§ 16-Y — Marketing of agricultural products

* § 16-y. Marketing of agricultural products. Declaration of policy.\n(a) It is hereby declared that the mission of the corporation is to\npromote a vigorous and growing state economy. In implementing this\nmission, the corporation has undertaken a vigorous campaign to market\nthe state's assets and by carrying out the provisions of this section,\nwould further this mission by promoting the development of markets for\nagricultural products grown and produced in the state.\n (b) It is further declared that the marketing of agricultural\ncommodities and aquatic products in this state, in excess of reasonable\nand normal market demands therefor; disorderly marketing of such\ncommodities; improper preparation for market and lack of uniform grading\nand classification of agricultural commodities and aquatic products;\nunfair methods of competition in the marketing of such commodities and\nthe inability of individual producers to develop new and larger markets\nfor agricultural commodities and aquatic products, result in an\nunreasonable and unnecessary economic waste of the agricultural wealth\nof this state. Such conditions and the accompanying waste jeopardize the\nfuture continued production of adequate food supplies for the people of\nthis and other states. These conditions vitally concern the health,\nsafety and general welfare of the people of this state.\n It is therefore declared the legislative purpose and the policy of\nthis state:\n (i) To enable agricultural producers and aquatic producers of this\nstate, with the aid of the state, more effectively to correlate the\nmarketing of their agricultural commodities and aquatic products with\nmarket demands therefor.\n (ii) To establish orderly, efficient and equitable marketing of\nagricultural commodities and aquatic products.\n (iii) To provide for uniform grading and proper preparation of\nagricultural commodities and aquatic products for market.\n (iv) To provide methods and means for the development of new and\nlarger markets for agricultural commodities and aquatic products\nproduced in New York.\n (v) To eliminate or reduce the economic waste in the marketing of\nagricultural commodities and aquatic products.\n (vi) To eliminate unjust impairment of the purchasing power of aquatic\nproducers and the agricultural producers of this state; and\n (vii) To aid agricultural and aquatic producers in maintaining an\nincome at an adequate and equitable level.\n 2. Definitions. (a) "Agricultural commodity" means any and all\nagricultural, horticultural, vineyard products, corn for grain, oats,\nsoybeans, barley, wheat, poultry or poultry products, bees, maple sap\nand pure maple products produced therefrom, christmas trees, livestock,\nincluding swine, and honey, sold in the state either in their natural\nstate or as processed by the producer thereof but does not include milk,\ntimber or timber products, other than christmas trees, all hay, rye and\nlegumes except for soybeans.\n (b) "Aquaculture" means the culture, cultivation and harvest of\naquatic plants and animals.\n (c) "Aquatic products" means any food or fiber products obtained\nthrough the practice of aquaculture, including mariculture; or by\nharvest from the sea when such products are cultured or landed in this\nstate. Such products include but are not limited to fish, shellfish,\nseaweed or other water based plant life.\n (d) "Producer" means any person engaged within this state in the\nbusiness of producing, or causing to be produced for any market, any\nagricultural commodity or aquatic product.\n (e) "Handler" means any person engaged in the operation of packing,\ngrading, selling, offering for sale or marketing any marketable\nagricultural commodities or aquatic products, who as owner, agent or\notherwise ships or causes an agricultural commodity to be shipped.\n (f) "Processor" means any person engaged within this state in\nprocessing, or in the operation of receiving, grading, packing, canning,\nfreezing, dehydrating, fermenting, distilling, extracting, preserving,\ngrinding, crushing, or in any other way preserving or changing the form\nof an agricultural product or aquatic product for the purpose of\nmarketing such commodity but shall not include a person engaged in\nmanufacturing from an agricultural commodity or aquatic product another\nand different product.\n (g) "Distributor" means any person engaged within this state, in\nselling, offering for sale, marketing or distributing an agricultural\ncommodity or aquatic product which he or she has purchased or acquired\nfrom a producer or other person or which he or she is marketing on\nbehalf of a producer or other person, whether as owner, agent, employee,\nbroker or otherwise, but shall not include a retailer, except such\nretailer who purchases or acquires from, or handles on behalf of any\nproducer or other person, an agricultural commodity or aquatic product\nsubject to regulation by the marketing agreement or order covering such\ncommodity.\n (h) "President" means the president of the corporation.\n (i) "Marketing agreement" means an agreement entered into, with the\napproval of the president, by producers with distributors, processors\nand handlers regulating the preparation, sale and handling of\nagricultural commodities or aquatic products.\n (j) "Marketing order" means an order issued by the president pursuant\nto this section, prescribing rules and regulations governing the\nmarketing for processing, the distributing, the sale of, or the handling\nin any manner of any agricultural commodity or aquatic product sold in\nthis state during any specified period or periods.\n (k) "Commissioner" means the commissioner of the New York state\ndepartment of agriculture and markets.\n (l) "Department" means the New York state department of agriculture\nand markets.\n 3. Powers and duties of the president. (a) In order to effectuate the\ndeclared policy of this section, the president, in consultation with the\ncommissioner, may, after due notice and opportunity for hearing, approve\nmarketing agreements, which marketing agreements shall thereupon be\nbinding upon the signatories thereto exclusively.\n (b) The president, in consultation with the commissioner and the\nproducers, may make and issue marketing orders, after due notice and\nopportunity for hearing, subject to:\n (i) approval of not less than sixty-six and two-thirds per centum of\nthe producers participating in a referendum in the area affected, or\n (ii) approval of not less than sixty-five per centum of the producers\nparticipating in a referendum vote, in the area affected, and having\nmarketed not less than fifty-one per centum of the total quantity of the\ncommodity which was marketed in the next preceding, ordinary marketing\nseason by all producers that voted in the referendum, or\n (iii) approval of not less than fifty-one per centum of the producers\nparticipating in a referendum vote, in the area affected, and having\nmarketed not less than sixty-five per centum of the total quantity of\nthe commodity which was marketed in the next preceding, ordinary\nmarketing season by all producers that voted in the referendum. The\npresident may, and upon written petition duly signed by twenty-five per\ncentum of the producers in the area amend or terminate such order after\ndue notice and opportunity for hearing, but subject to the approval of\nnot less than fifty per centum of such producers participating in a\nreferendum vote.\n (c) The president, consulting with and seeking the advice and consent\nof the advisory board shall administer and enforce any marketing order,\nwhile it is in effect, to:\n (i) Encourage and maintain stable prices received by producers for\nsuch agricultural commodity and aquatic product at a level which is\nconsistent with the provisions and aims of this act.\n (ii) Prevent the unreasonable or unnecessary waste of land or water\nbased wealth.\n (iii) Protect the interests of consumers of such commodity, by\nexercising the powers of this section to such extent as is necessary to\neffectuate the purposes of this act.\n (iv) Provide consultation to the commissioner who shall budget for the\nadministration and operating costs and expenses, seeking the advice and\nconsent of the advisory board, including advertising and sales promotion\nwhen required in any marketing agreement or order executed in this\nsection and to provide for the collection and retention of such\nnecessary fees to defray such costs and expenses, in no case to exceed\nfive percent of the gross dollar volume of sales or dollar volume of\npurchases or amounts handled, to be collected from each person engaged\nin the production, processing, distributing or the handling of any\nmarketable agricultural commodity and aquatic product produced or landed\nin this state and directly affected by any marketing order issued\npursuant to this section for such commodity.\n (v) Confer and cooperate with the legally constituted authorities of\nother states and the United States.\n (d) Any marketing agreement or order issued by the president pursuant\nto this section, in consultation with the commissioner, may contain any\nor all of the following:\n (i) Provisions for determining the existence and extent of the surplus\nof any agricultural commodity, or of any grade, size or quality thereof,\nand providing for the regulation and disposition of such surplus.\n (ii) Provisions for limiting the total quantity of any agricultural\nproduct, or of any grade or grades, size or sizes, or quality or\nportions or combinations thereof, which may be marketed during any\nspecified period or periods. Such total quantity of any such commodity\nso regulated shall not be less than the quantity which the president\nshall find is reasonably necessary to supply the market demand of\nconsumers for such commodity.\n (iii) Provisions regulating to the period, or periods, during which\nany agricultural commodity, or any grade or grades, size or sizes or\nquality or portions or combinations of such commodity, may be marketed.\n (iv) Provisions for the establishment of uniform grading, standards,\nand inspection of any agricultural commodity delivered by producers or\nother persons to handlers, processors, distributors or others engaging\nin the handling thereof, and for the establishment of grading or\nstandards of quality, condition, size, maturity or pack for any\nagricultural commodity, and the inspection and grading of such commodity\nin accordance with such grading or standards so established; and for\nprovisions that no producer, handler, processor or distributor of any\nagricultural commodity for which grading or standards are so established\nmay, except as otherwise provided in such marketing agreement or order,\nsell, offer for sale, process, distribute or otherwise handle any such\ncommodity whether produced within or without this state, not meeting and\ncomplying with such established grading or standards. For the purposes\nof this section, the federal-state inspection service shall perform all\ninspections made necessary by such provisions.\n (v) Provisions for the establishment of research programs designed to\nbenefit a specified commodity or New York agriculture in general.\n (vi) Provisions for the president to retain money collected under any\nmarketing order issued pursuant to this section to defray the costs and\nexpenses in the administration thereof.\n (vii) Such other provisions as may be necessary to effectuate the\ndeclared policies of this section.\n (viii) Provisions to establish marketing promotion and research\nprograms for aquatic products which may include subparagraphs (i)\nthrough (vii) of this paragraph.\n (e) The president, seeking the advice and the consent of the advisory\nboard, may temporarily suspend the operation of an effective marketing\norder for a continuing period of not longer than one growing and\nmarketing season, if the purposes of this section are deemed unnecessary\nduring such season.\n (f) In carrying out the purposes of this section, the president, in\nconsultation with the commissioner and consulting with and seeking the\nadvice and consent of the advisory board, shall take into consideration\nany and all facts available to him or her with respect to the following\neconomic factors:\n (i) The quantity of such agricultural commodity available for\ndistribution.\n (ii) The quantity of such agricultural commodity normally required by\nconsumers.\n (iii) The cost of producing such agricultural commodity.\n (iv) The purchasing power of consumers.\n (v) The level of prices of commodities, services and sections which\nthe farmers commonly buy.\n (vi) The level of prices of other commodities which compete with or\nare utilized as substitutes for such agricultural commodity.\n (g) The execution of such marketing agreements shall in no manner\naffect the issuance, administration or enforcement of any marketing\norder provided for in this section. The president, in consultation with\nthe commissioner, may issue such marketing order without executing a\nmarketing agreement or may execute a marketing agreement without issuing\na marketing order covering the same commodity. The president, in his or\nher discretion, in consultation with the commissioner may hold a\nconcurrent hearing upon a proposed marketing agreement and a proposed\nmarketing order in the manner provided for giving due notice and\nopportunity for hearing for a marketing order as provided in this\nsection.\n (h) Prior to the issuance, amendment or termination of any marketing\norder, the president may require the applicants for such issuance,\namendment or termination to deposit with him or her such amount as he or\nshe may deem necessary to defray the expenses of preparing and making\neffective amending or terminating a marketing order. Such funds shall be\nreceived, deposited and disbursed by the president in the same manner as\nother fees received by him or her under this section and, in the event\nthe application for adoption, amendment or termination of a marketing\norder is approved in a referendum, the president shall reimburse any\nsuch applicant in the amount of any such deposit from any unexpended\nmonies collected under the marketing order affected by such referendum.\n (i) Any moneys collected by the president pursuant to this section\nshall not be deemed state or corporation funds and shall be deposited in\na bank or other depository of the corporation, approved by the\npresident, allocated to each marketing order under which they are\ncollected, and shall be disbursed by the president only for the\nnecessary expenses incurred by the president with respect to each such\nseparate marketing order, all in accordance with the rules and\nregulations of the president. All such expenditures shall be subject to\naudits by the state comptroller. Any moneys remaining in such fund\nallocable to any particular commodity affected by a marketing order may,\nin the discretion of the president, be refunded at the close of any\nmarketing season upon a pro-rata basis to all persons from whom\nassessments therefor were collected or, whenever the president finds\nthat such moneys may be necessary to defray the cost of operating such\nmarketing order in a succeeding marketing season, he or she may carry\nover all or any portion of such moneys into the next such succeeding\nseason. Upon the termination by the president of any marketing order,\nall moneys remaining and not required by the president to defray the\nexpenses of operating such marketing order, shall be refunded by the\npresident upon a pro-rata basis to all persons from whom assessments\ntherefor were collected; provided, however, that if the president finds\nthat the amounts so refundable are so small as to make impracticable the\ncomputation and refunding of such refunds, the president may use such\nmoneys to defray the expenses incurred by him or her in the formulation,\nissuance, administration or enforcement of any subsequent marketing\norder for such commodity.\n (j) Advisory board. (i) Any marketing order issued pursuant to this\nsection shall provide for the establishment of an advisory board, to\nconsist of not less than five members nor more than nine members, to\nadvise the president in the administration of such marketing order in\naccordance with its terms and provisions. The president shall administer\nand enforce any such order while it is in effect, consulting with the\nadvisory board and seeking its advice and consent. The members of said\nboard shall be appointed by the commissioner from nominations received\nfrom the commodity group for which the marketing order is established.\nNominating procedure, qualification, representation and size of the\nadvisory board shall be prescribed in each marketing order for which\nsuch board is appointed. Each advisory board shall be composed of such\nproducers and handlers or processors as are directly affected by the\nmarketing order in such proportion of representation as the order shall\nprescribe. The commissioner may appoint one person who is neither a\nproducer, processor or other handler to represent the department of\nagriculture and markets, the corporation, or the public generally.\n (ii) No member of an advisory board shall receive a salary, but each\nshall be entitled to his or her actual expenses incurred while engaged\nin performing his or her duties herein authorized.\n (iii) The duties and responsibilities of each advisory board shall be\nprescribed by the president, in consultation with the commissioner, and\nhe or she shall specifically delegate to the advisory board, by\ninclusion in the marketing order, the following duties and\nresponsibilities:\n (A) The recommendation to the president of administrative rules and\nregulations relating to the marketing order.\n (B) Recommending to the president such amendments to the marketing\norder as deemed advisable.\n (C) The preparation and submission to the commissioner, in\nconsultation with the president, of the estimated budget required for\nthe proper operation of the marketing order.\n (D) Recommending to the president methods for assessing members of the\nindustry and methods for collecting the necessary funds.\n (E) Assisting the president in the collection and assembling of\ninformation and data necessary to the proper administration of the\norder.\n (F) The performance of such other duties in connection with the\nmarketing order as the president shall designate.\n 4. Rules and regulations; enforcement. The president, with the advice\nand consent of the advisory board, may make and promulgate such rules\nand regulations as may be necessary to effectuate the provisions and\nintent of this section and to enforce the provision of any marketing\nagreement or order, all of which shall have the force and effect of law.\n The president, in consultation with the commissioner may institute\nsuch action at law or in equity as may appear necessary to enforce\ncompliance with any provision of this section, or any rule or\nregulation, marketing agreement or order, committed to his or her\nadministration, and in addition may apply for relief by injunction if\nnecessary to protect the public interest without being compelled to\nallege or prove that an adequate remedy at law does not exist. Such\napplication may be made to the supreme court in any district or county\nas provided in the civil practice law and rules, or to the supreme court\nin the third judicial district.\n 5. Cooperation by the department. The president of the corporation may\nrequest and receive, within ninety days of such request, from the\ndepartment such assistance, information and cooperation as may be\nnecessary for the corporation to provide services with respect to the\nadministration of the procedures set forth for the issuance, termination\nor amendment of any agricultural, commodities or aquatic order and/or\nthe administration of any such order. The corporation shall retain an\namount equal to the expenses incurred by the corporation in performing\nits duties pursuant to this section and reimburse the department an\namount equal to the expenses incurred by the department in supplying\nsuch services, subsequent to submission and audit of a voucher therefor.\nSuch reimbursement shall not exceed the total amount of funds collected\nby the corporation pursuant to this section less the reasonable expenses\nincurred by the corporation in performing its duties pursuant to this\nsection.\n 6. Indemnification. The state shall defend, indemnify and hold\nharmless the corporation, its directors, officers, and employees, from\nand against any and all claims, demands, causes of action, damages,\ncosts and expenses whatsoever arising directly or indirectly from, or\nrelating to, the administration of any agricultural, commodities or\naquatic promotion order issued or administered pursuant to this section.\nIn connection with the foregoing, the corporation shall give the state\n(a) prompt written notice of any action, claim or threat of suit, (b)\nthe opportunity to take over, settle or defend such action, claim or\nsuit at the state's sole expense, and (c) assistance in the defense of\nany such action at the expense of the state.\n 7. Contractual provisions. The corporation may contract for services\nwith respect to the implementation of this section in accordance with\nthe corporation's policies, procedures and guidelines. Notwithstanding\nsection 2879 of the public authorities law or any other law to the\ncontrary, any such contract may be procured by the corporation on a\nsole-source basis, and shall not be subject to competitive bid or\ncompetitive request for proposal requirements.\n * NB Repealed July 31, 2026\n