NY Agric & Mkts L § 258-M (2021)
2021 New York Laws AGM - Agriculture and Markets Article 21 - Milk Control 258-M - Orders Fixing Prices for Milk and Marketing Agreements.

§ 258-m. Orders  fixing  prices for milk and marketing agreements.  1.   Upon the petition of a producers' bargaining agency  of  the  production   area  supplying  a  marketing  area,  such  agency representing at least   thirty-five per centum of the producers of milk  therein,  alleging  the   existence  of  conditions  so affecting the orderly marketing of milk in   such area that public interest requires regulation of prices of milk  in   such  area and equalization of the burden of surplus milk and expense of   handling it, and sharing the benefits of the fluid market in order  that   the  public policy declared in section two hundred fifty-eight-k of this   chapter shall  be  effective,  and  upon  the  written  request  of  the   petitioner,  the  commissioner  shall set, without a hearing, an interim   price for class I fluid milk, and may set an interim price for class  II   and/or  III  milk.  In  determining such interim price, the commissioner   shall take into consideration, among other factors: (a) the prices being   paid to producers; (b) the costs of production  to  producers;  (c)  any   changes  in  the  ratio of index of prices received for milk to index of   prices paid by dairy farmers; (d) the level of prices paid to  producers   in  adjoining markets; and (e) the interests of the general public. Such   interim price shall be set within five days of such written request  and   to  the  extent  practicable apply to any milk purchased on or after the   first day of the month following such determination. Such interim  price   shall  be in effect until the final determination regarding the petition   is made pursuant to the provisions of this article  and  is  enforceable   and effectuated, provided however, such interim price shall be in effect   for  no longer than one hundred eighty consecutive calendar days. During   such time when the interim price is in effect,  the  commissioner  shall   provide  for  and enforce a mechanism for compensatory payments and have   the  authority  to  establish  and  administer  an   equalization   pool   throughout  the  entire  state  or  any part thereof. Such interim price   shall be reviewable by a person aggrieved in a  proceeding  pursuant  to   article   seventy-eight  of  the  civil  practice  law  and  rules.  The   effectiveness or enforcement of such interim price regulation shall  not   be  restrained, stayed, or enjoined pendente lite. In addition, it shall   be the duty of the  commissioner  to  call  a  public  hearing  for  the   consideration of said petition and to give notice thereof by advertising   such call in such newspaper or newspapers of general circulation in such   marketing  area  as  the commissioner deems advisable. Such notice shall   specify a time and a place  within  the  marketing  area  at  which  the   hearing  will  be  held  and  at which the applicants and other persons,   including  producers,  distributors  and  consumers   and   associations   thereof,  may be heard. In not more than fifteen days upon receiving the   petition the commissioner shall set the hearing date in accordance  with   the  above  provisions.  Such  hearing  shall  commence in not less than   fifteen days but not more than twenty days of the notice specifying  the   date and time of the hearing. Such hearing shall conclude within fifteen   days  of  commencement, provided however, if the commissioner determines   in writing that the hearing has been conducted with due diligence but an   extension is necessary to accord due process, he or she may  extend  the   hearing  for  a period not to exceed ten days. If after such hearing the   commissioner  shall  find,  upon  the  record  of  the  proceeding  that   conditions  referred  to  in  section  two hundred fifty-eight-k of this   chapter exist so affecting the orderly marketing of milk in  such  area,   that public interest requires that the public policy declared in section   two hundred fifty-eight-k of this chapter shall be effective and that it   is  necessary  that  prices  for  milk  to producers and associations of   producers be fixed by the commissioner,  as  expressed  by  section  two   hundred  fifty-eight-k  of  this  chapter,  and that it is favored by at   least sixty-six and two-thirds per  centum  of  the  producers  of  milk    produced  in  the  production  area  for  said  marketing  area  voting,   individually  or  through   cooperatives,   in   the   referendum,   the   commissioner may by order fix and determine for such marketing area fair   and  equitable minimum prices to be paid to producers. The determination   of the commissioner as to whether or not by order to fix  and  determine   minimum  prices  shall  be  made  within  forty days after such hearing,   effective on the first day of the month following the determination.  If   the  commissioner determines not to fix and determine minimum prices, he   shall state his reasons in writing and transmit same to the  petitioner,   the  governor,  the temporary president of the senate and the speaker of   the assembly. Such price fixing  order  or  orders  shall  be  rescinded   effective  at  the  end  of  the  current  month  after a public hearing   whenever the commissioner shall find either that  such  conditions  have   ceased  to  exist  or  that  such  termination  is  favored  by at least   thirty-five per centum of the producers  of  milk  handled  within  such   market.  For  purposes  of this subdivision, unless otherwise specified,   days shall mean business days.2. The commissioner may, from time to time upon like petition,  during   the  existence  of  such  conditions  revise  the prices so fixed, after   holding a hearing thereon. Whenever  as  herein  provided  a  producers'   bargaining  agency of a production area supplying a marketing area shall   file a petition and/or amended petition praying for any relief  provided   in  this  article, it shall be lawful for a distributors' agency of such   marketing area to file a petition and/or amended petition providing  for   the  consideration  of  issues  therein  raised relative to the petition   and/or amended petition of the producers' bargaining agency,  or  to  an   existing  milk  marketing  order. Upon receipt of any such petition of a   producers'  bargaining  agency  for  any  such   marketing   area,   the   commissioner  shall  mail  a  copy  thereof  to  the  secretary  of  the   distributors' bargaining agency for such marketing area, if  any,  which   meets  the  qualifications  set  forth  in  the  last  sentence  of this   paragraph. If  such  distributors'  bargaining  agency  files  either  a   petition  or  an  amended petition with the commissioner or notifies the   commissioner that no such petition will be filed, the  commissioner  may   proceed to give notice of hearing as provided in subdivision one of this   section;  otherwise  the  commissioner  shall  defer  the giving of such   notice of hearing for a period of  ten  days  after  such  distributors'   bargaining  agency  has  received  from  the  commissioner a copy of the   petition and/or amended petition of the  producers'  bargaining  agency.   The  commissioner  shall  mail  a  copy  of the distributors' bargaining   agency petition to the secretary of the producers' bargaining agency and   shall give such notice of such petition by publication or  otherwise  as   the  commissioner deems advisable. Evidence upon the proposals set forth   in both the producers' and  distributors'  bargaining  agency  petitions   shall  be  received  at  the same hearing. The commissioner shall not be   required to furnish a copy of any petition of  a  producers'  bargaining   agency to a distributors' bargaining agency nor shall such distributors'   bargaining  agency  be  entitled  to  file a petition and to be heard as   herein provided unless within the calendar  year  preceding  the  filing   with  the commissioner of the producers' bargaining agency petition such   distributors' bargaining agency shall have filed with the commissioner a   list of its distributor members and  the  names  and  addresses  of  its   officers  and unless such distributors' bargaining agency represents not   less than sixty per centum of the quantity of milk distributed  in  such   marketing   area,   exclusive   of   that   distributed  by  cooperative   corporations, as determined by the reports submitted to the commissioner   during the preceding license year. The  provisions  of  this  subdivision   relative   to   distributors'   bargaining  agency  petitions shall not apply to any milk marketing area   or order, jointly administered by the commissioner and  any  officer  or   agency of the United States or of any other state.3.  Before  fixing  any  prices  pursuant to the provisions of the two   preceding  paragraphs,  the  commissioner  shall  investigate  what  are   reasonable   costs   and   charges  for  producing,  hauling,  handling,   processing and/or other services performed in respect of milk  and  what   prices  for  milk  in  the market or markets affected by such prices and   under varying conditions will  be  most  in  the  public  interest.  The   commissioner   shall   take   into  consideration  the  balance  between   production  and  consumption  of  milk,  the  cost  of  production   and   distribution,  including  compliance  with  all  sanitary regulations in   force in the market or markets affected, the cost of feeding stuffs used   in the production of milk, the supply of milk in  such  market  and  the   purchasing  power  and welfare of the public. The commissioner shall fix   prices to producers on the basis of  the  use  thereof  in  the  various   classes,  grades  and  forms.  Any  prices  fixed  or  approved  by  the   commissioner shall be deemed to be prima facie reasonable.4. In determining the approval or  request  for  an  order  as  herein   provided  or  the  termination  thereof  on  the  part  of producers the   commissioner shall consider the approval, request or  favor  in  respect   thereto by any bona fide cooperative association of producers engaged in   marketing  milk  within  such marketing area as the approval, request or   favor either of making  an  order  or  of  termination  thereof  of  the   producers  who  are  under contract with such cooperative association of   producers.The commissioner shall 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.  A  record  of  the   committee's advice, recommendations and findings shall be kept and  made   available  to  any  person  upon request. The final certification of the   referendum results shall be made  by  the  commissioner.  The  committee   shall  consist  of  three members. One member shall be appointed from at   least  three  nominations  of  producers  submitted  by  the   producers   bargaining  agency,  one shall be an independent producer, and one shall   be appointed from at least three nominations of producers  submitted  by   any  general  farm  organization. The members of the committee shall not   receive a salary but shall be entitled to actual and reasonable expenses   in the performance of their duties.5.  Marketing  agreements.  It  shall  be  lawful  for  a   producers'   bargaining  agency of the production area supplying a marketing area and   a distributors' bargaining agency for such marketing area to enter  into   marketing  agreements  as  to  the  prices to be paid by distributors to   producers for milk sold or otherwise utilized in said marketing area, as   to  rules  and  regulations  covering  the  method  of  determining  the   proportion  of  the product of the entire dairy herd of a producer which   shall be accepted and paid for pursuant to such price or prices,  as  to   reasonable trade practices affecting the relations between producers and   distributors  in such market. Such agreement may also contain provisions   for  a  committee  to  administer  the  provisions  of  said   marketing   agreement.  No  agreement,  however,  shall  be  effective  until a copy   thereof signed by all persons parties thereto shall have been filed with   the commissioner.If the commissioner  shall  have  reason  to  believe  that  any  such   marketing  agreement results in a monopoly or restraint of trade to such   an extent that the price of milk is unduly enhanced by  reason  thereof,    he  shall  serve  upon the parties to such agreement a complaint stating   his charge in that respect, to which  complaint  shall  be  attached  or   contained  therein  a notice of hearing specifying a date and place, not   less  than  thirty days after the service thereof, requiring the parties   to such marketing agreement to show cause why an  order  should  not  be   made  directing  them  to  cease  and desist from such monopolization or   restraint of trade. The parties so complained of may  at  the  time  and   place  so  fixed  show  cause  why such order should not be entered. The   evidence given at such a hearing shall be taken  under  such  rules  and   regulations  as the commissioner shall prescribe, reduced to writing and   made a part of the record therein. If upon such hearing the commissioner   shall be of  the  opinion  that  such  marketing  agreement  results  in   monopoly  or restraint of trade to such an extent that the price of milk   in the marketing area affected by such agreement is unduly enhanced,  he   shall issue and cause to be served upon the parties to said agreement an   order  reciting  the  facts found by him and directing them to cease and   desist from such undue enhancement of  prices.  If  such  order  is  not   obeyed  by  the  parties  to such agreement, the commissioner shall file   with the attorney-general a certified copy of  the  order,  evidence  of   such  disobedience  and  all  of  the records in the proceeding, and the   attorney-general may apply to the supreme court for an order  or  decree   affirming,  modifying  or  setting  aside  such order or for making such   other order or decree as the court may deem equitable in the premises.Upon application of the parties to said marketing agreement and  after   a  hearing,  as  provided  in  subdivision  one  of  this  section,  the   commissioner  may  by  order  make  the  provisions  of  said  marketing   agreement, relative to prices to producers and other provisions thereof,   effective  as to all producers, distributors and handlers in said market   notwithstanding that they may not have approved of said agreement if  he   shall  find  that  the  terms and conditions of said agreement are fair,   equitable and in public interest, that the  agreement  has  been  fairly   entered  into  without fraud, that public interest so requires, in order   to effectuate the declaration of policy contained in section two hundred   fifty-eight-k of this chapter, that the proportion of the producers  and   distributors  who  have  executed  such agreement or shall have approved   same upon the hearing is equal to  that  required  for  an  order  under   subdivision   one  of  this  section,  and  further  provided  that  the   commissioner shall determine that the prices set forth in said marketing   agreement are reasonable and proper prices, as required by this  section   for  prices  fixed  by an order of the commissioner. Any order so issued   shall terminate effective on the last day of the current month,  and  in   the  same  manner and upon the same request after a hearing, as provided   for the termination of an order in subdivision one of this section.6. If approved by sixty-six and two-thirds per centum of the producers   affected  voting  individually  or  through  their  cooperative  in  the   referendum,  any  order  or  marketing  agreement  fixing  the  price to   producers under either subdivision  one  or  subdivision  five  of  this   section for market or markets, may provide for an equalization of prices   to  all  producers of the production area of the market affected so that   each producer or co-operative association shall receive  the  same  base   price  for  all  milk  delivered subject to reasonable differentials for   quality and location and  for  services.  Any  such  order  may  contain   provisions  requiring  from  persons  who  bring  milk or cream into the   marketing area regulated by such order payments  on  all  such  milk  or   cream whenever such persons are not otherwise regulated by the order.In  order  to  effect  such  equalization  of  prices to producers the   commissioner shall require a monthly report from each  dealer  receiving   milk  from producers for such market showing the disposition of all milk    handled by the reporting dealer in  such  market  and  shall  thereafter   require  payment  by  each  dealer,  to  a trust company designated as a   fiscal agent by the  commissioner,  of  any  amount  by  which  the  sum   otherwise  due  by  such  dealer to its producers in accordance with the   prices  fixed  by  such  order  exceeds  the  equalized  base  price  as   determined  by the commissioner from such reports, which amounts so paid   to said fiscal agent, the commissioner shall direct it to pay  to  those   dealers  whose  reports  show  that  the base prices they will pay their   producers in accordance with such order are less than the equalized base   price as so determined by the commissioner, for  repayment  in  turn  by   such  dealers  to  their  producers  so  as  to bring all lower rates of   payment up to the equalized base price. Such  payments  to  said  fiscal   agents  shall  not  be deemed to be state funds. Such equalization shall   include milk of all grades and produced by all breeds of cows,  and  may   include   milk,   approved  by  a  board  or  boards  of  health  having   jurisdiction in a marketing area  designated  in  an  order  under  this   section, which was produced by a dealer.The  provisions  of  this subdivision shall not become operative as to   the New York state metropolitan market production area,  however,  until   pursuant  to federal or state statutes, or by action of authorities duly   constituted and  authorized  thereunder,  prices  to  producers  are  so   equalized  and  made effective throughout all the production area of the   New York state metropolitan market area.7. After the commissioner shall have  fixed  prices  in  any  area  or   approved  prices in a marketing agreement to be charged or paid for milk   in any form included in the definition of milk as used in  this  article   whether  by  class, grade or use, it shall be unlawful for a milk dealer   to buy or offer to buy milk at any price less than such price or  prices   as  shall  be applicable to the particular transaction, and no method or   device shall be lawful whereby milk is bought or sold or offered  to  be   bought  or  sold at a price less than such price, or prices, as shall be   applicable to the particular  transaction,  whether  by  a  discount  or   rebate,  or  free service, or advertising allowance, or a combined price   for such milk together with another commodity or commodities, or service   or services, which is less than the aggregate of the prices for the milk   and the price or prices for such  other  commodity  or  commodities,  or   service  or  services,  when  sold  or  offered  for  sale separately or   otherwise.8. It is the intent of the legislature that the instant, whenever that   may be, that the handling within the state by  a  milk  dealer  of  milk   produced  outside  of  the  state becomes a subject of regulation by the   state, in the exercise of its police powers, the restrictions set  forth   in  this  article  respecting  such milk so produced shall apply and the   powers conferred by this article shall attach.9. No  marketing  agreement  or  order  shall  prevent  a  cooperative   association  from  blending  as heretofore the proceeds of all sales and   distributing to its producers the resultant  blended  price  subject  to   deductions  and  differentials  as  provided  by  its contracts with its   producers, but no such cooperative association shall sell milk at prices   lower than the prices fixed by the commissioner  in  an  order  for  the   markets affected.10.  Any  marketing agreement or order of the commissioner may provide   for necessary deductions from payments to producers to cover the cost of   administering such marketing agreement or order, including the  cost  of   auditing  milk  dealers' classifications, and the cost of other services   to producers. The  funds  so  derived  from  such  deductions  shall  be   deposited  in  an  account within the miscellaneous special revenue fund   and shall not be deemed to be state funds. The commissioner may, in  his    or   her   discretion,  appoint  an  administrator  and  such  assistant   administrators as in his or her opinion may be necessary  to  administer   the  terms of any agreement or order, and the persons so appointed shall   be  deemed  to occupy positions confidential to the commissioner and may   be appointed without competitive examination. All other persons employed   by the commissioner in the administration of such a marketing  agreement   or  order shall be selected in accordance with the civil service law and   rules.11. Any marketing agreement or order of the commissioner  may  provide   (a) for payments to cooperative associations of producers in cases where   the  commissioner  finds  that  such associations are actually rendering   marketing services to producers under contract with them, which services   enure to the benefit of all producers in the market or to the benefit of   the market as a whole and  may  include  the  conduct  and  maintenance,   jointly  with  other cooperative associations, of plans or campaigns, by   advertisement or otherwise, including participation in similar  regional   or  national plans or campaigns, to promote the increased consumption of   milk and  milk  products,  to  acquaint  the  public  with  the  dietary   advantages  of  milk and milk products and with the economy in the diet,   and  to  command,  for  milk  and  dairy  products,  consumer  attention   consistent  with  their  importance and value, or that such associations   are rendering services in the control and disposition of surplus for the   benefit of the market; (b) for payment to milk dealers or to cooperative   associations of producers  which  operate  milk  receiving  stations  or   manufacturing  plants  for services rendered by them, in the stabilizing   of the supply of fluid milk and cream within the market at times  either   of  surplus  or of shortage of milk; and (c) for adjustments in payments   to producers to effect a more favorable seasonal balance as between  the   production  and consumption of milk. Such adjustments may be made in the   form of deductions and additions to the fund to equalize prices of  milk   to  producers, or by apportioning among producers the total value of all   milk subject to equalization on the basis of their  marketings  of  milk   during  a  representative  period  of time. Any such deductions from the   fund to equalize prices shall not be deemed  to  be  state  funds.  Such   moneys  shall  be  held  in reserve and used solely for additions to the   fund to equalize prices, in such manner as the order  may  provide.  The   commissioner  shall  make  no provision for adjustment in payments under   this section with respect to a state milk marketing order, except on the   petition  of  a  producers'  bargaining  agency  of  a  production  area   supplying  a  marketing  area  and after a public hearing and subsequent   producer approval as required by this section.12. "Distributor" as used in this and the preceding  section  means  a   milk  dealer  as  defined  in  this  article who delivers milk to stores   and/or consumers within the marketing area, from a milk  depot  or  milk   plant owned and/or operated by such dealer.