§ 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 orportions 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 marketingorder 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
§ 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 orportions 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 marketingorder 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
§ 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 orportions 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 marketingorder 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
