Section 294. 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
    (i) approval of not less than sixty-six and two-thirds per  centum  of
  the producers participating in a referendum in the area affected, or
    (ii)  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 flfty-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
    (iii) 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.
    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.
    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 act.
    (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 act.
    (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 per cent 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.
    * (f)  Insure  the marketing rights of producers, including good faith
  bargaining between producers or associations of producers and processors
  or handlers through a joint settlement committee pursuant to subdivision
  ten of this section.
    * NB Expired January 1, 1987
    (3) 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)  Provisions  to  allow for growers or associations of growers to
  bargain in good faith  with  processors  or  handlers  through  a  joint
  settlement committee pursuant to subdivision ten of this section.
    * NB Expired January 1, 1987
    (g)  Such  other  provisions  as  may  be  necessary to effectuate the
  declared policies of this article.
    (h) Provisions to establish marketing promotion and research  programs
  for  aquatic  products  which  may include paragraphs (a) through (g) of
  this subdivision.
    (4) The commissioner may  temporarily  suspend  the  operation  of  an
  effective marketing order for a continuing period of not longer than one
  growing and marketing season, if the purposes of this article are deemed
  unnecessary during such season.
    (5)  In  carrying  out  the purposes of this article, the commissioner
  shall take into consideration any and all facts available  to  him  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.
    (6) 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 his 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.
    (7)  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 him such amount as he 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  him  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.
    (8) 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,
  he  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 him in the formulation, issuance, administration or
  enforcement of any subsequent marketing order for such commodity.
    (9) 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 said 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 his  actual  expenses  incurred  while  engaged  in
  performing his duties herein authorized.

    (c)  The  duties  and responsibilities of each advisory board shall be
  prescribed by the commissioner, and he may specifically delegate to  the
  advisory  board,  by inclusion in the marketing order, all or any of the
  following duties and responsibilities:
    1.  The recommendation to the commissioner of administrative rules and
  regulations relating to the marketing order.
    2. Recommending to the commissioner such amendments to  the  marketing
  order as seem advisable.
    3. The preparation and submission to the commissioner of the estimated
  budget required for the proper operation of the marketing order.
    4.  Recommending  to the commissioner methods for assessing members of
  the industry and methods for collecting the necessary funds.
    5. Assisting the commissioner in  the  collection  and  assembling  of
  information  and  data  necessary  to  the  proper administration of the
  order.
    6. The performance  of  such  other  duties  in  connection  with  the
  marketing order as the commissioner shall designate.
    * (10) (a) If a marketing order is established for processed apples in
  the counties of Niagara, Orleans, Monroe, Wayne and Ontario, pursuant to
  this  section,  the  commissioner  by  July fifteenth of each year shall
  appoint  a  joint  settlement  committee  to   facilitate   good   faith
  bargaining.  In  the  event  that price and other contract terms are not
  agreed upon by the bargaining process by October first of each year  the
  joint  settlement  committee shall recommend to the commissioner a price
  and such other terms as designated by the order.  The  joint  settlement
  committee  recommendations will be final and binding upon all producers,
  processors and handlers  subject  to  the  marketing  order  unless  the
  commissioner finds that they are not in accordance with paragraph (b) of
  this  subdivision  and  the  intent of this article in which case he may
  modify  the  recommendations.  Such  order  may  authorize   the   joint
  settlement  committee  to prescribe procedures to facilitate agriculture
  bargaining  between  representatives  of   producers,   processors   and
  handlers,   including   procedures   in   the  selection  of  bargaining
  representatives and remedies for failure to bargain in good faith.
    (b) The joint settlement committee shall base its recommendations upon
  the following factors:
    i. Prices or projected prices for the agricultural commodity  paid  by
  competing  handlers or processors in the market area or competing market
  areas;
    ii. Amount of the commodity produced or projections of  production  in
  the production area or competing marketing areas;
    iii.  Relationship  between  the  quantity  produced  and the quantity
  handled by the handlers and processors;
    iv. The producers' cost of production;
    v. The average consumer prices for goods and services, commonly  known
  as the cost of living;
    vi.  The  impact of the joint settlement committees recommendations on
  the competitive position of the handlers and processors in the marketing
  area or competing areas;
    vii. The impact of the  award  on  the  competitive  position  of  the
  agricultural commodity in relationship to competing commodities;
    viii. A fair return on investment;
    ix. Kind, quality or grade of the commodity involved;
    x.  The  carryover  inventory of the commodity from previous marketing
  periods; and
    xi. Such other factors which are normally or traditionally taken  into
  consideration in determining prices, quality, quantity, and the costs of
  other services involved.

    * NB Expired January 1, 1987