Legislation

* § 293. Powers and duties of the commissioner. 1. In order to
effectuate the declared policy of this article, the commissioner may,
after due notice and opportunity for hearing, approve marketing
agreements, which marketing agreements shall thereupon be binding upon
the signatories thereto exclusively.

2. The commissioner may make and issue marketing orders, after due
notice and opportunity for hearing, subject to:

(a) Approval of not less than sixty-six and two-thirds per centum of
the producers participating in a referendum in the area affected, or

(b) Approval of not less than sixty-five per centum of the producers
participating in a referendum vote, in the area affected, and having
marketed not less than fifty-one per centum of the total quantity of the
commodity which was marketed in the next preceding marketing season by
all producers that voted in the referendum, or

(c) Approval of not less than fifty-one per centum of the producers
participating in a referendum vote, in the area affected, and having
marketed not less than sixty-five per centum of the total quantity of
the commodity which was marketed in the next preceding marketing season
by all producers that voted in the referendum.

3. The commissioner may and upon written petition duly signed by
twenty-five per centum of the producers in the area shall, amend or
terminate such order after due notice and opportunity for hearing, but
subject to the approval of not less than fifty per centum of such
producers participating in a referendum vote.

4. The commissioner shall administer and enforce any marketing order,
while it is in effect, to:

(a) Encourage and maintain stable prices received by producers for
such agricultural commodity and aquatic product at a level which is
consistent with the provisions and aims of this article.

(b) Prevent the unreasonable or unnecessary waste of land or
water-based wealth.

(c) Protect the interests of consumers of such commodity, by
exercising the powers of this article to such extent as is necessary to
effectuate the purposes of this article.

(d) Prepare a budget for the administration and operating costs and
expenses including advertising and sales promotion when required in any
marketing agreement or order executed hereunder and to provide for the
collection of such necessary fees to defray such costs and expenses, in
no case to exceed five percent of the gross dollar volume of sales or
dollar volume of purchases or amounts handled, to be collected from each
person engaged in the production, processing, distributing or the
handling of any marketable agricultural commodity and aquatic product
produced or landed in this state and directly affected by any marketing
order issued pursuant to this article for such commodity.

(e) Confer and cooperate with the legally constituted authorities of
other states and the United States.

5. Any marketing agreement or order issued by the commissioner
pursuant to this article may contain any or all of the following:

(a) Provisions for determining the existence and extent of the surplus
of any agricultural commodity, or of any grade, size, or quality
thereof, and providing for the regulation and disposition of such
surplus.

(b) Provisions for limiting the total quantity of any agricultural
product, or of any grade or grades, size or sizes, or quality or
portions or combinations thereof, which may be marketed during any
specified period or periods. Such total quantity of any such commodity
so regulated shall not be less than the quantity which the commissioner
shall find is reasonably necessary to supply the market demand of
consumers for such commodity.

(c) Provisions regulating the period, or periods, during which any
agricultural commodity, or any grade or grades, size or sizes or quality
or portions or combinations of such commodity, may be marketed.

(d) Provisions for the establishment of uniform grading, standards,
and inspection of any agricultural commodity delivered by producers or
other persons to handlers, processors, distributors or others engaging
in the handling thereof, and for the establishment of grading or
standards of quality, condition, size, maturity or pack for any
agricultural commodity, and the inspection and grading of such commodity
in accordance with such grading or standards so established; and for
provisions that no producer, handler, processor or distributor of any
agricultural commodity for which grading or standards are so established
may, except as otherwise provided in such marketing agreement or order,
sell, offer for sale, process, distribute or otherwise handle any such
commodity whether produced within or without this state, not meeting and
complying with such established grading or standards. For the purposes
of this article, the federal-state inspection service shall perform all
inspections made necessary by such provisions.

(e) Provisions for the establishment of research programs designed to
benefit a specified commodity or New York agriculture in general.

(f) Such other provisions as may be necessary to effectuate the
declared policies of this article.

(g) Provisions to establish marketing promotion and research programs
for aquatic products which may include paragraphs (a) through (f) of
this subdivision.

6. The commissioner may temporarily suspend the operation of an
effective marketing order for a continuing period of no longer than one
growing and marketing season, if the purposes of this article are deemed
unnecessary during such season.

7. In carrying out the purposes of this article, the commissioner
shall take into consideration any and all facts available to them with
respect to the following economic factors:

(a) The quantity of such agricultural commodity available for
distribution.

(b) The quantity of such agricultural commodity normally required by
consumers.

(c) The cost of producing such agricultural commodity.

(d) The purchasing power of consumers.

(e) The level of prices of commodities, services, and articles which
the farmers commonly buy.

(f) The level of prices of other commodities which compete with or are
utilized as substitutes for such agricultural commodity.

8. The execution of such marketing agreements shall in no manner
affect the issuance, administration or enforcement of any marketing
order provided for in this article. The commissioner may issue such
marketing order without executing a marketing agreement or may execute a
marketing agreement without issuing a marketing order covering the same
commodity. The commissioner, in their discretion, may hold a concurrent
hearing upon a proposed marketing agreement and a proposed marketing
order in the manner provided for giving due notice and opportunity for
hearing for a marketing order as provided in this article.

9. Prior to the issuance, amendment or termination of any marketing
order, the commissioner may require the applicants for such issuance,
amendment, or termination to deposit with them such amount as they may
deem necessary to defray the expenses of preparing and making effective
amending or terminating a marketing order. Such funds shall be received,
deposited, and disbursed by the commissioner in the same manner as other
fees received by the commissioner under this article and, in the event
the application for adoption, amendment or termination of a marketing
order is approved in a referendum, the commissioner shall reimburse any
such applicant in the amount of any such deposit from any unexpended
monies collected under the marketing order affected by such referendum.

10. Any moneys collected by the commissioner pursuant to this article
shall not be deemed state funds and shall be deposited in a bank or
other depository in this state, approved by the commissioner, allocated
to each marketing order under which they are collected, and shall be
disbursed by the commissioner only for the necessary expenses incurred
by the commissioner with respect to each such separate marketing order,
all in accordance with the rules and regulations of the commissioner.
All such expenditures shall be audited by the state comptroller at least
annually and within thirty days after the completion thereof the state
comptroller shall give a copy thereof to the commissioner. Any moneys
remaining in such fund allocable to any particular commodity affected by
a marketing order may, in the discretion of the commissioner, be
refunded at the close of any marketing season upon a pro-rata basis to
all persons from whom assessments therefor were collected or, whenever
the commissioner finds that such moneys may be necessary to defray the
cost of operating such marketing order in a succeeding marketing season,
they may carry over all or any portion of such moneys into the next such
succeeding season. Upon the termination by the commissioner of any
marketing order, all moneys remaining and not required by the
commissioner to defray the expenses of operating such marketing order,
shall be refunded by the commissioner upon a pro-rata basis to all
persons from whom assessments therefor were collected; provided,
however, that if the commissioner finds that the amounts so refundable
are so small as to make impracticable the computation and refunding of
such refunds, the commissioner may use such moneys to defray the
expenses incurred by the commissioner in the formulation, issuance,
administration or enforcement of any subsequent marketing order for such
commodity.

11. Advisory board. (a) Any marketing order issued pursuant to this
article shall provide for the establishment of an advisory board, to
consist of not less than five members nor more than nine members, to
advise the commissioner in the administration of such marketing order in
accordance with its terms and provisions. The members of such board
shall be appointed by the commissioner from nominations received from
the commodity group for which the marketing order is established.
Nominating procedure, qualification, representation, and size of the
advisory board shall be prescribed in each marketing order for which
such board is appointed. Each advisory board shall be composed of such
producers and handlers or processors as are directly affected by the
marketing order in such proportion of representation as the order shall
prescribe. The commissioner may appoint one person who is neither a
producer nor processor nor other handler to represent the department of
agriculture and markets or the public generally.

(b) No member of an advisory board shall receive a salary, but each
shall be entitled to reimbursement for the member's actual expenses
incurred while engaged in performing the member's duties herein
authorized.

(c) The duties and responsibilities of each advisory board shall be
prescribed by the commissioner, and they may specifically delegate to
the advisory board, by inclusion in the marketing order, all or any of
the following duties and responsibilities:

(i) The recommendation to the commissioner of administrative rules and
regulations relating to the marketing order.

(ii) Recommending to the commissioner such amendments to the marketing
order as seem advisable.

(iii) The preparation and submission to the commissioner of the
estimated budget required or the proper operation of the marketing
order.

(iv) Recommending to the commissioner methods for assessing members of
the industry and methods for collecting the necessary funds.

(v) Assisting the commissioner in the collection and assembling of
information and data necessary to the proper administration of the
order.

(vi) The performance of such other duties in connection with the
marketing order as the commissioner shall designate.

* NB Effective July 1, 2026