N.Y. Agriculture & Markets Law § 293: Powers and duties of the commissioner

§ 293. Powers and duties of the commissioner. 1. In order to

effectuate the declared policy of this article, the commissioner may,

after due notice and opportunity for hearing, approve marketing

agreements, which marketing agreements shall thereupon be binding upon

the signatories thereto exclusively.

2. The commissioner may make and issue marketing orders, after due

notice and opportunity for hearing, subject to:

(a) Approval of not less than sixty-six and two-thirds per centum of

the producers participating in a referendum in the area affected, or

(b) Approval of not less than sixty-five per centum of the producers

participating in a referendum vote, in the area affected, and having

marketed not less than fifty-one per centum of the total quantity of the

commodity which was marketed in the next preceding marketing season by

all producers that voted in the referendum, or

(c) Approval of not less than fifty-one per centum of the producers

participating in a referendum vote, in the area affected, and having

marketed not less than sixty-five per centum of the total quantity of

the commodity which was marketed in the next preceding marketing season

by all producers that voted in the referendum.

3. The commissioner may and upon written petition duly signed by

twenty-five per centum of the producers in the area shall, amend or

terminate such order after due notice and opportunity for hearing, but

subject to the approval of not less than fifty per centum of such

producers participating in a referendum vote.

4. The commissioner shall administer and enforce any marketing order,

while it is in effect, to:

(a) Encourage and maintain stable prices received by producers for

such agricultural commodity and aquatic product at a level which is

consistent with the provisions and aims of this article.

(b) Prevent the unreasonable or unnecessary waste of land or

water-based wealth.

(c) Protect the interests of consumers of such commodity, by

exercising the powers of this article to such extent as is necessary to

effectuate the purposes of this article.

(d) Prepare a budget for the administration and operating costs and

expenses including advertising and sales promotion when required in any

marketing agreement or order executed hereunder and to provide for the

collection of such necessary fees to defray such costs and expenses, in

no case to exceed five percent of the gross dollar volume of sales or

dollar volume of purchases or amounts handled, to be collected from each

person engaged in the production, processing, distributing or the

handling of any marketable agricultural commodity and aquatic product

produced or landed in this state and directly affected by any marketing

order issued pursuant to this article for such commodity.

(e) Confer and cooperate with the legally constituted authorities of

other states and the United States.

5. Any marketing agreement or order issued by the commissioner

pursuant to this article may contain any or all of the following:

(a) Provisions for determining the existence and extent of the surplus

of any agricultural commodity, or of any grade, size, or quality

thereof, and providing for the regulation and disposition of such

surplus.

(b) Provisions for limiting the total quantity of any agricultural

product, or of any grade or grades, size or sizes, or quality or

portions or combinations thereof, which may be marketed during any

specified period or periods. Such total quantity of any such commodity

so regulated shall not be less than the quantity which the commissioner

shall find is reasonably necessary to supply the market demand of

consumers for such commodity.

(c) Provisions regulating the period, or periods, during which any

agricultural commodity, or any grade or grades, size or sizes or quality

or portions or combinations of such commodity, may be marketed.

(d) Provisions for the establishment of uniform grading, standards,

and inspection of any agricultural commodity delivered by producers or

other persons to handlers, processors, distributors or others engaging

in the handling thereof, and for the establishment of grading or

standards of quality, condition, size, maturity or pack for any

agricultural commodity, and the inspection and grading of such commodity

in accordance with such grading or standards so established; and for

provisions that no producer, handler, processor or distributor of any

agricultural commodity for which grading or standards are so established

may, except as otherwise provided in such marketing agreement or order,

sell, offer for sale, process, distribute or otherwise handle any such

commodity whether produced within or without this state, not meeting and

complying with such established grading or standards. For the purposes

of this article, the federal-state inspection service shall perform all

inspections made necessary by such provisions.

(e) Provisions for the establishment of research programs designed to

benefit a specified commodity or New York agriculture in general.

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

declared policies of this article.

(g) Provisions to establish marketing promotion and research programs

for aquatic products which may include paragraphs (a) through (f) of

this subdivision.

6. The commissioner may temporarily suspend the operation of an

effective marketing order for a continuing period of no longer than one

growing and marketing season, if the purposes of this article are deemed

unnecessary during such season.

7. In carrying out the purposes of this article, the commissioner

shall take into consideration any and all facts available to them with

respect to the following economic factors:

(a) The quantity of such agricultural commodity available for

distribution.

(b) The quantity of such agricultural commodity normally required by

consumers.

(c) The cost of producing such agricultural commodity.

(d) The purchasing power of consumers.

(e) The level of prices of commodities, services, and articles which

the farmers commonly buy.

(f) The level of prices of other commodities which compete with or are

utilized as substitutes for such agricultural commodity.

8. The execution of such marketing agreements shall in no manner

affect the issuance, administration or enforcement of any marketing

order provided for in this article. The commissioner may issue such

marketing order without executing a marketing agreement or may execute a

marketing agreement without issuing a marketing order covering the same

commodity. The commissioner, in their discretion, may hold a concurrent

hearing upon a proposed marketing agreement and a proposed marketing

order in the manner provided for giving due notice and opportunity for

hearing for a marketing order as provided in this article.

9. Prior to the issuance, amendment or termination of any marketing

order, the commissioner may require the applicants for such issuance,

amendment, or termination to deposit with them such amount as they may

deem necessary to defray the expenses of preparing and making effective

amending or terminating a marketing order. Such funds shall be received,

deposited, and disbursed by the commissioner in the same manner as other

fees received by the commissioner under this article and, in the event

the application for adoption, amendment or termination of a marketing

order is approved in a referendum, the commissioner shall reimburse any

such applicant in the amount of any such deposit from any unexpended

monies collected under the marketing order affected by such referendum.

10. Any moneys collected by the commissioner pursuant to this article

shall not be deemed state funds and shall be deposited in a bank or

other depository in this state, approved by the commissioner, allocated

to each marketing order under which they are collected, and shall be

disbursed by the commissioner only for the necessary expenses incurred

by the commissioner with respect to each such separate marketing order,

all in accordance with the rules and regulations of the commissioner.

All such expenditures 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 any particular commodity affected by

a marketing order may, in the discretion of the commissioner, be

refunded at the close of any marketing season upon a pro-rata basis to

all persons from whom assessments therefor were collected or, whenever

the commissioner finds that such moneys may be necessary to defray the

cost of operating such marketing order in a succeeding marketing season,

they may carry over all or any portion of such moneys into the next such

succeeding season. Upon the termination by the commissioner of any

marketing order, all moneys remaining and not required by the

commissioner to defray the expenses of operating such marketing order,

shall be refunded by the commissioner upon 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 refunds, the commissioner may use such moneys to defray the

expenses incurred by the commissioner in the formulation, issuance,

administration or enforcement of any subsequent marketing order for such

commodity.

11. Advisory board. (a) Any marketing order issued pursuant to this

article shall provide for the establishment of an advisory board, to

consist of not less than five members nor more than nine members, to

advise the commissioner in the administration of such marketing order in

accordance with its terms and provisions. The members of such board

shall be appointed by the commissioner from nominations received from

the commodity group for which the marketing order is established.

Nominating procedure, qualification, representation, and size of the

advisory board shall be prescribed in each marketing order for which

such board is appointed. Each advisory board shall be composed of such

producers and handlers or processors as are directly affected by the

marketing order in such proportion of representation as the order shall

prescribe. The commissioner may appoint one person who is neither a

producer nor processor nor other handler to represent the department of

agriculture and markets or the public generally.

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

shall be entitled to reimbursement for the member's actual expenses

incurred while engaged in performing the member's duties herein

authorized.

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

prescribed by the commissioner, and they may specifically delegate to

the advisory board, by inclusion in the marketing order, all or any of

the following duties and responsibilities:

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

regulations relating to the marketing order.

(ii) Recommending to the commissioner such amendments to the marketing

order as seem advisable.

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

estimated budget required or the proper operation of the marketing

order.

(iv) Recommending to the commissioner methods for assessing members of

the industry and methods for collecting the necessary funds.

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

information and data necessary to the proper administration of the

order.

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

marketing order as the commissioner shall designate.