through  a  federation  of  milk
cooperatives in which the cooperative has membership.
  (c) Powers and duties of the commissioner.
  (1)  The  commissioner  shall administer and enforce the provisions of
this act, and shall have and may exercise any or all the  administrative
powers  conferred  upon the head of a department. In order to effectuate
the declared policy of this act the commissioner may, after  due  notice
and hearing, make and issue a dairy promotion order, or orders.
  (2)  Such order or orders shall be issued and amended or terminated in
accordance with the following procedures:
  (a)  Before any such order may become effective it must be approved by
fifty-one per centum of the producers of milk voting in  the  referendum
for  the  area  to be regulated by such order. Such referendum shall not
constitute valid approval  unless  fifty-one  per  centum  of  all  milk
producers for the area to be regulated vote in the referendum. Producers
may  vote  by  individual  ballot  or  through  their  cooperatives   in
accordance with the following procedures:
  (i)  Cooperatives  may  submit written approval of such order within a
period of one hundred twenty days after the commissioner has announced a
referendum  on  a  proposed order, for such producers who are listed and
certified to the commissioner as members of such cooperative,  provided,
however,  that  any  cooperative before submitting such written approval
shall give at least sixty days prior written notice to each producer who
is  its  member,  of  the  intention  of the cooperative to approve such
proposed order, and further provide that if such  cooperative  does  not
intend  to  approve  such proposed order, it shall likewise give written
notice to each such producer who is its member, of its intention not  to
approve of such proposed order.
  (ii) Any producer may obtain a ballot from the commissioner so that he
may register his own approval or disapproval of the proposed order.
  (iii)  A  producer who is a member of a cooperative which has notified
him of its intent to approve or not to approve of a proposed order,  and
who  obtains  a  ballot  and  with such ballot expresses his approval or
disapproval of the proposed order, shall notify the commissioner  as  to
the  name  of  the  cooperative  of  which  he  is  a  member,  and  the
commissioner shall remove such producer`s name from the  list  certified
by such cooperative.
  (iv) In order to insure that all milk producers are informed regarding
a proposed order, the commissioner shall notify all milk producers  that
an  order  is  being  considered and that each producer may register his
approval or disapproval with the commissioner either directly or through
his cooperative.
  (v)  The  commissioner  may appoint a referendum advisory committee to
assist and advise him in the conduct of the referendum.  Such  committee
shall  review  referendum  procedures and the tabulation of results, and
shall advise the commissioner of its findings. The  final  certification
of  the  referendum  results  shall  be  made  by  the commissioner. The
committee shall consist of not less than three  members,  none  of  whom
shall  be  persons  directly affected by the promotion order being voted
upon. Two members shall be representatives of general farm organizations
which  are  not  directly  affected  by  the order being voted upon. The
members of the committee  shall  not  receive  a  salary  but  shall  be
entitled  to  actual and reasonable expenses incurred in the performance
of their duties.
  (b)  The  commissioner may, and upon written petition of not less than
ten per centum of the producers in the area, either  as  individuals  or
through  cooperative  representation,  shall, call a hearing to amend or
terminate such order, and any such amendment or termination shall be ef-
fective  only  upon approval of fifty-one per centum of the producers of
milk for the area  regulated  participating  in  a  referendum  vote  as
provided pursuant to paragraph two of subdivision (c) of this section.
  (3)  The  commissioner  shall  administer  and  enforce any such dairy
promotion order while it is in effect, for the purpose of:
  (a)  Encouraging  the  consumption  of  milk  and  dairy  products  by
acquainting consumers and others with  the  advantages  and  economy  of
using more of such products,
  (b)  Protecting  the  health  and  welfare of consumers by assuring an
adequate supply of milk and dairy products,
  (c)  Providing  for  research  programs  designed  to  develop new and
improved dairy products,
  (d) Providing for research programs designed to acquaint consumers and
the public generally with the effects of  the  use  of  milk  and  dairy
products on the health of such consumers,
  (e)  Carrying  out,  in  other ways, the declared policy and intent of
this act.
  (d) Provisions of dairy promotion orders. Any dairy promotion order or
orders may contain, among others, any or all of the following:
  (1)  Provision for levying an assessment against all producers subject
to the regulation for the purpose of carrying out the provisions of such
order  and to pay the cost of administering and enforcing such order. In
order to collect any such assessments, provision shall be made for  each
milk  dealer  who  receives  milk from producers to deduct the amount of
assessment from moneys otherwise  due  to  producers  for  the  milk  so
delivered. The rate of such assessment shall not exceed two per cent per
hundredweight of the gross value of the producers milk, and there may be
credited  against  any  such  assessment  the  amounts per hundredweight
otherwise paid by  any  producer  covered  by  the  order  by  voluntary
contribution  or  otherwise  pursuant to any other federal or state milk
market order for any similar research promotion or advertising  program.
Notwithstanding  the  provisions  of paragraph two of subdivision (c) of
this section, the commissioner, upon written petition of  no  less  than
twenty-five  per cent of producers in the area, either as individuals or
through cooperative representation, may call  a  hearing  for  the  sole
purpose  of  establishing  a  new  rate  of assessment hereunder and may
submit a proposed change in the rate of assessment to the producers  for
acceptance  or  rejection  without  otherwise  affecting  the order. The
producers  in  the  area  may  vote  on  the  proposed  rate  either  as
individuals  or  through cooperative representation. Notwithstanding the
foregoing  provisions  of  this  paragraph  and  of  paragraph  two   of
subdivision  (c)  of  this  section,  or  the  provisions  of  any order
promulgated pursuant to this section, the rate of  assessment,  for  any
period  during  which  a  dairy  products  promotion  and research order
established pursuant to the federal dairy and tobacco adjustment act  of
1983 is in effect, shall not be less than an amount equal to the maximum
credit which producers participating  in  this  state`s  dairy  products
promotion  or  nutrition  education  programs  may  receive  pursuant to
subdivision (g) of Sec. 113 of said federal act.
  (2)  Provision  for  payments to organizations engaged in campaigns by
advertisements or otherwise, including participation in similar regional
or  national  plans or campaigns to promote the increased consumption of
milk and dairy  products,  to  acquaint  the  public  with  the  dietary
advantages  of  milk  and  dairy  products and with the economy of their
inclusion in the diet and to  command,  for  milk  and  dairy  products,
consumer attention consistent with their importance and value.
  (3) Provision for payments to institutions or organizations engaged in
research leading to the development of new or improved dairy products or
research  with  respect  to  the value of milk and dairy products in the
human diet.
  (4) Provision for requiring records to be kept and reports to be filed
by milk dealers with respect to milk received from  producers  and  with
respect to assessments on the milk of such producers.
  (5) Provision for the auditing of the records of such milk dealers for
the purpose of verifying payment of producer assessments.
  (6) Provision for an advisory board as hereinafter indicated.
  (7)  Such  other  provisions  as  may  be  necessary to effectuate the
declared policies of the act.
  (e)  Matters  to be considered. In carrying out the provisions of this
act and particularly in determining whether or  not  a  dairy  promotion
order  shall  be issued, the commissioner shall take into consideration,
among others, facts available to him with respect to the following:
  (1)  The  total  production  of milk in the area and the proportion of
such milk being utilized in fluid form and in other products,
  (2) The prices being received for milk by producers in the area,
  (3)  The  level  of consumption per capita for fluid milk and of other
dairy products,
  (4) The purchasing power of consumers,
  (5)  Other  products  which  compete  with milk and dairy products and
prices of such products.
  (f)  Interstate orders for compacts. The commissioner is authorized to
confer and cooperate with the legally constituted authorities  of  other
states  and  of  the  United  States  with  respect  to the issuance and
operation of joint  and  concurrent  dairy  promotion  orders  or  other
activities  tending  to carry out the declared intent of the act. He may
join with such other authorities  in  conducting  joint  investigations,
holding  joint  hearings and issuing joint or concurrent order or orders
complementary to those of the federal  government  and  shall  have  the
authority  to  employ  or  designate  a joint agent or joint agencies to
carry out and enforce such joint, concurrent or supplementary orders.
  (g)  Prior  assessments.  Prior  to  the  effective  date of any dairy
promotion order as provided in this act, the  commissioner  may  require
that  cooperative  associations  which have petitioned for such an order
and who have approved of the issuance of such an order, to deposit  with
the  commissioner  such  amounts  as he may deem necessary to defray the
expense of administering and enforcing such order until such time as the
assessments  as  herein  before  provided are adequate for that purpose.
Such  funds  shall  be  received,  deposited  and   disbursed   by   the
commissioner  in the same manner as other funds received by him pursuant
to this article and the commissioner  shall  reimburse  those  who  paid
these  prior  assessments  from  other funds received by him pursuant to
this article.
  (h)  Status  of  funds.  Any  moneys  collected under any market order
issued pursuant to this article shall not be deemed to  be  state  funds
and  shall  be  deposited  in  a bank or other depository in this state,
approved by the commissioner and the  state  comptroller,  allocated  to
each dairy promotion order under which they were collected, and shall be
disbursed by the commissioner only for the necessary  expenses  incurred
by  the  commissioner  with  respect  to  each  separate  order,  all in
accordance with the rules and regulations of the commissioner. All  such
expenses shall be audited by the state comptroller at least annually and
within thirty days after the completion thereof  the  state  comptroller
shall  give  a copy thereof to the commissioner. Any moneys remaining in
such fund allocable to a particular order, after the termination of such
order  and  not  required  by the commissioner to defray the expenses of
operating such order, may in  the  discretion  of  the  commissioner  be
refunded  on  a  pro-rata  basis  to  all  persons from whom assessments
therefor were collected; provided, however,  that  if  the  commissioner
finds   that  the  amounts  so  refundable  are  so  small  as  to  make
impracticable  the  computation  and  refunding  of  such  moneys,   the
commissioner  may use such moneys to defray the expenses incurred by him
in the promulgation, issuance,  administration  or  enforcement  of  any
other  similar dairy promotion order or in the absence of any other such
dairy promotion order, the commissioner  may  pay  such  moneys  to  any
organization  or  institution  as  provided  in paragraphs (2) or (3) of
subdivision (d) of this section.
  (i)   Budget.   The  commissioner  shall  prepare  a  budget  for  the
administration and operating costs and  expenses  including  advertising
and  sales promotion when required in any dairy promotion order executed
hereunder and to provide for the collection of such  necessary  fees  or
assessments  to  defray costs and expenses, in no case to exceed two per
cent per hundredweight of the gross value of milk marketed by  producers
in the area covered by the order.
  (j) Advisory board.
  (1)  Any  dairy  promotion order issued pursuant to this article shall
provide for the establishment of an advisory board to advise and  assist
the  commissioner  in the administration of such order. This board shall
consist of not less than five members and  shall  be  appointed  by  the
commissioner  from  nominations submitted by producers marketing milk in
the  area  to   which   the   order   applies.   Nominating   procedure,
qualification,  representation,  and size of the advisory board shall be
prescribed in the order for which such board was appointed.
  (2) No member of an advisory board shall receive a salary but shall be
entitled to his actual and reasonable expenses incurred while performing
his duties as authorized herein.
  (3)  The  duties  and  responsibilities of the advisory board shall be
prescribed by the commissioner and he may specifically delegate  to  the
advisory board, by inclusion in the dairy promotion order, all or any of
the following duties and responsibilities:
  (a) The recommendation to the commissioner of administrative rules and
regulations relating to the order.
  (b)  Recommending  to the commissioner such amendments to the order as
seem advisible.
  (c) The preparation and submission to the commissioner of an estimated
budget required for the proper operation of the order.
  (d)  Recommending  to the commissioner methods for assessing producers
and methods for collecting the necessary funds.
  (e)  Assisting  the  commissioner  in  the  collection and assembly of
information and data necessary for  the  proper  administration  of  the
order.
  (f)  The performance of such other duties in connection with the order
as the commissioner shall designate.
  (k) Rules and regulations enforcement.
  (1)  Rules  and regulations. The commissioner may, with the advice and
assistance of  the  advisory  board,  make  and  issue  such  rules  and
regulations  as may be necessary to effectuate the provisions and intent
of this article and to enforce the provisions  of  any  dairy  promotion
order, all of which shall have the force and effect of law.
  (2)  Enforcement. The commissioner may institute such action at law or
in equity as  may  appear  necessary  to  enforce  compliance  with  any
provision of this article, or any rule or regulation, or dairy promotion
order committed to his administration, and  in  addition  to  any  other
remedy  under  article three of this chapter or otherwise, may apply for
relief by injunction if necessary to protect the public interest without
being  compelled  to allege or prove that an adequate remedy at law does
not exist. Such application shall be made to the supreme  court  in  any
district  or  county  provided in the civil practice law or rules, or to
the supreme court in the third judicial district.