N.Y. Agriculture & Markets Law § 258-aa: Dairy promotion act

§ 258-aa. Dairy promotion act. 1. Declaration of policy. 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:

(a) 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;

(b) To provide methods and means for the development of new and

improved dairy products, and to promote their use; and

(c) 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.

2. Definitions. As used in this section the following terms shall have

the following meanings:

(a) "Dairy products" means milk and products derived therefrom, and

products of which milk or a portion thereof is a significant part.

(b) "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.

(c) "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.

(d) "Milk dealer" means any person who purchases or handles or

receives or sells milk, including individuals, partnerships,

corporations, cooperative associations, and unincorporated cooperative

associations.

(e) "Dairy promotion order" means an order issued by the commissioner,

pursuant to the provisions of this section.

(f) "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.

3. Powers and duties of the commissioner. (a) The commissioner shall

administer and enforce the provisions of this section 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

section the commissioner may, after due notice and hearing, make and

issue a dairy promotion order, or orders.

(b) Such order or orders shall be issued and amended or terminated in

accordance with the following procedures:

(i) Before any such order may become effective it shall 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.

(ii) Producers may vote by individual ballot or through their

cooperatives in accordance with the following procedures:

(1) 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 of at least sixty days to each such producer who is its member,

of its intention not to approve of such proposed order.

(2) Any producer may obtain a ballot from the commissioner so that

they may register their own approval or disapproval of the proposed

order.

(3) A producer who is a member of a cooperative which has notified

such producer of its intent to approve or not to approve of a proposed

order, and who obtains a ballot and with such ballot expresses the

producer's approval or disapproval of the proposed order, shall notify

the commissioner as to the name of the cooperative of which the producer

is a member, and the commissioner shall remove such producer's name from

the list certified by such cooperative.

(4) In order to ensure 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 the

producer's approval or disapproval with the commissioner either directly

or through the producer's cooperative.

(5) The commissioner may appoint a referendum advisory committee to

assist and advise the commissioner 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.

(6) 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

effective 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 this paragraph.

(c) The commissioner shall administer and enforce any such dairy

promotion order while it is in effect, for the purpose of:

(i) Encouraging the consumption of milk and dairy products by

acquainting consumers and others with the advantages and economy of

using more of such products.

(ii) Protecting the health and welfare of consumers by assuring an

adequate supply of milk and dairy products.

(iii) Providing for research programs designed to develop new and

improved dairy products.

(iv) 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.

(d) Carrying out, in other ways, the declared policy and intent of

this section.

4. Provisions of dairy promotion orders. Any dairy promotion order or

orders may contain, among others, any or all of the following:

(a) 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 producer's 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 program.

Notwithstanding the provisions of paragraph (b) of subdivision three 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 (b) of

subdivision three 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 section 113 of such federal act.

(b) 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.

(c) 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.

(d) 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.

(e) Provision for the auditing of the records of such milk dealers for

the purpose of verifying payment of producer assessments.

(f) Provision for an advisory board as hereinafter indicated.

(g) Such other provisions as may be necessary to effectuate the

declared policies of this section.

5. Matters to be considered. In carrying out the provisions of this

section 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 them with respect to the following:

(a) The total production of milk in the area and the proportion of

such milk being utilized in fluid form and in other products;

(b) The prices being received for milk by producers in the area;

(c) The level of consumption per capita for fluid milk and of other

dairy products;

(d) The purchasing power of consumers; and

(e) Other products which compete with milk and dairy products and

prices of such products.

6. 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 this section. The

commissioner 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.

7. Prior assessments. Prior to the effective date of any dairy

promotion order as provided in this section, the commissioner may

require that cooperatives 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 the commissioner 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 pursuant to this

section and the commissioner shall reimburse those who paid these prior

assessments from other funds received pursuant to this section.

8. Status of funds. Any moneys collected under any market order issued

pursuant to this section 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 them 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 paragraph (b) or (c) of subdivision four of

this section.

9. 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

percent per hundredweight of the gross value of milk marketed by

producers in the area covered by the order.

10. Advisory board. (a) Any dairy promotion order issued pursuant to

this section 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.

(b) No member of an advisory board shall receive a salary but shall be

entitled to reimbursement of the member's actual and reasonable expenses

incurred while performing such member's duties as authorized herein.

(c) The duties and responsibilities of the advisory board shall be

prescribed by the commissioner, and the commissioner may specifically

delegate to the advisory board, by inclusion in the dairy promotion

order, all or any of the following duties and responsibilities:

(i) The recommendation to the commissioner of administrative rules and

regulations relating to the order.

(ii) Recommending to the commissioner such amendments to the order as

seems advisable.

(iii) The preparation and submission to the commissioner of an

estimated budget required for the proper operation of the order.

(iv) Recommending to the commissioner methods for assessing producers

and methods for collecting the necessary funds.

(v) Assisting the commissioner in the collection and assembly of

information and data necessary for the proper administration of the

order.

(vi) The performance of such other duties in connection with the order

as the commissioner shall designate.

11. Rules and regulations enforcement. (a) 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 section and to enforce the provisions of any dairy

promotion order, all of which shall have the force and effect of law.

(b) The commissioner may institute such action at law or in equity as

may appear necessary to enforce compliance with any provision of this

section, or any rule or regulation, or dairy promotion order committed

to the commissioner's 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.