N.Y. AGM Law § 258-AA — New York Code / Act AGM / Article 21-AA / Section 258-AA
Dairy promotion act
Status: in_force

§ 258-aa. Dairy promotion act. 1. Declaration of policy. It is hereby\ndeclared that the dairy industry is a paramount agricultural industry of\nthis state, and is an industry affecting the health and welfare of the\ninhabitants of the state; that the continued existence of the dairy\nindustry and the continued production of milk on the farms of this state\nis of vast economic importance to the state and to the health and\nwelfare of the inhabitants thereof; that it is essential, in order to\nassure such continued production of milk and its handling and\ndistribution, that prices to producers be such as to return reasonable\ncosts of production, and at the same time assure an adequate supply of\nmilk and dairy products to consumers at reasonable prices; and to these\nends it is essential that consumers and others be adequately informed as\nto the dietary needs and advantages of milk and dairy products and as to\nthe economies resulting from the use of milk and dairy products, and to\ncommand for milk and dairy products, consumer attention and demand\nconsistent with their importance and value. It is further declared that\ncontinued decline in the consumption of fluid milk and some other dairy\nproducts will jeopardize the production of adequate supplies of milk and\ndairy products because of increasing surpluses necessarily returning\nless to producers; and that continued adequate supplies of milk and\ndairy products is a matter of vital concern as affecting the health and\ngeneral welfare of the people of this state. It is therefore declared to\nbe the legislative intent and policy of the state:\n  (a) To enable milk producers and others in the dairy industry, with\nthe aid of the state, to more effectively promote the consumption of\nmilk and dairy products;\n  (b) To provide methods and means for the development of new and\nimproved dairy products, and to promote their use; and\n  (c) To this end, eliminate the possible impairment of the purchasing\npower of the milk producers of this state and to assure an adequate\nsupply of milk for consumers at reasonable prices.\n  2. Definitions. As used in this section the following terms shall have\nthe following meanings:\n  (a) "Dairy products" means milk and products derived therefrom, and\nproducts of which milk or a portion thereof is a significant part.\n  (b) "Producer" means any person in this state who is engaged in the\nproduction of milk or who causes milk to be produced for any market in\nthis or any other state.\n  (c) "Advisory board" means the persons appointed by the commissioner\nfrom nominations from producers as herein defined to assist the\ncommissioner in administering a dairy promotion order.\n  (d) "Milk dealer" means any person who purchases or handles or\nreceives or sells milk, including individuals, partnerships,\ncorporations, cooperative associations, and unincorporated cooperative\nassociations.\n  (e) "Dairy promotion order" means an order issued by the commissioner,\npursuant to the provisions of this section.\n  (f) "Cooperative" means an association or federation or cooperative of\nmilk producers organized under the laws of New York state, or any other\nstate, having agreements with their producer members to market, bargain\nfor or sell the milk of such producers, and is actually performing one\nor more of these services in the marketing of the milk produced by their\nmembers, through the cooperative or through a federation of milk\ncooperatives in which the cooperative has membership.\n  3. Powers and duties of the commissioner. (a) The commissioner shall\nadminister and enforce the provisions of this section and shall have and\nmay exercise any or all the administrative powers conferred upon the\nhead of a department. In order to effectuate the declared policy of this\nsection the commissioner may, after due notice and hearing, make and\nissue a dairy promotion order, or orders.\n  (b) Such order or orders shall be issued and amended or terminated in\naccordance with the following procedures:\n  (i) Before any such order may become effective it shall be approved by\nfifty-one per centum of the producers of milk voting in the referendum\nfor the area to be regulated by such order. Such referendum shall not\nconstitute valid approval unless fifty-one per centum of all milk\nproducers for the area to be regulated vote in the referendum.\n  (ii) Producers may vote by individual ballot or through their\ncooperatives in accordance with the following procedures:\n  (1) Cooperatives may submit written approval of such order within a\nperiod of one hundred twenty days after the commissioner has announced a\nreferendum on a proposed order, for such producers who are listed and\ncertified to the commissioner as members of such cooperative, provided,\nhowever, that any cooperative before submitting such written approval\nshall give at least sixty days prior written notice to each producer who\nis its member, of the intention of the cooperative to approve such\nproposed order, and further provide that if such cooperative does not\nintend to approve such proposed order, it shall likewise give written\nnotice of at least sixty days to each such producer who is its member,\nof its intention not to approve of such proposed order.\n  (2) Any producer may obtain a ballot from the commissioner so that\nthey may register their own approval or disapproval of the proposed\norder.\n  (3) A producer who is a member of a cooperative which has notified\nsuch producer of its intent to approve or not to approve of a proposed\norder, and who obtains a ballot and with such ballot expresses the\nproducer's approval or disapproval of the proposed order, shall notify\nthe commissioner as to the name of the cooperative of which the producer\nis a member, and the commissioner shall remove such producer's name from\nthe list certified by such cooperative.\n  (4) In order to ensure that all milk producers are informed regarding\na proposed order, the commissioner shall notify all milk producers that\nan order is being considered, and that each producer may register the\nproducer's approval or disapproval with the commissioner either directly\nor through the producer's cooperative.\n  (5) The commissioner may appoint a referendum advisory committee to\nassist and advise the commissioner in the conduct of the referendum.\nSuch committee shall review referendum procedures and the tabulation of\nresults and shall advise the commissioner of its findings. The final\ncertification of the referendum results shall be made by the\ncommissioner. The committee shall consist of not less than three\nmembers, none of whom shall be persons directly affected by the\npromotion order being voted upon. Two members shall be representatives\nof general farm organizations which are not directly affected by the\norder being voted upon. The members of the committee shall not receive a\nsalary but shall be entitled to actual and reasonable expenses incurred\nin the performance of their duties.\n  (6) The commissioner may, and upon written petition of not less than\nten per centum of the producers in the area, either as individuals or\nthrough cooperative representation shall, call a hearing to amend or\nterminate such order, and any such amendment or termination shall be\neffective only upon approval of fifty-one per centum of the producers of\nmilk for the area regulated participating in a referendum vote as\nprovided pursuant to this paragraph.\n  (c) The commissioner shall administer and enforce any such dairy\npromotion order while it is in effect, for the purpose of:\n  (i) Encouraging the consumption of milk and dairy products by\nacquainting consumers and others with the advantages and economy of\nusing more of such products.\n  (ii) Protecting the health and welfare of consumers by assuring an\nadequate supply of milk and dairy products.\n  (iii) Providing for research programs designed to develop new and\nimproved dairy products.\n  (iv) Providing for research programs designed to acquaint consumers\nand the public generally with the effects of the use of milk and dairy\nproducts on the health of such consumers.\n  (d) Carrying out, in other ways, the declared policy and intent of\nthis section.\n  4. Provisions of dairy promotion orders. Any dairy promotion order or\norders may contain, among others, any or all of the following:\n  (a) Provision for levying an assessment against all producers subject\nto the regulation for the purpose of carrying out the provisions of such\norder and to pay the cost of administering and enforcing such order. In\norder to collect any such assessments, provision shall be made for each\nmilk dealer who receives milk from producers to deduct the amount of\nassessment from moneys otherwise due to producers for the milk so\ndelivered. The rate of such assessment shall not exceed two per cent per\nhundredweight of the gross value of the producer's milk, and there may\nbe credited against any such assessment the amounts per hundredweight\notherwise paid by any producer covered by the order by voluntary\ncontribution or otherwise pursuant to any other federal or state milk\nmarket order for any similar research promotion or program.\nNotwithstanding the provisions of paragraph (b) of subdivision three of\nthis section, the commissioner, upon written petition of no less than\ntwenty-five per cent of producers in the area, either as individuals or\nthrough cooperative representation, may call a hearing for the sole\npurpose of establishing a new rate of assessment hereunder and may\nsubmit a proposed change in the rate of assessment to the producers for\nacceptance or rejection without otherwise affecting the order. The\nproducers in the area may vote on the proposed rate either as\nindividuals or through cooperative representation. Notwithstanding the\nforegoing provisions of this paragraph and of paragraph (b) of\nsubdivision three of this section, or the provisions of any order\npromulgated pursuant to this section, the rate of assessment, for any\nperiod during which a dairy products promotion and research order\nestablished pursuant to the federal dairy and tobacco adjustment act of\n1983 is in effect, shall not be less than an amount equal to the maximum\ncredit which producers participating in this state's dairy products\npromotion or nutrition education programs may receive pursuant to\nsubdivision (g) of section 113 of such federal act.\n  (b) Provision for payments to organizations engaged in campaigns by\nadvertisements or otherwise, including participation in similar regional\nor national plans or campaigns to promote the increased consumption of\nmilk and dairy products, to acquaint the public with the dietary\nadvantages of milk and dairy products and with the economy of their\ninclusion in the diet and to command, for milk and dairy products,\nconsumer attention consistent with their importance and value.\n  (c) Provision for payments to institutions or organizations engaged in\nresearch leading to the development of new or improved dairy products or\nresearch with respect to the value of milk and dairy products in the\nhuman diet.\n  (d) Provision for requiring records to be kept and reports to be filed\nby milk dealers with respect to milk received from producers and with\nrespect to assessments on the milk of such producers.\n  (e) Provision for the auditing of the records of such milk dealers for\nthe purpose of verifying payment of producer assessments.\n  (f) Provision for an advisory board as hereinafter indicated.\n  (g) Such other provisions as may be necessary to effectuate the\ndeclared policies of this section.\n  5. Matters to be considered. In carrying out the provisions of this\nsection and particularly in determining whether or not a dairy promotion\norder shall be issued, the commissioner shall take into consideration,\namong others, facts available to them with respect to the following:\n  (a) The total production of milk in the area and the proportion of\nsuch milk being utilized in fluid form and in other products;\n  (b) The prices being received for milk by producers in the area;\n  (c) The level of consumption per capita for fluid milk and of other\ndairy products;\n  (d) The purchasing power of consumers; and\n  (e) Other products which compete with milk and dairy products and\nprices of such products.\n  6. Interstate orders for compacts. The commissioner is authorized to\nconfer and cooperate with the legally constituted authorities of other\nstates and of the United States with respect to the issuance and\noperation of joint and concurrent dairy promotion orders or other\nactivities tending to carry out the declared intent of this section. The\ncommissioner may join with such other authorities in conducting joint\ninvestigations, holding joint hearings, and issuing joint or concurrent\norder or orders complementary to those of the federal government and\nshall have the authority to employ or designate a joint agent or joint\nagencies to carry out and enforce such joint, concurrent, or\nsupplementary orders.\n  7. Prior assessments. Prior to the effective date of any dairy\npromotion order as provided in this section, the commissioner may\nrequire that cooperatives which have petitioned for such an order and\nwho have approved of the issuance of such an order, to deposit with the\ncommissioner such amounts as the commissioner may deem necessary to\ndefray the expense of administering and enforcing such order until such\ntime as the assessments as herein before provided are adequate for that\npurpose. Such funds shall be received, deposited, and disbursed by the\ncommissioner in the same manner as other funds received pursuant to this\nsection and the commissioner shall reimburse those who paid these prior\nassessments from other funds received pursuant to this section.\n  8. Status of funds. Any moneys collected under any market order issued\npursuant to this section shall not be deemed to be state funds and shall\nbe deposited in a bank or other depository in this state, approved by\nthe commissioner and the state comptroller, allocated to each dairy\npromotion order under which they were collected, and shall be disbursed\nby the commissioner only for the necessary expenses incurred by the\ncommissioner with respect to each separate order, all in accordance with\nthe rules and regulations of the commissioner. All such expenses shall\nbe audited by the state comptroller at least annually and within thirty\ndays after the completion thereof the state comptroller shall give a\ncopy thereof to the commissioner. Any moneys remaining in such fund\nallocable to a particular order, after the termination of such order and\nnot required by the commissioner to defray the expenses of operating\nsuch order, may in the discretion of the commissioner be refunded on a\npro-rata basis to all persons from whom assessments therefor were\ncollected; provided, however, that if the commissioner finds that the\namounts so refundable are so small as to make impracticable the\ncomputation and refunding of such moneys, the commissioner may use such\nmoneys to defray the expenses incurred by them in the promulgation,\nissuance, administration or enforcement of any other similar dairy\npromotion order or in the absence of any other such dairy promotion\norder, the commissioner may pay such moneys to any organization or\ninstitution as provided in paragraph (b) or (c) of subdivision four of\nthis section.\n  9. Budget. The commissioner shall prepare a budget for the\nadministration and operating costs and expenses including advertising\nand sales promotion when required in any dairy promotion order executed\nhereunder and to provide for the collection of such necessary fees or\nassessments to defray costs and expenses, in no case to exceed two\npercent per hundredweight of the gross value of milk marketed by\nproducers in the area covered by the order.\n  10. Advisory board. (a) Any dairy promotion order issued pursuant to\nthis section shall provide for the establishment of an advisory board to\nadvise and assist the commissioner in the administration of such order.\nThis board shall consist of not less than five members and shall be\nappointed by the commissioner from nominations submitted by producers\nmarketing milk in the area to which the order applies. Nominating\nprocedure, qualification, representation, and size of the advisory board\nshall be prescribed in the order for which such board was appointed.\n  (b) No member of an advisory board shall receive a salary but shall be\nentitled to reimbursement of the member's actual and reasonable expenses\nincurred while performing such member's duties as authorized herein.\n  (c) The duties and responsibilities of the advisory board shall be\nprescribed by the commissioner, and the commissioner may specifically\ndelegate to the advisory board, by inclusion in the dairy promotion\norder, all or any of the following duties and responsibilities:\n  (i) The recommendation to the commissioner of administrative rules and\nregulations relating to the order.\n  (ii) Recommending to the commissioner such amendments to the order as\nseems advisable.\n  (iii) The preparation and submission to the commissioner of an\nestimated budget required for the proper operation of the order.\n  (iv) Recommending to the commissioner methods for assessing producers\nand methods for collecting the necessary funds.\n  (v) Assisting the commissioner in the collection and assembly of\ninformation and data necessary for the proper administration of the\norder.\n  (vi) The performance of such other duties in connection with the order\nas the commissioner shall designate.\n  11. Rules and regulations enforcement. (a) The commissioner may, with\nthe advice and assistance of the advisory board, make and issue such\nrules and regulations as may be necessary to effectuate the provisions\nand intent of this section and to enforce the provisions of any dairy\npromotion order, all of which shall have the force and effect of law.\n  (b) The commissioner may institute such action at law or in equity as\nmay appear necessary to enforce compliance with any provision of this\nsection, or any rule or regulation, or dairy promotion order committed\nto the commissioner's administration, and in addition to any other\nremedy under article three of this chapter or otherwise, may apply for\nrelief by injunction if necessary to protect the public interest without\nbeing compelled to allege or prove that an adequate remedy at law does\nnot exist. Such application shall be made to the supreme court in any\ndistrict or county provided in the civil practice law or rules, or to\nthe supreme court in the third judicial district.\n