N.Y. Urban Development Corporation Act 174/68 § 16-x: Dairy promotion act

* § 16-x. Dairy promotion act. 1. Declaration of policy. (a) It is

hereby declared that the mission of the corporation is to promote a

vigorous and growing state economy. In implementing this mission, the

corporation has undertaken a vigorous campaign to market the state's

assets and, by carrying out the provisions of this section, would

further this mission by promoting the state's dairy industry.

(b) It is further declared that the continued existence of the state

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 to 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:

(i) 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,

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

improved dairy products, and to promote their use, and

(iii) To this end, to 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) "President" means the president of the corporation.

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

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

(c) "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.

(d) "Advisory board" means the persons appointed by the commissioner

from nominations from producers to assist the president in administering

a dairy promotion order.

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

receives or sells milk, including individuals, partnerships,

corporations, cooperative associations, and unincorporated cooperative

associations.

(f) "Dairy promotion order" means an order issued by the president,

pursuant to the provisions of this section.

(g) "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.

(h) "State" means the state of New York.

(i) "Department" means the New York state department of agriculture

and markets.

(j) "Commissioner" means the commissioner of the New York state

department of agriculture and markets.

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

administer and enforce the provisions of this section. In order to

effectuate the declared policy of this section the president, in

consultation with the commissioner and producers, may, after due notice

and hearing, make and issue a dairy promotion order, or orders.

(b) Such order or orders shall, in consultation with the commissioner

and producers, be issued and amended or terminated in accordance with

the following procedures:

(i) 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:

(A) Cooperatives may submit written approval of such order within a

period of one hundred twenty days after the president has announced a

referendum on a proposed order, for such producers who are listed and

certified to the president 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.

(B) Any producer may obtain a ballot from the president so that he or

she may register his or her own approval or disapproval of the proposed

order.

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

or her of its intent to approve or not to approve of a proposed order,

and who obtains a ballot and with such ballot expresses his or her

approval or disapproval of the proposed order, shall notify the

president as to the name of the cooperative of which he or she is a

member, and the president shall remove such producer's name from the

list certified by such cooperative.

(D) In order to ensure that all milk producers are informed regarding

a proposed order, the president shall notify all milk producers that an

order is being considered and that each producer may register his or her

approval or disapproval with the president either directly or through

his or her cooperative.

(E) The president shall consult with the milk producers and establish

a referendum advisory committee to assist and advise him or her in the

conduct of the referendum. Such committee shall review referendum

procedures and the tabulation of results, and shall advise the president

of its findings. The final certification of the referendum results shall

be made by the president. The committee shall be selected by the

commissioner in consultation with the president, and 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.

(ii) The president, in consultation with 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 president, consulting with and seeking the advice and consent

of the advisory board, 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,

(v) 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 percent 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 (b) of subdivision three of

this section, the president, upon written petition of no less than

twenty-five percent of producers in the area, either as individuals or

through cooperative representation, and in consultation with the

commissioner, 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 Sec. 113 of said 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 pursuant to subdivision 10 of this

section.

(g) Provision for the president to retain money collected under any

marketing order issued pursuant to this section, to defray the costs and

expenses in the administration thereof.

(h) 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 president, in consultation with the

commissioner, shall take into consideration, among others, facts

available to him or her 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,

(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 the act. 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 the

president, after consulting with the commissioner, 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 president, in

consultation with the commissioner, may require that cooperative

associations which have petitioned for such an order and that have

approved of the issuance of such an order, to deposit with the president

such amounts as he or she 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 president

in the same manner as other funds received by him or her pursuant to

this section and the president shall reimburse those who paid these

prior assessments from other funds received by him or her 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 or corporation

funds and shall be deposited in a bank or other depository of the

corporation, approved by the president, allocated to each dairy

promotion order under which they were collected, and shall be disbursed

by the president only for the necessary expenses incurred by the

president with respect to each separate order, all in accordance with

the rules and regulations of the president. All such expenses shall be

subject to audits by the state comptroller. Any moneys remaining in such

fund allocable to a particular order, after the termination of such

order and not required by the president to defray the expenses of

operating such order, may in the discretion of the president be refunded

on a pro-rata basis to all persons from whom assessments therefor were

collected; provided, however, that if the president finds that the

amounts so refundable are so small as to make impracticable the

computation and refunding of such moneys, the president may use such

moneys to defray the expenses incurred by him or her 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 president 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, in consultation with the president, 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 president in the administration of such order. The

president shall administer and enforce any such dairy promotion order

while it is in effect, consulting with the advisory board and seeking

its advice and consent. 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 his or her actual and reasonable expenses incurred while

performing his or her duties as authorized in this section.

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

prescribed by the president, in consultation with the commissioner, and

he or she shall specifically delegate to the advisory board, by

inclusion in the dairy promotion order the following duties and

responsibilities:

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

regulations relating to the order.

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

deemed advisable.

(iii) The preparation and submission to the commissioner, in

consultation with the president, of an estimated budget required for the

proper operation of the order.

(iv) Recommending to the president methods for assessing producers and

methods for collecting the necessary funds.

(v) Assisting the president 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 president shall designate.

11. Rules and regulations; enforcement. (a) The president may, with

the advice and consent 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 president, in consultation with 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 his or her

administration, and 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 and rules, or to the supreme court in the third

judicial district.

12. Cooperation by the department. The president may request and

receive, within ninety days of such request from the department such

assistance, information and cooperation as may be necessary for the

corporation to provide services with respect to the administration of

the procedures set forth for the issuance, termination or amendment of

any dairy promotion order and/or the administration of any such order.

The corporation shall retain an amount equal to the expenses incurred by

the corporation in performing its duties pursuant to this section and

reimburse the department an amount equal to the expenses incurred by the

department in supplying such services, subsequent to submission and

audit of a voucher therefor. Such reimbursement shall not exceed the

total amount of funds collected by the corporation pursuant to this

section less the reasonable expenses incurred by the corporation in

performing its duties pursuant to this section.

13. Indemnification. The state shall defend, indemnify and hold

harmless the corporation, its directors, officers, and employees, from

and against any and all claims, demands, causes of action, damages,

costs and expenses whatsoever arising directly or indirectly from, or

relating to, the administration of a dairy promotion order issued or

administered pursuant to this section. In connection with the foregoing,

the corporation shall give the state (a) prompt written notice of any

action, claim or threat of suit, (b) the opportunity to take over,

settle or defend such action, claim or suit at the state's sole expense,

and (c) assistance in the defense of any such action at the expense of

the state.

14. Contractual provisions. The corporation may contract for services

with respect to the implementation of this section in accordance with

the corporation's policies, procedures and guidelines. Notwithstanding

section 2879 of the public authorities law or any other law to the

contrary, any such contract may be procured by the corporation on a

sole-source basis, and shall not be subject to competitive bid or

competitive request for proposal requirements.

* NB Repealed July 1, 2026