Assembly Bill A11638

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  11638

                          I N  A S S E M B L Y

                              July 6, 2010
                               ___________

Introduced  by  COMMITTEE  ON  RULES -- (at request of M. of A. Koon) --
  read once and referred to the Committee on Agriculture

AN ACT to amend the agriculture and  markets  law  and  the  cooperative
  corporations law, in relation to establishing a dairy farmers' bill of
  rights

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The agriculture and markets law is amended  by  adding  two
new sections 256-c and 256-d to read as follows:
  S  256-C.  DAIRY  FARMERS' BILL OF RIGHTS; DECLARATION OF POLICY.  THE
EXPRESSED INTENT OF THE AGRICULTURE AND MARKETS LAW AND  THE  POLICY  OF
THIS STATE IS TO FOSTER AND ENCOURAGE THE MARKETING OF MILK THROUGH FAIR
AND HONEST MEANS. THE ORDERLY MARKETING OF MILK FOR THE BENEFIT OF FARM-
ERS,  MILK  DEALERS,  AND  CONSUMERS IS ENHANCED WHEN MILK PRODUCERS ARE
FREE TO MAKE AN INDEPENDENT UNCOERCED DECISION REGARDING  THEIR  PARTIC-
IPATION  IN COOPERATIVE ASSOCIATIONS, AS AUTHORIZED BY STATE AND FEDERAL
LAW.   INTERFERENCE IN THE EXERCISE OF THIS  FREE  RIGHT  OF  CHOICE  IS
CONTRARY  TO THE PUBLIC INTEREST. FOR THIS REASON, THE LEGISLATURE FINDS
THAT THE PUBLIC INTEREST REQUIRES  THAT  THERE  BE  A  SPECIFICATION  OF
PROHIBITED  UNFAIR  TRADE  PRACTICES  WHICH  HAVE  THE PURPOSE OF INTEN-
TIONALLY IMPAIRING A PRODUCER'S FREEDOM  TO  BARGAIN  COLLECTIVELY  WITH
OTHER  PRODUCERS IN THE MARKETING OF THE PRODUCER'S PRODUCT OR TO REMAIN
INDEPENDENT.
  FOR PURPOSES OF THIS SECTION, (I) AN  "ASSOCIATION  OF  PRODUCERS"  OR
"COOPERATIVE"  SHALL  MEAN  ANY  CORPORATION  OR  ASSOCIATION OF PERSONS
ENGAGED IN THE PRODUCTION OF MILK AND OPERATING FOR THE  MUTUAL  BENEFIT
OF ITS MEMBERS IN CONFORMITY WITH THE REQUIREMENT OF THE CAPPER-VOLSTEAD
ACT, AND ANY FEDERATION OF SUCH CORPORATIONS OR ASSOCIATIONS, OR OF SUCH
CORPORATIONS,  ASSOCIATIONS, AND INDIVIDUAL PRODUCERS, AND (II) AN ASSO-
CIATION OF PRODUCERS SHALL NOT BE CONSIDERED TO BE A MILK DEALER.
  S 256-D. UNFAIR PRACTICES BY DEALERS. 1. IT SHALL BE UNLAWFUL FOR  ANY
MILK  DEALER  OR  ANY OF ITS OFFICERS, MANAGERS, AGENTS, OR EMPLOYEES TO
INTENTIONALLY IMPAIR A PRODUCER'S FREEDOM  TO  JOIN,  NOT  JOIN,  OR  TO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08448-03-0
              

A. 11638                            2

PARTICIPATE  IN  AN ASSOCIATION OF PRODUCERS OR COOPERATIVE OR TO REMAIN
INDEPENDENT BY:
  (A)  COERCING,  THROUGH  THREAT OF INJURY TO PERSON OR PROPERTY, OR TO
HEALTH, SAFETY, BUSINESS OR FINANCIAL CONDITION, REPUTATION OR  PERSONAL
RELATIONSHIPS  ANY  PRODUCER IN THE EXERCISE OF HIS OR HER RIGHT TO JOIN
AND BELONG TO AN ASSOCIATION OF PRODUCERS OR COOPERATIVE  OR  TO  REMAIN
INDEPENDENT;
  (B) SOLICITING OR REQUESTING ANY PRODUCER TO BREACH A MARKETING AGREE-
MENT  OR OTHER CONTRACTUAL AGREEMENT BETWEEN THE PRODUCER AND AN ASSOCI-
ATION OF PRODUCERS OR COOPERATIVE;
  (C) MAKING A LOAN OR GIFT OF MONEY, OR OF ANYTHING ELSE OF  VALUE,  OR
OFFERING  TO MAKE SUCH A LOAN OR GIFT FOR THE SPECIFIC PURPOSE OF INDUC-
ING A PRODUCER TO REFUSE OR CEASE TO BELONG TO AN ASSOCIATION OF PRODUC-
ERS OR COOPERATIVE;
  (D) REFUSING TO DEAL WITH ANY PRODUCER, BECAUSE OF THE EXERCISE OF THE
PRODUCER'S RIGHT TO JOIN AND BELONG TO AN ASSOCIATION  OF  PRODUCERS  OR
COOPERATIVE OR TO REMAIN INDEPENDENT;
  (E)  MAKING FALSE REPORTS ABOUT THE FINANCES OR MANAGEMENT OF AN ASSO-
CIATION OF PRODUCERS OR OTHER MILK DEALERS IN RECKLESS DISREGARD OF  THE
TRUTH  OR  KNOWING  THAT  SUCH STATEMENTS ARE UNTRUE AND THAT THERE IS A
REASONABLE LIKELIHOOD THAT SUCH  STATEMENTS  WILL  IMPAIR  A  PRODUCER'S
RIGHT  TO  MAKE  AN  INDEPENDENT DECISION TO BELONG TO AN ASSOCIATION OF
PRODUCERS OR COOPERATIVE OR TO REMAIN INDEPENDENT; AND
  (F) CONSPIRING, COMBINING,  AGREEING,  OR  ARRANGING  WITH  ANY  OTHER
PERSON  TO  DO,  OR  AID AND ABET THE DOING OF, ANY ACT MADE UNLAWFUL BY
THIS SECTION.
  2. FOR PURPOSES OF THIS SECTION: (A) AN "ASSOCIATION OF PRODUCERS"  OR
"COOPERATIVE"  SHALL  MEAN  ANY  CORPORATION  OR  ASSOCIATION OF PERSONS
ENGAGED IN THE PRODUCTION OF MILK AND OPERATING FOR THE  MUTUAL  BENEFIT
OF  ITS  MEMBERS  IN CONFORMITY WITH THE REQUIREMENTS OF THE CAPPER-VOL-
STEAD ACT, AND ANY FEDERATION OF SUCH CORPORATIONS OR  ASSOCIATIONS,  OR
OF SUCH CORPORATIONS, ASSOCIATIONS, AND INDIVIDUAL PRODUCERS, AND (B) AN
ASSOCIATION OF PRODUCERS SHALL NOT BE CONSIDERED TO BE A MILK DEALER.
  3.  NOTHING  IN THIS SECTION IS INTENDED TO PREVENT BARGAINING BETWEEN
MILK DEALERS AND PRODUCERS OR ASSOCIATIONS OF PRODUCERS WITH RESPECT  TO
PRICE  OR ANY OTHER TERMS OF PURCHASE OR HANDLING OF MILK IN A COURSE OF
DEALING NOT PROSCRIBED BY THIS SECTION, NOR TO  PREVENT  PRODUCERS  FROM
REQUIRING  THAT  PAYMENT  BE MADE THROUGH AN ASSOCIATION OF PRODUCERS OR
COOPERATIVE.
  4. WHENEVER THE COMMISSIONER HAS REASON TO BELIEVE A VIOLATION OF THIS
SECTION HAS  OCCURRED,  THE  COMMISSIONER  MAY  COMMENCE  SUCH  JUDICIAL
ACTION, OR INSTITUTE SUCH INVESTIGATION OR PROCEEDING AND ISSUE AN ORDER
BASED  THEREON,  AS IS PROVIDED BY THIS ARTICLE OR ARTICLE THREE OF THIS
CHAPTER; PROVIDED, HOWEVER, THAT THE COMMISSIONER SHALL TAKE  NO  ACTION
AGAINST  A  MILK  DEALER UNDER SECTION TWO HUNDRED FIFTY-EIGHT-C OF THIS
ARTICLE FOR CONDUCT WHICH IS A VIOLATION OF  THIS  SECTION  UNLESS  SUCH
DEALER  IS AT THE TIME OF SUCH CONDUCT SUBJECT TO A FINAL ADMINISTRATIVE
OR JUDICIAL ORDER WHICH PROHIBITS  SUCH  CONDUCT  BY  SUCH  DEALER;  AND
PROVIDED  FURTHER THAT NOTHING CONTAINED IN THIS SECTION SHALL IMPAIR OR
DELAY THE PRIVATE RIGHT OF ACTION CREATED BY SECTION SEVENTY-FOUR OF THE
COOPERATIVE CORPORATIONS LAW FOR ANY VIOLATION OF THAT SECTION.
  5. MILK PRODUCERS ARE FREE  TO  NEGOTIATE  ANY  TRANSPORTATION-RELATED
COST  INCURRED  AFTER  A MILK PRODUCER'S RAW MILK LEAVES THE FARM OPERA-
TION, INCLUDING BUT NOT LIMITED TO HAULING  FEES,  STOP  FEES  AND  FUEL
SURCHARGES WITH A MILK DEALER.

A. 11638                            3

  S 2. Section 74 of the cooperative corporations law is amended to read
as follows:
  S  74. Liability for damages for encouraging or permitting delivery of
products in violation of marketing agreements.    Any  person,  firm  or
corporation who solicits or persuades or aids or abets any member of any
cooperative corporation incorporated under or subject to this chapter to
breach  his  marketing  contract  with  the  corporation by accepting or
receiving such member's products for sale, marketing,  manufacturing  or
processing  thereof  contrary to the terms of any marketing agreement of
which said person or any officer [or], manager, AGENT OR EMPLOYEE of the
said corporation has knowledge or notice, shall be liable in  the  penal
sum  of  [one  hundred]  NOT  MORE  THAN  TEN  THOUSAND dollars for each
contract, to the cooperative corporation aggrieved in a civil  suit  for
damages;  and  such  cooperative  corporation  shall  be  entitled to an
injunction against such person, firm or corporation to  prevent  further
breaches.
  S 3.  This act shall take effect immediately.