NY-AGM Agriculture & Markets Law NY

Short title. This chapter shall be known as the agriculture and

markets law.

Definitions. When used in this chapter, unless otherwise

expressly stated, or unless the context or subject matter otherwise

requires:

1. "Department" means the state department of agriculture and markets;

2. "Commissioner" means the commissioner of agriculture and markets.

3. The terms "food" and food "products," shall include all articles of

food, drink, confectionery or condiment, whether simple, mixed or

compound, used or intended for use by man or animals, and shall also

include all substances or ingredients to be added to food for any

purpose;

4. The production of foods means the producing of food upon the farm

or elsewhere by the tillage of the soil, the commercial raising,

shearing, feeding and management of animals or other agricultural,

horticultural, ranching or dairying processes and shall also include the

manufacture of foods.

5. "Farm product" means any agricultural, dairy or horticultural

product, or any product designed for food manufactured or prepared

principally from an agricultural, dairy or horticultural product and the

commercial raising, shearing, feeding and management of animals on a

ranch.

Declaration of policy and purposes. The agricultural industry is

basic to the life of our state. It vitally concerns and affects the

welfare, health, economic well-being and productive and industrial

capabilities of all our people. It is the policy and duty of the state

to promote, foster, and encourage the agricultural industry, with proper

standards of living for those engaged therein; to design and establish

long-range programs for its stabilization and profitable operation; to

increase through education, research, regulation, and scientific means,

the quantity, quality, and efficiency of its production; to improve its

marketing system; to encourage adequate and skilled assistance for

agricultural enterprises; to maintain at fair prices uncontrolled by

speculation the instrumentalities and products of agriculture; to remove

unnecessary or unfair costs and obstacles in the transportation,

storage, processing, distribution, marketing, and sale of agricultural

products; to prevent frauds in the traffic therein; to promote an

expanded demand for the state's agricultural products and the

intelligent uses thereof by consumers as pure and wholesome food; to

protect the public health and to eliminate the evils of

under-nourishment; to encourage the selection and consumption of food

according to sound dietary and nutritional principles; to improve our

citizens' overall health and to combat the increasing incidence of adult

and childhood obesity; and to make our people conscious of the bond of

mutual self-interest between our urban and our rural populations.

Accordingly, all laws enacted concerning the agricultural industry and

its allied subjects, whether included in this chapter or not, are to be

deemed an exercise of the police power of the state and a discharge of

its obligations for the promotion of the general welfare through

state-wide laws and regulations, local initiative and government,

cooperative action between groups and localities, home-rule measures,

individual enterprise, civic consciousness, and appropriate coordination

with the federal government and as between educational research

institutions within the state.

Such laws and all governmental measures adopted pursuant thereto

should receive a liberal interpretation and application in furtherance

of the aforesaid policy and purposes.

Department of agriculture and markets. There shall continue to

be in the state government a department of agriculture and markets.

Commissioner of agriculture and markets. The head of the

department of agriculture and markets shall be the commissioner of

agriculture and markets, who shall be appointed by the governor, by and

with the advice and consent of the senate, and hold office until the end

of the term of the governor by whom he was appointed, and until his

successor is appointed and has qualified. He shall be a person

qualified by training and experience for the duties of his office.

Subject to removal by the governor, the commissioner of agriculture and

markets in office at the time this section takes effect shall be the

head of the department of agriculture and markets and shall hold such

office until his successor is appointed and has qualified. In addition

to the powers and duties specifically prescribed by this chapter, the

commissioner shall have supervision over and direction of all officers

and employees and of the affairs of the department. He shall be

responsible for the enforcement and carrying into effect of the laws,

rules and orders pertaining to matters as to which the department has

functions, powers and duties.

Deputy commissioners. The commissioner may appoint and at

pleasure remove such deputies and other officers and assistants as he

may find necessary, and assign them the work which shall be under their

respective supervision, and fix their compensation within the amounts

appropriated therefor, subject to the approval of the director of the

budget. Each of such deputies, officers and assistants shall be a

person qualified by training and experience for the performance of the

duties so assigned to him.

Secretary. There shall be a secretary of the department to be

appointed by the commissioner and who shall serve during the pleasure of

the commissioner.

Counsel. There shall be a counsel of the department to be

appointed by the commissioner and who shall serve during the pleasure of

the commissioner. The counsel of the department shall represent and

appear for the department in all actions and proceedings involving any

question under this chapter or within the jurisdiction of the department

under any general or special law or under or in reference to any act,

order or proceeding of or before the commissioner, and shall, when

directed, intervene, if possible, in behalf of the department in any

action or proceeding involving or relating to any matter within the

jurisdiction or powers of the department as herein prescribed, except

that the attorney-general of the state shall continue to have direct

charge of and bring such actions as he may deem necessary for any and

all violations of this chapter. The said counsel shall, also, act as

counsel for any officer of the department in the conduct of a hearing,

investigation or inquiry instituted under authority of the department or

as provided in this chapter. He shall advise the commissioner or any

officer of the department, when so requested, in regard to all matters

in connection with their powers and duties, and perform generally all

duties and services as counsel of the department which may reasonably be

required of him.

Bureaus. Existing bureaus in the department are continued until

consolidated or abolished pursuant to this section. The commissioner may

establish such divisions, bureaus, and other units within the department

as may be necessary for the administration and operation of the

department and the proper exercise of its powers and the performance of

its duties, under this chapter, and may, from time to time, consolidate

or abolish such divisions, bureaus or other units within the department.

Notwithstanding any inconsistent provision of law, the commissioner may

determine the official functions of each division, bureau, or other unit

within the department. There shall be a director of each bureau to be

appointed by the commissioner and who shall serve during the pleasure of

the commissioner. The directors of bureaus in the department who are in

office when this chapter takes effect shall continue in office during

the pleasure of the commissioner.

Confidential positions. The deputy commissioners, secretary and

counsel shall be deemed to occupy confidential positions to the

commissioner, and may be appointed without competitive examination.

Other officers and employees. There shall be such agents,

inspectors, chemists, experts, statisticians, accountants and other

assistants and employees, as the commissioner shall deem necessary for

the exercise of the powers and the performance of the duties of the

department under this chapter.

Such officers and employees shall be appointed by the commissioner and

hold office during the pleasure of the commissioner. The officers and

employees of the department who are in office when this chapter takes

effect shall continue in office during the pleasure of the commissioner.

The commissioner may transfer officers or employees from their

positions to other positions in the department, or abolish or

consolidate such positions.

Prior to the appointment of inspectors and investigators by the

department, applicants for such positions shall be fingerprinted as a

condition of employment. Such fingerprints shall be submitted to the

division of criminal justice services for a state criminal history

record check, as defined in subdivision one of section three thousand

thirty-five of the education law, and may be submitted to the federal

bureau of investigation for a national criminal history record check.

Oaths of office. The commissioner, the deputy commissioners, the

counsel and the secretary shall, before entering upon the duties of

their offices, take and subscribe the constitutional oath of office.

Such oaths shall be filed in the office of the secretary of state.

Salaries of officers; expenses. The annual salaries and

compensation of the deputy commissioners, the counsel, secretary and all

other officers and employees of the department shall be fixed by the

commissioner within the limits of appropriations made therefor.

The reasonable and necessary traveling and other expenses of the

commissioner, deputy commissioners, secretary, counsel and other

officers and employees of the department, while actually engaged in the

performance of their duties, shall be paid in accordance with the rules

and regulations of the department of audit and control from the state

treasury upon the audit of the comptroller, upon vouchers approved by

the commissioner.

Offices of department. The principal office of the department

shall be in the county of Albany in office space to be designated by the

commissioner of general services pursuant to law. Branch offices shall

be established and maintained by the department in such places as the

commissioner of agriculture and markets may determine. The offices

shall be supplied with all necessary books, stationery, office equipment

and furniture, to be furnished and paid for in the manner provided by

law.

Seal of department. The department shall have an official seal,

to be prepared and furnished by the secretary of state, as provided by

law. Such seal shall be used for the authentication of the orders and

proceedings of the commissioner and for such other purposes as the

commissioner may prescribe.

General powers and duties of department. The department through

the commissioner shall have power to:

1. Execute and carry into effect the laws of the state and the rules

of the department, relative to agriculture, horticulture, farm, fruit,

and dairy products, aquaculture, and the production, processing,

transportation, storage, marketing and distributing of food; enforce and

carry into effect the provisions of the laws of the state relative to

weights and measures.

2. Aid in the promotion and development of the agricultural resources

of the state and the improvement of the conditions of rural life; the

improvement of the fertility and productiveness of farm lands and the

restoration to fertility and productiveness of unoccupied and

unproductive land; the settlement of farms and the supply of farm labor;

the stocking of farms with meat-producing and dairy animals and

promoting the production of cereals, fruits and vegetables, and

co-operate with county farm bureaus, and with agricultural, dairying and

horticultural associations or corporations and other agencies organized

for any or all of such purposes.

2-a. Aid in the promotion and marketing of finfish and shellfish

derived from commercial fishing or aquacultural activities and cooperate

with fishing and aquaculture associations or corporations organized for

any or all such purposes.

2-b. Aid in the promotion, marketing, and sale of New York state

labelled wines, grapes and grape products in cooperation with the

department of economic development both within and outside the state and

to provide promotion and marketing advisement to wineries, farm

wineries, micro-wineries, grape and other fruit growers and processors,

and related trade organizations located within this state.

2-c. Aid in the export promotion and marketing of eligible

agricultural products, in cooperation with the department of economic

development.

2-d. Coordinate with the office of general services and the department

of economic development to provide a training program once per year, in

each economic development region, established in article eleven of the

economic development law, to encourage and increase participation in the

procurement process, pursuant to article eleven of the state finance

law, by small businesses, as defined in section one hundred thirty-one

of the economic development law, including farms, selling food or food

products, or animal or plant fiber products grown, produced, harvested,

or processed in New York state or textile products manufactured from

animal or plant fiber grown or produced predominantly in New York state

and assist such businesses in identifying such food or food products, or

animal or plant fiber textile products, which may help to meet state

agencies' needs. The departments and office may also invite to the

regional training programs representatives of local governments,

including school districts, that may be interested in purchasing New

York state food products or animal or plant fiber textile products.

2-e. Develop, and update, guidance and other information to:

(i) assist county legislative bodies, agricultural and farmland

protection boards and departments in creating and reviewing agricultural

districts pursuant to sections three hundred three, three hundred

three-a and three hundred three-b of this chapter; and

(ii) assist the commissioner of taxation and finance to support

training of assessors and any other local government officials who have

responsibility for agricultural assessment and taxation.

2-f. Aid in the promotion, marketing and sale of New York state farm

products used for holiday celebrations and decorations, including, but

not limited to, Christmas trees, wreaths, pumpkins, flowers and other

similar products in cooperation with the empire state development

corporation by providing listings of such growers and suppliers to

vendors selling such products and to municipalities that may provide

such information to vendors selling such products on municipal

sidewalks, lots or streets.

2-g. Aid, in cooperation with the department of economic development,

in the promotion, marketing and sale, both within and outside the state,

of New York state animal and plant fiber and products made from such

fiber. For the purposes of this subdivision animal fiber means natural

fibers that have formed the covering, or fleece, of sheep or other hairy

animals such as goats or alpacas, shorn for the purposes of creating

textile products, and plant fiber means natural fibers that are obtained

from plants and used to create textile products including, but not

limited to, hemp. Such aid shall include, but not be limited to:

(a) the opportunity for producers of animal and plant fibers in the

state to participate in programs that offer seals or logos identifying

such fibers as grown in New York state and certified for their quality,

for product labeling, advertising, and displays; and

(b) the development of educational materials about animal and plant

fiber, especially for young people, in cooperation with cooperative

extension, boards of cooperative educational services, local fairs, and

the state fair.

* 2-h. In cooperation with the department of environmental

conservation, offer seals or logos identifying native plants as grown in

New York state and certified for their quality, product labeling,

advertising, and displays. The department, in cooperation with the

department of environmental conservation, shall establish appropriate

standards and guidelines for such designation. The department shall

further provide educational materials promoting awareness and

understanding of native plants under the New York native plants

designation to horticultural producers, garden centers, consumers,

educational institutions, Cornell cooperative extension, and relevant

agricultural and environmental organizations. For the purposes of this

subdivision, "native plants" shall mean non-invasive herbaceous and

woody plant species that are indigenous to New York state and are likely

to maintain their range or successfully adapt to anticipated climate

changes in New York state and the northeastern United States.

* NB Effective and Repealed December 19, 2026

3. Investigate the cost of food production and marketing in all its

phases.

4. Investigate the sources of food supply for the state, the

production, transportation, storage, marketing and distribution of food

sold, offered for sale, stored or held within the state, the cost of

transportation to the leading centers of population and of distribution

to consumers.

5. Collect and disseminate accurate data and statistics as to the food

produced, stored or held within the state, the quantities available from

time to time and the location thereof, and so far as practicable and

available collect such like statistics from without the state, as are of

value to producers and consumers within the state.

5-a. Establish an information network between agricultural producers

and consumers to facilitate and promote the direct marketing of New York

farm products. The commissioner may publicize such direct marketing

information network. He may compile information voluntarily provided by

farmers and growers who desire to sell farm products directly to

consumers, and distribute such information, in the manner he deems

appropriate, to food buying cooperatives, governmental agencies,

community service organizations, the bureau of government-donated foods

distribution in the office of general services, the cooperative

extension service, and to any person requesting such information.

5-b. (a) Establish, in cooperation with the commissioner of education,

a farm-to-school program to facilitate and promote the purchase of New

York farm products by schools, universities and other educational

institutions under the jurisdiction of the education department. The

department shall solicit information from the education department

regarding school districts and other educational institutions interested

in purchasing New York farm products, including but not limited to, the

type and amount of such products schools wish to purchase and the name

of the appropriate contact person from the interested school district.

The department shall make this information readily available to

interested New York farmers, farm organizations and businesses that

market New York farm products. The department shall provide information

to the education department and interested school districts and other

educational institutions about the availability of New York farm

products, including but not limited to, the types and amount of

products, and the names and contact information of farmers, farm

organizations and businesses marketing such products. The commissioner

shall report to the legislature on the need for changes in law to

facilitate the purchases of such products by schools and educational

institutions.

The department shall also coordinate with the education department,

and school food service, education, health and nutrition, farm, and

other interested organizations in establishing a promotional event, to

be known as New York Harvest For New York Kids Week, in early October

each year, that will promote New York agriculture and foods to children

through school meal programs and the classroom, at farms and farmers'

markets and other locations in the community.

(b) Cooperate with the department of health in implementing the

childhood obesity prevention program pursuant to title eight of article

twenty-five of the public health law and with the commissioner of

education to encourage the production and consumption of fresh locally

produced fruits and vegetables by elementary and secondary school aged

children pursuant to paragraph (a) of this subdivision to help combat

the increasing incidence of childhood obesity.

(c) Cooperate with federal, other state and municipal agencies to

encourage the expansion of community gardens pursuant to article two-C

of this chapter to help encourage the production and consumption of

fresh locally produced fruits and vegetables to help combat the

increasing incidence of adult and child obesity.

5-c. Cooperate with the commissioner of education, pursuant to

subdivision fifty-six of section three hundred five of the education

law, to develop guidelines for the voluntary implementation by school

districts and institutions of higher education of programs which

encourage the donation of excess, unused, edible food from meals served

at such educational facilities to local voluntary food assistance

programs.

6. Investigate and recommend useful methods of co-operative

production, marketing and distribution of foods within the state.

6-a. Establish the New York state council on hunger and food policy.

The purpose of the council shall be to advise the state on the

development of comprehensive, coordinated state food policies with the

goal of: ensuring that all citizens of the state are able to eat a

healthy diet and avoid food insecurity while consuming New York grown

and produced foods as much as possible. The council shall work to:

support and facilitate the growth of a New York-based local farm and

food product economy that revitalizes rural, suburban and urban

communities, creates jobs, and supports economic growth through

promoting and developing local farm and food businesses and their

products and helps to make them more available to New York residents;

and promote healthy eating through a plentiful, accessible, affordable,

safe and nutritious food supply with access to fresh and minimally

processed foods including a readily available supply of such food during

emergencies.

(a) The priorities of the council shall include, but are not limited

to, developing and recommending policies and plans to:

(i) ensure the availability of and expand access to an adequate supply

of affordable, fresh and nutritious food to its residents;

(ii) expand agricultural production and processing, including

locally-grown and organically-grown food;

(iii) assist local farm and food businesses to succeed and grow,

especially beginning and new owners and those historically

underrepresented or marginalized in agriculture or the food industry, to

identify and secure necessary resources and equipment to begin,

maintain, and expand projects and networks necessary for the development

of local farm or food products;

(iv) reduce barriers affecting food-insecure populations in rural and

urban spaces;

(v) facilitate the building of infrastructure, including, but not

limited to, aggregation, processing, storage, packaging, distribution,

and marketing facilities necessary to move local farm or food products

to local and other markets;

(vi) support and expand programs that recruit, train, and provide

technical assistance to New York farmers, food producers, food

processors and residents in order to encourage the production and

processing of local farm or food products;

(vii) coordinate interagency programs, initiatives, and procedures

promoting local farm and food products in New York communities, by

working with and involving state, federal, and local agencies, as well

as community-based organizations, educational institutions, and trade

organizations in executing the purposes of this section;

(viii) eliminate statutory and legal barriers hindering the

development of a local farm and food economy by working with federal,

state, and local agencies, other agencies and applicable entities, to

ensure consistent and compatible laws and regulations for the

production, processing, storage, distribution, and marketing of local

farm or food products;

(ix) facilitate the use of public lands for growing local farm or food

products by working with governmental entities at the local, state, and

federal levels;

(x) initiate and facilitate public awareness campaigns about the

economic benefits of a local farm and food economy;

(xi) improve access to nutrition assistance programs and

transportation options, enhance infrastructure, and decrease

socio-economic disparities that contribute to the prevalence of food

insecurity;

(xii) alleviate geographic and economic barriers to improve access to

healthy fresh food and reduce hunger among New Yorkers;

(xiii) eliminate barriers impacting a consumer's ability to purchase

healthy food; and

(xiv) encourage state agencies and community partners to share ideas

for reducing food-related chronic disease and promoting well-balanced

child nutrition.

(b) The council shall consist of twenty-five members designated by the

commissioner as follows: (i) the commissioner, the commissioner of

health, the commissioner of the office of temporary and disability

assistance, the commissioner of education, the commissioner of the

department of economic development, and the director of the office for

the aging;

(ii) eight members with experience and expertise related to

agriculture, nutrition, or food policy, of which four shall be

designated on the recommendation of the legislative leaders, one each by

the temporary president of the senate, the speaker of the assembly, the

minority leader of the senate, and the minority leader of the assembly;

(iii) the dean of the New York state college of agriculture and life

sciences;

(iv) one member representing farm organizations;

(v) one member representing school food administrators;

(vi) one member representing consumers;

(vii) two members representing an organization that provides food

assistance;

(viii) one member representing anti-hunger advocates;

(ix) one member who is a nutritionist; and

(x) three members representing the food industry, including producers,

distributors, processors or retailers who are residents of and work in

the state of New York, at least one of whom produces organic food.

(c) The commissioner shall serve as the chairperson of the council.

(d) The council shall issue a written report on the thirtieth day of

January each year on: (i) the activities of the council during the

preceding year; (ii) recommended food policies and actions for the

state; (iii) an account of the progress made in achieving the goals of

the council; and (iv) actions which are necessary to implement the

recommendations of the council and effectuate its purposes.

(e) The state governmental agencies represented on the council may

re-direct existing staff, as appropriations permit; assist in executing

the purposes of this subdivision; and provide office space, meeting

space, and other research and communication services as appropriate.

(f) No member of the council shall be disqualified from holding any

public office or employment, nor shall he or she forfeit any such office

or employment by virtue of his or her appointment hereunder. Members of

the council shall receive no compensation for their services but shall

be allowed their actual and necessary expenses incurred in the

performance of their functions hereunder.

(g) The council shall set forth the time and place of its meetings and

meet as frequently as business requires, but shall meet at least twice

each year.

(h) Every agency, department, office, division or public authority of

the state shall cooperate with the council and furnish such information

and assistance as the council determines is reasonably necessary to

accomplish its purpose.

7. Aid in the organization and operation of co-operative associations

and corporations among producers and consumers of farm products, and

also aid in the organization and operation of co-operative associations,

corporations or other agencies for the purpose of increasing the

production, improving the quality, grading or bringing together of farm

products for wholesale marketing.

7-a. Call conferences of co-operative associations of producers of

farm products organized under or subject to the provisions of chapter

seventy-seven of the consolidated laws for discussion of cost of

production, transportation and marketing, of market conditions and

prices for sale of farm products to the end that the marketing operating

operations for such co-operative associations may be facilitated, made

more efficient and the producers may obtain the reasonable cost of

production, plus cost of compliance with sanitary regulations affecting

production or marketing. Such conferences shall be held under the

supervision of the commissioner. Neither such conferences nor any

agreements or arrangements resulting therefrom, if such agreements or

arrangements are approved by the commissioner, shall be deemed or

construed to be acts, conspiracies, agreements or arrangements in

restraint of trade or commerce or injurious to public welfare. The

powers hereby conferred may also be exercised in conjunction with

officials or representatives of the federal government.

8. Co-operate with and aid farmers and other producers of food, and

distributors and consumers thereof, in improving and maintaining

economic and efficient systems of production, storage, distribution and

marketing, and in reaching advantageous markets. The commissioner may

develop, coordinate and conduct programs for advertising, publicity and

general promotion of agricultural and food products grown, processed,

packed or otherwise made within the state. The commissioner may

establish a voluntary program for the improvement of direct marketing of

New York farm products at roadside farm markets. The commissioner may

adopt a word or symbol to identify roadside markets participating in

such program, advertise and publicize the roadside farm market program,

and provide technical and promotional assistance to effectuate said

program. The commissioner may charge fees for the sale or use of

promotional materials or items, and any income derived from such

programs shall be deposited in a special account of the farm products

publicity fund established under section one hundred fifty-six-i of this

chapter. Any expenses incurred in the conduct of such programs may be

paid out of such account on vouchers approved by the commissioner, after

audit by the comptroller.

9. Acquire and disseminate accurate information as to market prices of

food products, and market conditions, in the markets of the state and

any other markets, through use of department market reporters, or

agreements with organized groups of producers or shippers or dealers in

farm produce for the joint employment of market reporters, or special

arrangements with existing market reporting agencies, when in the

judgment of the commissioner such information will be valuable to the

producers or consumers of the state.

10. Acquire and publish useful information to facilitate

transportation, to avoid delays therein and upon request advise shippers

or purchasers as to the most direct and expeditious route of shipment to

market.

11. Co-operate with the commissioner of transportation with the view

of obtaining suitable, expeditious and economical facilities for the

shipment of food, and recommend as to the action to be taken by such

commissioner to avoid and prevent unfair discrimination in such shipment

and unreasonable delay in the transportation thereof, and to obtain fair

and reasonable rates for such transportation.

12. Investigate delays in transportation, and in case food is likely

to spoil for lack of ready market, take such action as seems advisable

for facilitating the sale thereof.

13. Investigate restraints of trade or unlawful combinations to fix

prices.

14. Investigate as to the needs of terminal, dock and other

distributing facilities for the delivery and distribution of foods at

the centers of population, and the establishment and operation of

co-operative or public abattoirs for the slaughter of animals and

poultry for food purposes; and advise and co-operate with corporations

and municipalities or other agencies to promote their establishment,

construction or acquisition for the public use and make recommendations

as to the conduct thereof.

15. Advise and co-operate in establishing local markets, and

warehouses for assembling, grading, packing and storing food or farm

products, whenever in the judgment of the commissioner the public

interests require such establishment.

16. Co-operate with producers in the conduct of experiments and

disseminate information as to producing, assembling, grading, packing,

distributing and selling farm products, so as to demonstrate economic

and efficient methods, and to standardize the grades of such products

and determine the cost of such production, assembling, grading, packing,

distribution and sale.

17. Investigate plans to be established by law for the purpose of

securing an ample supply of pure milk in centers of population upon an

economic basis of distribution and to aid in the accomplishment of such

purpose within the provisions of existing law.

18. Ascertain the names and addresses of producers, manufacturers,

importers, exporters and potential exporters and distributors of food,

the kind of food produced, manufactured, imported, exported or to be

exported or distributed by such persons, and to publish the same

whenever in the judgment of the commissioner public interests require

or, upon request, when in the public interest, supply lists of such

persons.

19. Make such recommendations as in the judgment of the commissioner

will stimulate and increase the production or distribution or sale of

food and co-operate with public or private agencies for that purpose.

20. Act as mediator or arbitrator in any controversy or issue that may

arise between producers and distributors of food.

21. Investigate, when deemed advisable, the conduct and methods of

exchanges and boards of trade within the state for the purchase and sale

of food.

22. Collect and publish data concerning the purity, wholesomeness,

economic value and the nutritious and hygienic properties of food

produced, sold or available for sale within the state, and for such

purpose to take, examine and analyze samples of such food.

23. Investigate deceptions in the quality, quantity or character of

foods produced, stored, sold or offered for sale within the state,

including the adulteration and misbranding thereof.

24. Co-operate with local health departments and other local agencies

in preventing the production, manufacture, sale or offering for sale of

fraudulent, deleterious or unwholesome food. The commissioner may

contract with any such local health department or other local agency for

the performance of inspections with respect to any food or other product

over which he has jurisdiction, powers and duties under the provisions

of this chapter.

25. Inspect and determine the grade or condition of farm products at

shipping points and receiving centers, and provide for the issuance of

certificates of such inspections and enter into co-operative

arrangements with state and federal marketing agencies for joint

inspections. The commissioner shall require and receive the payment of

fees for such inspection services in amounts not exceeding the estimated

cost of the services. The commissioner shall remit to the state

treasurer such fees received monthly.

25-a. Inspect and determine the grade or condition of farm products,

issue certificates of such inspections and provide quality control

services for growers, canners, processors, packers, shippers, sellers,

buyers, retailers and receivers upon request therefor; enter into

cooperative arrangements with state and federal agencies, or persons or

organizations authorized by a federal agency to conduct farm products

inspections, for joint inspections; enter into contracts with applicants

for such inspections and services, which contracts shall require payment

by applicants of the full costs of the services provided. All moneys

received by the commissioner pursuant to such contracts shall be

deposited in an account within the miscellaneous special revenue fund

and shall be used to defray the expenses incidental to carrying out the

powers and duties authorized by this subdivision. The state's financial

contribution to the pest control compact adopted pursuant to section one

hundred forty-nine of this chapter may be paid out of the portion of

said moneys received by the commissioner for phytosanitary inspections.

All moneys shall be paid out of such fund on vouchers approved by the

commissioner, after audit by the comptroller. Nothing contained in this

subdivision shall apply to fees received for inspections performed under

subdivision twenty-five of this section.

25-b. Require and receive the payment of a fee of fifty dollars for

the issuance of certificates of compliance with the food related

provisions of this chapter and the regulations promulgated pursuant

thereto. Notwithstanding any other provision of law to the contrary,

the commissioner is hereby authorized and directed to deposit all money

received pursuant to this subdivision in an account within the

miscellaneous special revenue fund.

25-c. The commissioner may enter into a contract or cooperative

agreement under which laboratory services of the department may be made

available to federal, state, local, and educational entities when, in

the commissioner's judgment, such contract or cooperative agreement

shall be in the public interest and shall not adversely affect the

department's obligations under this chapter. Such contracts or

cooperative agreements shall require payment by contractors and

cooperators of, at a minimum, the full costs of the services provided.

All moneys received by the commissioner pursuant to such contracts and

agreements shall be deposited in an account within the miscellaneous

special revenue fund and shall be used to defray the expenses incidental

to carrying out the services authorized by this subdivision.

25-d. The commissioner may enter into a contract or cooperative

agreement under which services relating to food safety and inspection,

animal health, invasive species control, the collection of samples for

research studies and similar services relating to the duties and

responsibilities of the department may be made available to federal

entities, educational entities located outside of the state, and state

and local governmental entities located outside of the state, when, in

the commissioner's judgment, such contract or cooperative agreement

shall be in the public interest and shall not adversely affect the

department's obligations under this chapter. Such contracts or

cooperative agreements shall require payment by contractors and

cooperators of, at a minimum, the full costs of the services provided.

All moneys received by the commissioner pursuant to such contracts and

agreements shall be deposited in an account within the miscellaneous

special revenue fund and shall be used to defray the expenses incidental

to carrying out the services authorized by this subdivision.

26. Investigate and take action to prevent illegal acts or practices

in the sale or distribution of food or of fertilizers, feeding stuffs,

materials, apparatus and machinery or other instrumentalities used or

needed for the production, marketing and distribution of food.

27. Seize, destroy or denature so that it cannot thereafter be used

for food, any unwholesome food or food products sold or exposed for sale

on the markets of this state, or any food or food products consisting in

whole or in part of any filthy, decomposed or putrid animal or vegetable

substance, or any portion of an animal unfit for food, whether

manufactured or not, or if it is the product of a diseased animal or one

that has died otherwise than by slaughter. Provided, however, that the

commissioner of agriculture and markets after seizure and before such

destruction, shall give the owner, proprietor or custodian of such food

ten days notice in writing, to be served either personally or by mail,

of a hearing for the said owner, proprietor or custodian to show cause

why such food should not be destroyed in accordance with the provisions

of the statute.

28. Provide for holding a state fair to be known as the New York state

fair and, for the purpose of seeking advice and counsel in relation

thereto, consult with the state fair advisory board. The advisory board

shall consist of eleven members appointed by the governor, including one

member on the recommendation of the temporary president of the senate;

one member on the recommendation of the speaker of the assembly; one

member on the recommendation of the minority leader of the senate; and

one member on the recommendation of the minority leader of the assembly.

The governor shall select a member of the advisory board to serve as

chairperson. The members of the advisory board shall not receive

compensation for their services, but may be paid their actual and

necessary expenses incurred in serving upon the advisory board.

29. All the functions of the former department of farms and markets,

of the former council of farms and markets and of the former

commissioner of farms and markets and all their powers and duties, which

were transferred to the department of agriculture and markets by section

two hundred and seventy-two of the state departments law or shall have

been prescribed by law when this subdivision as hereby enacted takes

effect, whether in terms vested in such department, in such council or

in such commissioner or in a committee, member or officer thereof, and

all the functions of the former council of agriculture and markets and

the commissioner of agriculture and markets and all their powers and

duties which shall have been prescribed by law when this subdivision, as

hereby amended, takes effect, whether in terms vested in such council or

in such commissioner or in a committee, member or officer thereof, shall

continue to be vested in the department of agriculture and markets and

shall continue to be exercised and performed therein by or through the

commissioner of agriculture and markets or the appropriate division,

bureau, board or officer thereof as prescribed by or pursuant to law,

together with such functions, powers and duties as hereafter may be

conferred or imposed upon such department by law. All the provisions of

this chapter shall apply to the department of agriculture and markets

continued by this chapter as hereby amended and to the commissioner of

agriculture and markets and to the divisions, bureaus and officers of

such department, in so far as such provisions are not inconsistent with

this subdivision.

30. Investigate, inspect and supervise the sale and exposure for sale

of meat and meat preparations and enforce the provisions of sections two

hundred one-a, two hundred one-b and two hundred one-c of this chapter

relating thereto, designate an employee of the department as "director

of kosher law enforcement" and to make such rules and regulations

imposing such additional requirements and restrictions upon such sale

and exposure for sale as may be deemed necessary in connection with or

in aid of the proper administration and enforcement of such provisions

and of any other applicable laws.

30-a. Whenever under this chapter a person may elect to petition

therefor, the commissioner may in his discretion establish inspection of

petitioner's meat by-products or meat food products, and shall determine

the actual cost of inspection thereof and shall require and receive

quarterly the pre-payment of fees for such inspection services in

amounts not exceeding the actual cost. The commissioner shall establish

in the name of such petitioner an inspection fund to maintain such

inspection services and any unexpended funds which may remain over and

above the amount needed for such inspection or service shall be paid to

the petitioner at the close of each fiscal year.

31. Adopt, promulgate and make effective plans, rules and orders with

respect to the furnishing of care for children under fourteen years of

age, including children temporarily within the state, whose parent or

parents are seasonally or temporarily employed by canners, growers and

processors of foods and foodstuffs, and to expend or allocate moneys for

such purposes out of moneys appropriated to the department on such terms

and conditions as he may deem proper provided that he finds such action

is necessary in order to maintain an adequate supply of labor or to

avoid waste in the growing, harvesting and processing of food. The

commissioner is authorized to enter into contracts approved by the

attorney-general, the state comptroller and the director of the budget

with non-profit membership corporations providing such care. Such

contracts shall specify the terms and standards of operation and shall

limit the total financial responsibility of the state to a specified sum

which shall not exceed the amount appropriated for such purpose.

32. Receive and disburse federal moneys allotted to the state by or

pursuant to the federal agricultural marketing act of nineteen hundred

forty-six as amended, or any other act of the congress making

appropriation for the allocation among the states for research into

basic laws and principles relating to agriculture and to improve and

facilitate the marketing and distribution of agricultural products, and

for any other purpose relating to agriculture or marketing agricultural

products; on behalf of the state, to adopt, execute and administer plans

and to put into effect such measures as may be necessary for research

into basic laws and principles relating to agriculture and to improve

and facilitate the marketing and distribution of agricultural products;

on behalf of the state, to make and execute such contracts, agreements,

covenants or conditions, not inconsistent with law, as may be necessary

or required by any duly constituted agency of the federal government as

a condition precedent to receiving such funds or in connection with such

research; to cooperate with all federal, state or local authorities, or

other agencies, authorized under such acts of congress to carry out the

purposes thereof; to adopt and from time to time to amend such rules and

regulations and to prescribe such conditions, not inconsistent with law,

as may be necessary to make available to the people of the state the

benefits afforded by such acts of congress; and to enforce all the

provisions of this subdivision and the rules adopted pursuant hereto.

The department of taxation and finance is designated as custodian of all

federal-aid funds allotted to the state for the purposes of this

subdivision by the United States and such funds shall be payable only on

the audit and warrant of the comptroller on certificate of the

commissioner as provided in section one hundred ten of the state finance

law.

33. Require each applicant for a license, permit or registration or

renewal thereof authorized to be issued by the commissioner under the

provisions of this chapter to satisfy the commissioner that such

applicant is or will be in compliance with all ordinances or local laws

of the county, city, town and village in which such business or

occupation will be conducted bearing thereon. The commissioner's

approval of an application shall not, however, be construed in any way

as certifying that such ordinances or local laws have been complied

with.

34. Contract with Cornell university or the New York state veterinary

college at Cornell for the planning, design and construction of an

animal disease diagnostic laboratory at the state veterinary college at

Cornell university.

35. Investigate, inspect, and supervise all sanitary aspects relative

to the production, processing, sale and distribution of milk and milk

products.

36. Require that a written instrument submitted pursuant to this

chapter or a rule or regulation adopted pursuant thereto contain a form

notice to the effect that false statements made therein are punishable

pursuant to section 210.45 of the penal law or, where the commissioner

deems necessary, require that any such instrument be subscribed under

oath.

37. Provide for the operation of the state soil and water conservation

committee pursuant to the soil and water conservation districts law.

38. Establish and maintain a statewide registry of brands for

livestock owners to voluntarily register the brand they use to brand

their livestock.

39. (a) Establish a program in the state for the planning, design and

implementation of integrated pest management. Under such a program the

department may contract with Cornell university or the New York state

college of agriculture and life sciences at Cornell university, and

shall encourage such contractor to seek federal and private sources of

funds for such program. The department shall submit a quinquennial

report of such integrated pest management program to the governor, the

senate finance committee and the assembly ways and means committee on or

before January first, two thousand seven and on or before January first

of each fifth year thereafter. Such report shall include, but not be

limited to:

i. an identification of all revenue sources, including non-state

funds, and an identification of expenditures made within each

agricultural production area, as described in article eleven of this

chapter;

ii. an evaluation and description of the status of implementation with

each agricultural production area and the achievements of each objective

outlined in such article eleven made in the previous five years; and

iii. the overall status of the program and multi-year timetable for

the future implementation of the program.

(b) Between report due dates, the department shall maintain the

necessary records and data to satisfy such report requirements and to

satisfy information requests received from the governor, the senate

finance committee and the assembly ways and means committee, between

such report due dates.

40. Establish and administer, together with the state soil and water

conservation committee and the Cornell cooperative extension, a

voluntary program to encourage agricultural environmental planning and

implementation. The program shall promote farming practices which are

compatible with state water quality and other environmental objectives,

and may include training and certification of agricultural planners;

educational outreach to producers of farm products; technical and

financial assistance to farm operators; consultation and coordination

with federal, state and local agencies; and periodic evaluation and

assessment of program effectiveness.

41. (a) Establish and maintain New York state domestic animal health

assurance programs, voluntary, on-farm, integrated disease prevention

programs, directed at improving animal health and promoting a safe and

wholesome food supply. Such programs may include but are not limited to

the New York state cattle and horse health assurance programs. To carry

out such programs, the department may contract with public, private and

academic entities and shall encourage such entities to seek federal and

private sources of funds for such programs.

(b) Any proprietary farm protocol, animal or herd testing information

and/or producer herd data maintained in confidence and voluntarily

provided by an owner or operator of a farm operation as defined in

section three hundred one of this chapter to participate in a voluntary

cattle health program established pursuant to this subdivision shall be

exempt from public disclosure. The submission of any such information or

records by the owner or operator of a farm operation does not constitute

a waiver of any applicable privilege or protection under federal or

state law.

(c) The exemption described in paragraph (b) of this subdivision shall

not apply to: (1) information collected or created as part of a federal,

state, or local health agency investigation or official action taken in

connection with a public health risk; and (2) records that do not

identify and cannot be used to discern the identity of any participating

farm.

42. (a) For purposes of making timely determinations and consulting

with the chairman of the state liquor authority pursuant to subdivision

five of section seventy-six-a of the alcoholic beverage control law,

investigate and compile information relative to natural disasters, acts

of God, or continued adverse weather conditions which shall affect: (i)

the crop of grapes or other fruit products used in the production of

wine; and/or (ii) the crop of apples used in the production of cider.

(b) For purposes of making timely determinations and consulting with

the chairman of the state liquor authority pursuant to subdivision

eleven of section fifty-one-a of the alcoholic beverage control law,

investigate and compile information relative to natural disasters, acts

of God, or continued adverse weather conditions which shall affect: (i)

the necessary ingredients for brewing beer; and/or (ii) the crop of

apples used in the production of cider.

(c) For purposes of making timely determinations and consulting with

the chairman of the state liquor authority pursuant to subdivision

twelve of section fifty-one-a and subdivision eleven of section

fifty-eight-c of the alcoholic beverage control law, investigate and

compile information relative to natural disasters, acts of God, or

continued adverse weather conditions which shall affect the crop of

apples used in the production of cider.

43. Cooperate with the department of environmental conservation and

the environmental facilities corporation to establish methods to

facilitate loans to New York state's agricultural community, to develop

educational materials for farmers about the low-interest loans available

through the water pollution control linked deposit program, and to

develop an application form to be provided to lenders for linked deposit

loan requests. The department may promulgate rules and regulations

necessary and reasonable for the operation of the program.

44. Encourage and support the practice of forestry and manufacture of

wood products in the state, in coordination with the departments of

environmental conservation and economic development; and provide for the

operation of the wood products development council as established in

section two hundred twenty-five of this chapter.

45. When considering plans, policies, regulations and programs

pursuant to article fourteen of this chapter, the commissioner shall

take into consideration the impact on the horticulture and other plant

based industries in the state of New York, including but not limited to

greenhouse, nursery, and fruit and vegetable production.

46. Within the amount of monies appropriated or otherwise made

available therefor, establish, administer and operate, or provide for

the administration and operation of, a program, which may include

establishment of a revolving loan fund, to assist in the development,

implementation and operation of agricultural programs.

47. Evaluate, in conjunction with the state office for the aging,

programs and services offered by the department to ensure that they

support the needs of farmers, and other individuals engaged in

agriculture, and the production, processing, marketing and distributing

of food, who are also seniors, which shall mean an individual sixty

years of age or older.

48. Make available in written and electronic medium, in a manner

readily accessible to police agencies and officers and district

attorneys, information about animal cruelty and protection laws in this

chapter, including, but not limited to, article twenty-six of this

chapter and section seven hundred fifty-three-f of the general business

law. The development of such information shall be coordinated with the

division of criminal justice services, including the municipal police

training council, in a manner designed to enhance training of municipal

police officers and to assist such officers and district attorneys in

enforcing and applying such laws.

49. Make available, in consultation with the department of

environmental conservation and institutions of higher education with

expertise in pollinator protection, information concerning minimum

guidelines for vegetation management plans used by any person who

intends to develop their property or commercial enterprise, such as

solar electric generating systems, in a manner that is pollinator

friendly or provides benefits and protection to pollinators. Such

information may include guidelines for short-term and long-term property

management practices that provide and maintain native perennial

vegetation to protect the health and well-being of pollinators

including, but not limited to the percentage of the property that may be

covered with native perennial vegetation; the type, amount, and

diversity of native perennial vegetation that may be maintained on the

property; the number of seasons and the minimum number of species of

native perennial vegetation that may be in bloom; maintenance practices

to be used; the use of pesticides; the width and composition of buffers

adjacent to the property; and any other guidelines established by the

department.

50. Develop, in consultation with the commissioner of the department

of health and the New York state land grant university, best-practice

recommendations for treatment, prevention and management of livestock

and farm property to protect against Asian longhorned ticks. Such

recommendations shall be based upon scientific data and shall include,

but not be limited to, the use of landscape techniques demonstrated to

be safe for livestock, people, pets and the environment, methods to

discourage rodent activity, and, the effective use of pesticides, as

defined in subdivision thirty-five of section 33-0101 of the

environmental conservation law, including usage information and any

label warnings or caution statements. The commissioner, in consultation

with the department of environmental conservation and the New York state

land grant university, shall develop and distribute to farmers

information on Asian longhorned tick treatment, management, and

prevention. Such information and recommendations shall also be made

available on the department's website.

51. And shall take any measures necessary to prohibit any person from

attaching or affixing to state owned property on the grounds of the

state fair any symbols of hate, as defined in section one hundred

forty-six of the public buildings law, or any similar image, or tangible

personal property, inscribed with such an image, unless the image

appears in a book, digital medium, or otherwise serves an educational or

historical purpose.

52. Develop and maintain a publicly available searchable directory of

New York state farms and farm products on the department's website. The

website directory shall include all farms located within the state and

shall, when known, list the products available for purchase and contact

information for each farm, unless a farm opts out of being included in

the directory by notifying the department of such option. The department

shall provide farms with the ability to signify that they are interested

in supplying schools on the directory. The department shall update the

website directory at least every two years.

Food products containing nitrous oxide; packaging. The

commissioner shall promulgate rules and regulations to require that all

food products containing nitrous oxide be offered for sale in tamper

evident packaging. For the purposes of this section, the term "tamper

evident packaging" shall mean packaging having an indicator or barrier

to entry which, if breached or missing, can reasonably be expected to

provide visible evidence to consumers that tampering has occurred.

Public awareness campaign regarding Lyme disease and other

tick-borne diseases. The commissioner, in consultation with the

commissioner of health, shall develop and conduct a public awareness

campaign regarding Lyme disease and other tick-borne diseases. The

campaign may utilize public forums, social media and mass media,

including but not limited to internet, radio, and print advertising and

shall include materials and information on the department's website. The

campaign shall be tailored to educate farmers, farm workers, and other

agricultural employees regarding: (a) Lyme disease and other tick-borne

diseases; (b) recognition of the symptoms of Lyme disease and other

tick-borne diseases; (c) the available treatments for Lyme disease and

other tick-borne diseases; and (d) preventive measures that may be taken

to lessen the threat posed by ticks carrying Lyme disease or other

tick-borne diseases.

Delegation of powers. (a) The commissioner may delegate any of

his powers to, or direct any of his duties to be performed by, a deputy

commissioner or the director of a bureau and, except where it is

otherwise provided in this chapter or the context otherwise requires,

may delegate any of such powers to any officer or employee of the

department.

(b) The commissioner, except when it is otherwise provided in this

chapter or the context otherwise requires, may also delegate to an

officer or employee of the United States department of agriculture,

engaged within this state in joint or cooperative state-federal

programs, any of the powers invested in him by article five of this

chapter for the control, suppression or eradication of communicable

diseases in domestic animals or domestic fowls, any of the powers

invested in him by article five-B of this chapter relative to

ante-mortem and post-mortem inspection of animals slaughtered for food

purposes and processing inspection of meat, meat by-products and meat

food products, any of the powers invested in him by article five-D of

this chapter relative to ante-mortem inspection of poultry slaughtered

for human food, post-mortem inspection of poultry carcasses and

inspection of poultry and poultry products, any of the powers invested

in him by article fourteen of this chapter in the control or eradication

of injurious insects or plant diseases, and any of the powers invested

in him by subdivisions four and five of section sixteen of this chapter

relative to the collection, analysis and publication of primary

statistical data relating to agricultural products of this state. Such

delegation shall be in writing and shall state the specific limits of

the powers so delegated.

(c) Whenever by the education law or other statute the commissioner is

made a member by virtue of his office of the board of visitors, managers

or trustees or other similar body of a state institution, he may in

writing authorize and empower a deputy commissioner, the secretary of

the department or the director of a bureau to act in his place and stead

at any meeting or meetings of any such board or body.

Rules of department. Subject and in conformity to this chapter

and the constitution and laws of the state, the commissioner may enact,

amend and repeal necessary rules which shall

1. Regulate and control the transaction of business by the department,

provide for the exercise of the powers and the performance of the duties

of the department and prescribe the powers and duties of the bureaus and

of the directors of bureaus and other officers and employees thereof;

2. Provide for carrying into effect the provisions of this chapter and

of the laws of the state in respect of food and food traffic;

3. Regulate the conduct of investigations, inquiries and hearings

authorized by this chapter and prescribe necessary forms and notices;

4. Establish official grades for foods and farm products and prescribe

the use of such grades, and provide for the marking, packing and

shipping of foods and farm products so graded.

5. Establish uniform tolerances or amounts of reasonable variation for

containers of food and provide uniform regulations for carrying out the

provisions of this chapter in relation to such containers.

6. Provide generally for the exercise of the powers and performance of

the duties of the department as prescribed in this chapter and the laws

of the state and for the enforcement of their provisions and the

provisions of the rules enacted as herein provided.

The rules of the department in force at the time this chapter takes

effect shall continue as the rules of the department, until amended or

repealed by the commissioner.

Publication of rules. Every rule or regulation enacted by the

commissioner pursuant to the provisions of this chapter and intended to

have the force of law shall be promptly published once in the New York

state bulletin, published by the department of state pursuant to section

one hundred sixty of the executive law. A copy of every such rule or

regulation certified by the commissioner, a deputy commissioner or the

secretary of the department shall be promptly filed with the secretary

of state. Every such rule or regulation shall take effect twenty days

after such filing, unless some other date of taking effect shall be

prescribed by the commissioner.

Access to place of business. The commissioner, each deputy

commissioner and the directors, counsel, experts, chemists, agents and

other officers and employees of the department shall have full access to

all places of business, factories, farms, buildings, carriages, cars and

vessels used in the production, manufacture, storage, sale or

transportation within the state of any dairy products or any imitation

thereof, or of any article or product with respect of which any

authority is conferred by this chapter on the department. They may

examine and open any package or container of any kind containing or

believed to contain any article or product, which may be manufactured,

sold or exposed for sale in violation of the provisions of this chapter,

or of the rules of the department, and may inspect the contents therein,

and take therefrom samples for analysis.

Search warrant in aid of the commissioner of agriculture. A

search warrant, in the name of the people, directed to a police officer

commanding him to search for dairy products, imitations thereof and

substitutes therefor, to open any place of business, factory, building,

store, bakery, hotel, tavern, boarding house, restaurant, saloon, lunch

counter, place of public entertainment, carriage, car, boat, package,

vessel, barrel, box, tub or can, containing, or believed to contain the

same, in the possession or under the control of any person who shall

refuse to allow the same to be inspected or samples taken therefrom by

the commissioner of agriculture, a deputy commissioner or any person or

officer authorized by the commissioner or by the agriculture and markets

law or to which access is refused or prevented, and to allow and enable

the officer mentioned in section fifty-one of the agriculture and

markets law applying therefor to take such samples of dairy products,

imitations thereof and substitutes therefor, found in the execution of

the warrant, as the officer applying for the search warrant shall

designate when the same are found, shall be issued by any court to which

application is made therefor, whenever it shall be made to appear to

such court that such person has refused to permit any dairy products,

imitations thereof or substitutes therefor, to be inspected or samples

taken therefrom, or that access thereto by any officer mentioned in

section fifty-one of the agriculture and markets law has been refused or

prevented, and that such officer has reasonable grounds for believing

that such person has any dairy products, imitations thereof or

substitutes therefor in his possession, or under his control, or that he

is violating any of the provisions of the agriculture and markets law

relating thereto. The provisions of article six hundred ninety of the

criminal procedure law shall apply to such warrant as far as applicable

thereto. The officer to whom the warrant is delivered shall make a

return in writing of his proceedings thereunto to the court which issued

the same.

Interference with department employees in performance of duties;

bribery. No person shall attempt, by means of any threat or violence, to

deter or prevent an inspector, agent or other employee of the department

from performing any duty imposed by law upon him or upon the department;

nor shall any person give or offer a bribe or any valuable consideration

to any inspector, agent or other employee of the department to influence

him in respect to any official act or duty.

Power to administer oaths and compel testimony. The

commissioner, a deputy commissioner, the secretary or counsel of the

department, or any other officer or employee duly authorized by the

commissioner, may administer oaths and take affidavits in relation to

any matter or proceeding in the exercise of the powers and duties of the

department under this chapter. The commissioner, or a deputy

commissioner may subpoena and require the attendance of witnesses and

the production of books, papers and documents pertaining to the

investigations and inquiries which such commissioner or deputy

commissioner is authorized to conduct, and examine them in relation to

any matter to be investigated by them and issue commissions for the

examination of witnesses who are out of the state or unable to attend or

excused from attendance.

Any person who shall wilfully testify falsely as to any material

matter pending in an investigation or proceeding under this chapter

shall be guilty of and punishable for perjury.

An officer who serves the subpoenas issued as above provided and

witnesses attending in response thereto shall be entitled to the same

fees as are allowed to officers and witnesses in civil actions in courts

of record, to be audited and paid in the same manner as other expenses

of the department.

Records, documents and papers of the department. All

proceedings, documents, papers and records filed or deposited with the

department relating to matters within its jurisdiction and powers shall

be public records; except such portions thereof as are received and

accepted by the commissioner, as being of a confidential nature which

when so received and accepted shall not be subject to subpoena. Copies

of all official documents and orders so filed or deposited, certified by

the commissioner, a deputy commissioner, counsel, a division director,

or an assistant director under the seal of the department to be true

copies of the originals, shall be evidence in like manner as the

originals.

Publication of department bulletins, publications and reports.

There may be published by the department from time to time bulletins or

other publications and reports containing accurate data, statistics and

information.

1. As to agriculture, agricultural production, agricultural labor and

the agricultural conditions of the state, and the development and

improvement thereof, with a view of increasing farm production and

values;

2. As to the sources, supply and prices of foods, their storage and

accumulation at different places, and the quantities and location of the

available supply thereof;

3. As to the market prices of foods;

4. As to facilities afforded for transportation, marketing and

distribution of foods within the state;

5. As to matters pertaining generally to the production of foods, the

actual food value of articles used as foods, and the sale and

distribution thereof to the consumers, which in the opinion of the

commissioner will prove valuable or of interest to the public;

6. As to investigations, hearings and inquiries conducted as provided

in this chapter, the conclusions reached as to the matters involved

therein, and the orders and recommendations made as a result thereof;

7. As to any other matter which the commissioner deems proper.

Such bulletins, publications and reports and the information contained

therein shall be published and distributed in the manner deemed best by

the commissioner for the dissemination of knowledge as to the

agricultural and dairy interests of the state and the production, sale,

purchase, storage, marketing and distribution of foods, and the economic

and food value of articles used as food. The cost of publishing such

bulletins, publications and reports shall be paid in the same manner as

other expenses of the department out of appropriations made therefor.

Copies of the bulletins, publication and reports of the department may

also be sold to the public at the estimated cost thereof, in accordance

with a schedule of charges which the commissioner is hereby authorized

to adopt.

Annual reports. The commissioner may require all agricultural

societies receiving money from the state to make reports to the

department, and may prescribe the form of such reports.

Transfer of property and records in custody of council of

agriculture and markets. The property, records, books, papers and

documents, if any, in the custody, possession or control of the council

of agriculture and markets at the time this section takes effect, which

pertain or relate to any of the functions, powers and duties of the

department of agriculture and markets or of the council, which is hereby

abolished, shall be delivered and belong to the department of

agriculture and markets.

Obtaining title to real property by purchase or acquisition. 1.

The commissioner, when an appropriation therefor has been made by the

legislature, may obtain title to any real property which he may deem

necessary for the purposes of the department, including the purposes of

the state fair, by purchase or pursuant to the eminent domain procedure

law, which title shall be taken in the name of and be vested in the

people of the state of New York; provided, however, that title to real

property shall be so obtained by purchase unless such title thereto

shall be approved by the attorney general.

2. Whenever real property is to be acquired pursuant to the eminent

domain procedure law, the commissioner shall cause to be made by the

state department of transportation an accurate acquisition map as so

provided in said law.

3. On the approval of such map by the commissioner, the original

tracing of such map shall be filed in the main office of the department

pursuant to the eminent domain procedure law.

4. If the commissioner shall determine, prior to the filing of such

map in the office of the clerk or register of the county, that changes,

alterations or modifications of such map as filed in the main office of

the department should be made, he or she shall direct the preparation by

the department of transportation of an amended map. On the approval of

such amended map by the commissioner, it shall be filed in the main

office of the department and the amended map shall thereupon in all

respects and for all purposes supersede the map previously filed.

5. If the commissioner shall determine, prior to the filing of a copy

of such acquisition map in the office of the county clerk or register as

provided in section four hundred two of the eminent domain procedure

law, if applicable, that such map should be withdrawn, he or she may

file a certificate of withdrawal in the offices of the department and of

the department of law. Upon the filing of such certificate of

withdrawal, the map to which it refers shall be cancelled and all rights

thereunder shall cease and determine.

6. The commissioner shall deliver to the attorney general a copy of

such acquisition map, whereupon it shall be the duty of the attorney

general to advise and certify to the commissioner the names of the

owners of the property, easements, interests or rights described in the

said acquisition map, including the owners of any right, title or

interest therein, pursuant to the requirements of section four hundred

three of the eminent domain procedure law.

7. If, at or after the vesting of title to such property in the

people of the state of New York as provided for in the eminent domain

procedure law, the commissioner shall deem it necessary to cause the

removal of an owner or occupant from any real property so acquired, he

may cause such owner or occupant to be removed therefrom by proceeding

in accordance with section four hundred five of the eminent domain

procedure law. The proceeding shall be brought in the name of the

commissioner as agent of the state and the attorney general shall

represent the petitioner in the proceedings. No execution shall issue

for costs, if any, awarded against the state or the commissioner, but

they shall be part of the costs of the acquisition of the real property

and be paid in like manner. Proceedings may be brought separately

against one or more of the owners or occupants of any such property, or

one proceeding may be brought against all or several of the owners or

occupants of any or all such property within the territorial

jurisdiction of the same court, justice or judge; precepts or final

orders shall be made for immediate removal of persons defaulting in

appearance or in answering, or withdrawing their answers, if any,

without awaiting the trial or decision of issues raised by contestants,

if any.

8. Upon making any agreement provided for in section three hundred

four of the eminent domain procedure law, the commissioner shall deliver

to the comptroller such agreement and a certificate stating the amount

due such owner or owners thereunder on account of such appropriation of

his or their property and the amounts so fixed shall be paid out of the

state treasury after audit by the comptroller from moneys appropriated

for the acquisition of such real property, but not until there shall

have been filed with the comptroller a certificate of the attorney

general showing the person or persons claiming the amount so agreed upon

to be legally entitled thereto.

9. Application for reimbursement of incidental expenses as provided

in section seven hundred two of the eminent domain procedure law shall

be made to the commissioner upon forms prescribed by him and shall be

accompanied by such information and evidence as the commissioner may

require. Upon approval of such application, the commissioner shall

deliver a copy thereof to the comptroller together with a certificate

stating the amount due thereof, and the amount so fixed shall be paid

out of the state treasury after audit by the comptroller from moneys

appropriated for the acquisition of property under this section.

10. The commissioner, with the approval of the director of the

budget, shall establish and may from time to time amend rules and

regulations authorizing the payment of actual reasonable and necessary

moving expenses of occupants of property acquired pursuant to this

section; of actual direct losses of tangible personal property as a

result of moving or discontinuing a business or farm operation, but not

exceeding an amount equal to the reasonable expenses that would have

been required to relocate such property, as determined by the

commissioner; and actual reasonable expenses in searching for a

replacement business or farm; or in hardship cases for the advance

payment of such expenses and losses. For the purposes of making payment

of such expenses and losses only the term "business" means any lawful

activity conducted primarily for assisting in the purchase, sale,

resale, manufacture, processing or marketing of products, commodities,

personal property or services by the erection and maintenance of an

outdoor advertising display or displays, whether or not such display or

displays are located on the premises on which any of the above

activities are conducted. Such rules and regulations may further define

the terms used in this subdivision. In lieu of such actual reasonable

and necessary moving expenses, any such displaced owner or tenant of

residential property may elect to accept a moving expense allowance,

plus a dislocation allowance, determined in accordance with a schedule

prepared by the commissioner and made a part of such rules and

regulations. In lieu of such actual reasonable and necessary moving

expenses, any such displaced owner or tenant of commercial property who

relocates or discontinues his business or farm operation may elect to

accept a fixed relocation payment in an amount equal to the average

annual net earnings of the business or farm operation, except that such

payment shall be not less than two thousand five hundred dollars nor

more than ten thousand dollars. In the case of a business, no such

fixed relocation payment shall be made unless the commissioner finds and

determines that the business cannot be relocated without a substantial

loss of its existing patronage, and that the business is not part of a

commercial enterprise having at least one other establishment, which is

not being acquired by the state or the United States, which is engaged

in the same or similar business. In the case of a business which is to

be discontinued but for which the findings and determinations set forth

above cannot be made, the commissioner may prepare an estimate of what

the actual reasonable and necessary moving expenses, exclusive of any

storage charges, would be if the business were to be relocated and enter

into an agreed settlement with the owner of such business for an amount

not to exceed such estimate in lieu of such actual reasonable and

necessary moving expenses. Application for payment under this

subdivision shall be made to the commissioner upon forms prescribed by

him and shall be accompanied by such information and evidence as the

commissioner may require. Upon approval of such application, the

commissioner shall deliver a copy thereof to the comptroller together

with a certificate stating the amount due thereunder, and the amount so

fixed shall be paid out of the state treasury after audit by the

comptroller from moneys appropriated for the acquisition of property

under this section. As used in this subdivision the term "commercial

property" shall include property owned by an individual, family,

partnership, corporation, association or a nonprofit organization and

includes a farm operation. As used in this subdivision the term

"business" means any lawful activity, except a farm operation, conducted

primarily for the purchase, sale, lease and rental of personal and real

property, and for the manufacture, processing, or marketing of products,

commodities, or any other personal property; for the sale of services to

the public; or by a nonprofit organization.

11. Authorization is hereby given to the commissioner to make

supplemental relocation payments, separately computed and stated, to

displaced owners and tenants of residential property acquired pursuant

to this section who are entitled thereto, as determined by him. The

commissioner, with the approval of the director of the budget, may

establish and from time to time amend rules and regulations providing

for such supplemental relocation payments. Such rules and regulations

may further define the terms used in this subdivision. In the case of

property acquired pursuant to this section which is improved by a

dwelling actually owned and occupied by the displaced owner for not less

than one hundred eighty days immediately prior to initiation of

negotiations for the acquisition of such property, such payment to such

owner shall not exceed fifteen thousand dollars. Such payment shall be

the amount, if any, which, when added to the acquisition payment equals

the average price, established by the commissioner on a class, group or

individual basis, required to obtain a comparable replacement dwelling

that is decent, safe and sanitary to accommodate the displaced owner,

reasonably accessible to public services and places of employment and

available on the private market, but in no event shall such payment

exceed the difference between acquisition payment and the actual

purchase price of the replacement dwelling. Such payment shall include

an amount which will compensate such displaced owner for any increased

interest costs which such person is required to pay for financing the

acquisition of any such comparable replacement dwelling. Such amount

shall be paid only if the dwelling acquired pursuant to this section was

encumbered by a bona fide mortgage which was a valid lien on such

dwelling for not less than one hundred eighty days prior to the

initiation of negotiations for the acquisition of such dwelling. Such

amount shall be equal to the excess in the aggregate interest and other

debt service costs of that amount of the principal of the mortgage on

the replacement dwelling which is equal to the unpaid balance of the

mortgage on the acquired dwelling, over the remainder term of the

mortgage on the acquired dwelling, reduced to discounted present value.

The discount rate shall be the prevailing interest rate paid on savings

deposits by commercial banks in the general area in which the

replacement dwelling is located. Any such mortgage interest

differential payment shall, notwithstanding the provisions of section

twenty-six-b of the general construction law, be in lieu of and in full

satisfaction of the requirements of such section. Such payment shall

include reasonable expenses incurred by such displaced owner for

evidence of title, recording fees and other closing costs incident to

the purchase of the replacement dwelling, but not including prepaid

expenses. Such payment shall be made only to a displaced owner who

purchases and occupies a replacement dwelling which is decent, safe and

sanitary within one year subsequent to the date on which he is required

to move from the dwelling acquired pursuant to this section or the date

on which he receives from the state final payment of all costs of the

acquired dwelling, whichever occurs later, except advance payment of

such amount may be made in hardship cases. In the case of property

acquired pursuant to this section from which an individual or family,

not otherwise eligible to receive a payment pursuant to the above

provisions of this subdivision, is displaced from any dwelling thereon

which has been actually and lawfully occupied by such individual or

family for not less than ninety days immediately prior to the initiation

of negotiations for the acquisition of such property, such payment to

such individual or family shall not exceed four thousand dollars. Such

payment shall be the amount which is necessary to enable such individual

or family to lease or rent for a period not to exceed four years, a

decent, safe and sanitary dwelling of standards adequate to accommodate

such individual or family in areas not generally less desirable in

regard to public utilities and public and commercial facilities and

reasonably accessible to his place of employment, but shall not exceed

four thousand dollars, or to make the down payment, including reasonable

expenses incurred by such individual or family for evidence of title,

recording fees, and other closing costs incident to the purchase of the

replacement dwelling, but not including prepaid expenses, on the

purchase of a decent, safe and sanitary dwelling of standards adequate

to accommodate such individual or family in areas not generally less

desirable in regard to public utilities and public and commercial

facilities, but shall not exceed four thousand dollars, except if such

amount exceeds two thousand dollars, such person must equally match any

such amount in excess of two thousand dollars, in making the down

payment. Such payments may be made in installments as determined by the

commissioner. Application for payment under this subdivision shall be

made to the commissioner upon forms prescribed by him and shall be

accompanied by such information and evidence as the commissioner may

require. Upon approval of such application, the commissioner shall

deliver a copy thereof to the comptroller, together with a certificate

stating the amount due thereunder, and the amount so fixed shall be paid

out of the state treasury after audit by the comptroller from moneys

appropriated for the acquisition of property under this section.

12. The owner of any real property so acquired may present to the

court of claims, pursuant to section five hundred three of the eminent

domain procedure law a claim for the value of such property appropriated

and for legal damages caused by such appropriation, as provided by law

for the filing of claims with the court of claims. Awards and judgments

of the court of claims shall be paid in the same manner as awards and

judgments of that court for the acquisition of lands generally and shall

be paid out of the state treasury after audit by the comptroller from

moneys appropriated for the acquisition of such real property.

13. If the commissioner shall determine subsequent to the acquisition

of a temporary easement in any real property that the purposes for which

such easement right was acquired have been accomplished and that the

exercise of such easement is no longer necessary, he shall make his

certificate that the exercise of such easement is no longer necessary

and that such easement right is therefore terminated, released and

extinguished. The commissioner shall cause such certificate to be filed

in the office of the department of state and upon such filing all rights

acquired by the state in such property shall cease and determine. The

commissioner shall cause a certified copy of such certificate as so

filed in the office of the department of state to be mailed to the owner

of the property affected, as certified by the attorney general, if the

place of residence of such owner is known or can be ascertained by a

reasonable effort and such commissioner shall cause a further certified

copy of such certificate to be filed in the office of the recording

officer of each county in which the property affected or any part

thereof is situated. On the filing of such certified copy of such

certificate with such recording officer, it shall be his duty to record

the same in his office in the books used for recording deeds and to

index the same against the name of the people of the state of New York

as grantor.

* § 28. Advisory group for improving urban and rural consumer access

to locally produced, healthy foods. The commissioner shall convene an

advisory group with representatives from agriculture, food access

organizations, food retailers and economic development agencies to

identify strategies and opportunities to expand access for underserved,

nutritionally deficient urban and rural communities to healthy, locally

produced food in New York state, including identifying new and

innovative methods to increase the production, marketing and

distribution of locally produced, fresh food in such communities in New

York state.

Not later than one year after the effective date of this section, a

report shall be delivered by the commissioner to the governor and the

legislature on the findings and recommendations of such advisory group.

* NB Repealed after the report required to this section has been

delivered.

Fair grounds. The property described in the conveyance to the

state by the New York state agricultural society of its property in the

town of Geddes, Onondaga County, New York, by deed dated July

twenty-eight, eighteen hundred and ninety-nine, and recorded in the

office of the comptroller and any other property heretofore or hereafter

acquired by the state for state fair purposes shall be under the

management and control of the department, and it may, from time to time,

make rules and provide for the care, preservation and improvement

thereof. When the exhibition buildings and facilities are not in use for

state fair purposes, the commissioner of agriculture and markets may

manage and lease such exhibition buildings and facilities and may lease

space in such buildings, and may execute contracts in relation to such

rentals and fix, impose and collect rentals and license fees therefor.

All rental and license fees and such other income as may be provided by

the leasing of such buildings, space and facilities shall be considered

moneys payable to the state on account of said fair in accordance with

the provisions of section thirty-one-c of this article. The commissioner

of agriculture and markets may convey to the industrial exhibit

authority certain real property in the town of Geddes, Onondaga county,

New York, as heretofore or hereafter acquired by the state for state

fair purposes. The commissioner is authorized to execute and file in the

Onondaga county clerk's office an instrument in writing defining

specifically the plot or plots of land transferred to the industrial

exhibit authority pursuant to this section provided, however, that such

plot or plots of land shall be no more than is sufficient to accomplish

the purposes described in the instrument. When such written instrument

is so filed it shall vest the authority with the title to the real

property defined therein provided, however, that nothing herein shall

prevent the industrial exhibit authority from transferring back to the

state and vesting title in the state for state fair purposes under the

management and control of the department of agriculture and markets any

land which the authority heretofore received as state fair land or any

state fair land which the authority may hereafter receive pursuant to

this section. In the event that the industrial exhibit authority shall

be abolished or for any reason cease to exist the title to all lands

held by the authority which were formerly state fair lands shall revert

to the state for state fair purposes under the management and control of

the department of agriculture and markets. All conveyances heretofore

made between the commissioner of agriculture and markets and the

industrial exhibit authority are hereby confirmed and recognized as

valid and sufficient to convey good title.

The maintenance and repair of the improved roads on said property

shall however be under the direct supervision and control of the

superintendent of public works who is hereby authorized and directed to

maintain and repair the same, and the cost of such maintenance and

repair shall be paid out of any funds available for the maintenance,

repair and reconstruction of improved state highways.

Organization. There shall continue to be in the department a

division to be known as the division of the New York state fair. The

head of such division shall be a director, who shall be appointed by the

commissioner. In addition to the functions, powers and duties provided

in this article, such division shall continue to exercise and perform,

subject to the provisions of this article, the functions, powers and

duties of the former state fair commission, as provided by law

immediately prior to January first, nineteen hundred and twenty-seven.

State fair. It shall be the duty of the department to hold a

state fair to be known as the New York state fair at such times as it

may deem proper, and between January first and February fifteenth in

each calendar year to publish the time for holding said fair in such

year. If such fair be held on the first Monday of September, known as

labor day, the department shall designate such day as "organized labor

day." It shall not be lawful for any corporation, association or

individual to hold or conduct any trotting or pacing race or races

during the week in which the New York state fair is held, except upon

half-mile tracks, and except at the fairs held by agricultural societies

which have received moneys from the state, and no corporation,

association or individual holding such races during said week shall be

entitled to any of the benefits conferred by article twenty of the

membership corporations law, or by any general or special law. The

department may make, alter, suspend or repeal needed rules relating to

such fair, including the times and duration thereof, the terms and

conditions of entries and admissions, exhibits, sale of privileges,

payments of premiums, and any other matters which it may deem proper in

connection with such fair. It shall furnish to each person who, on the

seventeenth day of January, nineteen hundred, was a life member of the

state agricultural society, a free admission to the fair ground during

the fair of each year during the life of such member.

Receipts and disbursements. The department shall receive all

moneys payable to the state on account of said fair and make all

disbursements therefrom and also from any appropriation made for that

purpose by the legislature as may be needed, from time to time, in

carrying on the work of the department. The provisions of section one

hundred twenty-one of the state finance law requiring that money

received for or on behalf of the state shall be paid monthly into the

state treasury shall not apply to the proceeds of the state fair, and

the department may pay from the race and other entry fees, gate

admissions and other receipts of such fair such expenses as shall be

necessary for the proper conduct of the New York state fair and the

purposes of the department. Any balance remaining in its hands received

in connection with the state fair shall be retained by the department of

agriculture and markets as a special fund for such permanent

constructions on the state fair grounds or for administration expenses

as shall be approved by the director of the budget, the chairman of the

finance committee of the senate and the chairman of the ways and means

committee of the assembly.

Legislative findings. The legislature hereby finds and

declares that community gardens provide significant health, educational

and social benefits to the general public, especially for those who

reside in urban and suburban areas of this state. Furthermore, it is the

articulated public policy of this state to promote and foster growth in

the number of community gardens and the acreage of such gardens. The

community garden movement continues to provide low cost food that is

fresh and nutritious for those who may be unable to readily afford or

have easy access to fresh fruits and vegetables for themselves or their

families, promotes public health and healthier individual lifestyles by

encouraging better eating habits and increased physical activity by

growing their own food, fosters the retention and expansion of open

spaces, particularly in urban environments, enhances urban and suburban

environmental quality and community beautification, provides inexpensive

community building activities, recreation and physical exercise for all

age groups, establishes a safe place for community involvement and helps

to reduce the incidence of crime, engenders a closer relationship

between urban residents, nature and their local environment, and fosters

green job training and ecological education at all levels. It is

therefore the intent of the legislature and the purpose of this article

to foster growth in the number, size and scope of community gardens in

this state by encouraging state agencies, municipalities and private

parties in their efforts to promote community gardens.

Definitions. As used in this article, unless another meaning

is clearly indicated:

1. "Community garden" shall mean public or private lands upon which

citizens of the state have the opportunity to garden on lands which they

do not individually own.

2. "Garden" shall mean a piece or parcel of land appropriate for the

cultivation of herbs, fruits, flowers, nuts, honey, poultry for egg

production, maple syrup, ornamental or vegetable plants, nursery

products, or vegetables.

3. "Municipality" shall mean any county, town, village, city, school

district, board of cooperative educational services, other special

district, or any office or agency thereof.

4. "Office" shall mean the office of community gardens.

4-a. "State agency" shall mean any department, bureau, commission,

board, public authority or other agency of the state, including any

public benefit corporation of which any member of whose board is

appointed by the governor.

5. "Use" shall mean to avail oneself of or to employ without

conveyance of title gardens on vacant public lands by any individual or

organization.

6. "Vacant public land" shall mean any land owned by the state or a

public corporation including a municipality that is not in use for a

public purpose, is otherwise unoccupied, idle or not being actively

utilized for a period of at least six months and is suitable for garden

use.

Office of community gardens; powers; duties. 1. The

commissioner shall establish within the department an office of

community gardens which shall have the authority and responsibility for

carrying out the provisions of this article in cooperation with the

state department of environmental conservation, the state education

department, the department of state, cooperative extensions and other

state agencies and municipalities.

2. The duties of the office shall include:

a. Upon request, the office shall assist in the identification of

vacant public land within a given geographical location and provide

information regarding agency jurisdiction and the relative suitability

of such lands for community gardening purposes;

b. Serve as a coordinator on behalf of interested community groups and

the appropriate state or local agencies to facilitate the use of vacant

public lands for community garden use for not less than one growing

season by receiving and forwarding with recommendation completed

applications to the appropriate state or municipal agency. Provided,

further, that the office may develop a single recommended application

form to be used by community groups when applying to state agencies or

municipalities for use of vacant public land for community garden

purposes;

c. Support and encourage contact between community garden programs

already in existence and those programs in the initial stages of

development;

d. Seek and provide such assistance, to the extent funds or grants may

become available, for the purposes identified in this article;

e. Assist, support and encourage contact and cooperation between, and

the cooperative sharing of resources between community garden groups,

school garden programs and local voluntary food assistance programs,

such as community food pantries, soup kitchens, senior centers, and

other community and not-for-profit organizations that provide or

distribute food to the elderly, poor, and disadvantaged. Such support

can include the provision of surplus community garden food or other

agricultural products to such local voluntary food assistance programs;

and

f. Assist, support and encourage communication, and the sharing of

resources between community garden organizations, the New York Harvest

For New York Kids Week program established by the department pursuant to

subdivision five-b of section sixteen of this chapter and individual

farm-to-school and school garden programs, and, where applicable, the

department of health, the department of state, the office of children

and family services and the division of housing and community renewal.

Use of state or municipally owned land for community gardens.

1. Any state agency or municipality with title in fee or of a lesser

interest to vacant public land may permit community organizations to use

such lands for community gardening purposes. Such use of vacant public

land may be conditioned on the community organization possessing

liability insurance and accepting liability for injury or damage

resulting from use of the vacant public land for community gardening

purposes.

2. State agencies and municipalities which have received an

application for use of public lands for community garden purposes shall

respond to the applicant within thirty days and make a final

determination within one hundred eighty days.

Community gardens task force. 1. The commissioner shall

convene a community gardens task force to identify and develop ways to

encourage state agencies, municipalities and private parties to

establish and expand community gardens and the activities conducted by

such gardens.

2. The task force shall be chaired by the commissioner, or by such

officer or employee of the department as shall be designated by the

commissioner. The membership of the task force may include

representation from appropriate state agencies and members that

represent existing community gardens, counties, cities, towns, villages,

school districts, other special use districts, public authorities and

cooperative extension services. Membership of the task force shall

include at least two representatives from organizations dedicated to the

promotion, expansion or protection of community gardens.

3. The commissioner, may request the assistance of state agencies to

carry out the work of the task force.

4. (a) The goals of the task force may include, but are not limited

to, the study, evaluation and development of recommendations: (i) to

encourage the establishment and expansion of community gardens by state

agencies, municipal governments and private parties, (ii) to encourage

cooperation between the activities and operations of community gardens

and provision of donated food to local voluntary food assistance

programs for the poor and disadvantaged, (iii) to increase the benefits

that community gardens may provide to the local community in which they

are located, (iv) to encourage cooperation with community-based

organizations to increase the opportunities for seniors, those aged

sixty years of age or older, to participate in community gardens, (v) to

encourage the expansion of the production of fresh fruits and vegetables

in areas served by community gardens so that such fresh produce can be

consumed locally to help encourage healthier life styles and wellness,

and to help reduce the incidence of adult and childhood obesity, (vi) to

develop after school programs that establish, maintain and expand

community gardens, and (vii) to encourage the development and expansion

of community gardens in food deserts as defined in section two hundred

sixty of this chapter.

(b) In achieving the goals of the task force, the task force may

consider recommendations that: (i) encourage the execution of

conservation easements by state agencies, municipalities or private

parties to establish or protect community gardens, (ii) encourage the

creation of mechanisms to transfer development rights to protect

community gardens or encourage the donation or lease of lands for

community gardens, (iii) development of model zoning codes, local land

use laws or other municipal policies that could encourage the

establishment or retention of community gardens, and (iv) any other

activity to achieve the goals deemed appropriate by the task force

according to the provisions of this article.

5. The task force shall submit a report to the governor and the

legislature on or before January first, two thousand twenty-three and on

or before January first of each fifth year thereafter on the status of

community gardens in New York state. Such report shall include:

(a) the number, nature and geographic location of community gardens;

(b) a description of the costs, benefits and impacts of community

gardens;

(c) an assessment of the successes, failures and barriers in

developing, maintaining and expanding community gardens;

(d) lists of funding sources available to develop and expand community

gardens along with the requirements for obtaining the funding;

(e) an assessment of the funding, requirements and barriers for double

the number of existing community gardens;

(f) a discussion of the goals outlined in subdivision four of this

section and a description of the steps and projects undertaken to meet

the goals for the task force as established in this section;

(g) an action plan for doubling the number of community gardens in the

state of New York;

(h) recommendations for developing, maintaining and expanding

community gardens in food deserts; and

(i) any other recommendations or assessments the task force deems

appropriate for the report.

Between report due dates, the commissioner shall maintain the

necessary records and data required to satisfy such report requirements

and to satisfy information requests received from the governor and the

legislature between such report due dates.

Investigations and proceedings. 1. The commissioner, or any

officer of the department when authorized by the commissioner, may

investigate and report as to all matters within or pertaining to the

powers and jurisdiction of the department, and for the purposes of

carrying into effect the provisions of this chapter or of any other law

relative to matters within its jurisdiction and the rules of the

department.

2. Proceedings may be instituted before the commissioner against a

corporation, association or person upon the written complaint of any

person or corporation aggrieved complaining of practices in the

production, sale, transportation, purchase, storage, marketing and

distribution of foods, in violation of any provision of law or the rules

of the department or of the terms of an order issued pursuant to law by

the commissioner, under the provisions of this chapter or of any other

law the enforcement of which is within the jurisdiction of the

department, or the rules of the department, made in conformity

therewith.

3. Upon the presentation of such complaint the commissioner may cause

inquiries to be made as to the matters alleged therein and if such

complaint appears to present a sufficient cause for investigation a copy

of such complaint shall be forwarded to the person, association or

corporation complained of and answer may be made thereto in accordance

with the rules of the department.

4. The commissioner shall thereupon cause the charges presented by

such complaint to be investigated as herein provided, and such action

shall be taken as the facts justify and as may be authorized by law.

Immunity of witnesses. In any investigation, hearing or

inquiry, conducted pursuant to this chapter or the rules of the

department, the commissioner, or his deputy or other officer presiding

at such investigation, hearing or inquiry, may confer immunity in

accordance with the provisions of section 50.20 of the criminal

procedure law.

Practice on hearings; attendance and examination of witnesses.

1. The practice on all investigations and hearings conducted or

instituted as provided in this chapter shall be governed by the rules of

the department, and in all such hearings or investigations where

testimony is taken, the commissioner, or other officer conducting the

same, shall not be bound by the technical rules of evidence.

2. All subpoenas shall be signed and issued by the commissioner, a

deputy commissioner or the counsel of the department.

The fees of witnesses shall be audited and paid in the same manner as

other expenses of the department. Whenever a subpoena is issued at the

instance of a complainant, respondent or other party to the proceeding,

the cost of the service thereof and the fees of the witness shall be

borne by the party at whose instance the witness is subpoenaed.

3. If a person subpoenaed to attend before the commissioner or other

officer of the department, fails to obey the command of such subpoena,

without reasonable cause, or if a person in attendance upon an

investigation or hearing shall, without reasonable cause, refuse to be

sworn or to be examined or to answer a question or to produce a book or

paper, when ordered so to do by the officer or officers conducting such

an investigation or hearing, or to subscribe and swear to his deposition

after it has been correctly reduced to writing, if required so to do, he

shall be guilty of a misdemeanor and may be prosecuted therefor in any

court of competent criminal jurisdiction.

4. A subpoena issued under this section shall be regulated by the

civil practice law and rules.

5. Any person who shall wilfully testify falsely as to any material

matter pending in an investigation or proceeding under this chapter

shall be guilty of perjury.

Proceedings in court. If it appear after an investigation or

hearing conducted as herein provided that any person, association or

corporation is guilty of a violation of the provisions of this chapter

or of any other act the enforcement of which is within the jurisdiction

of the department, an action or proceeding may be instituted in a court

of competent jurisdiction to recover a penalty for such violation or to

compel a compliance with such provisions, or prevent a continuance of

such violations.

Orders and service thereof. 1. If it be ascertained after an

investigation or hearing conducted as herein provided, that any person,

association or corporation has failed to comply with or is guilty of a

violation of the provisions of this chapter or of a rule of the

department, or of any other general or special law relative to any

matter within the jurisdiction of the department, an order may be made

by the commissioner, under the seal of the department, compelling a

compliance with such law or rule.

2. Every such order shall be served upon every person, association or

corporation affected thereby, either by personal delivery of a certified

copy thereof, or by mailing a certified copy thereof with postage

prepaid to the person affected thereby, or in case of a corporation or

association, to an officer or agent thereof, upon whom a summons may be

served in accordance with the provisions of the civil practice act.

3. It shall be the duty of the person, association or corporation upon

whom such order is so served to notify the department forthwith, in

writing, of the receipt of such order, and in the case of an association

or corporation such notification must be signed and acknowledged by a

person or officer duly authorized by such association or corporation to

admit service. Within a time specified in the order, every person,

association or corporation upon whom it is served must, if so required

in the order, notify the department in like manner whether the terms of

the order are accepted and will be obeyed.

4. Every such order shall take effect at a time therein specified, and

shall continue in force either for a period to be designated therein or

until changed or abrogated by the commissioner.

5. If such hearing is held before a deputy commissioner, a report

shall be made upon the termination of the hearing to the commissioner,

with recommendation as to the determination which should be made as to

the issues raised on such hearing. If the commissioner find upon such

report or upon a hearing conducted by him, that the rule or order

complained of is reasonable and valid he shall render his decision

ratifying or confirming such rule or order; if he find that such rule or

order is unreasonable or invalid, he shall revoke or modify it, or

substitute a new rule or order in its place. If such modified or new

rule or order is substantially different from the rule or order

complained of, the parties affected thereby may bring before the

commissioner, by a new petition, in the manner above provided,

objections to its reasonableness or validity.

6. The decision of the commissioner shall be final, unless within

thirty days after its issuance one of the parties shall institute a

proceeding for the review thereof, as provided in section thirty-seven.

Petition for revocation or modification of rule or order of

the commissioner. Any person subject to a rule or order of the

commissioner, promulgated under the provisions of article four, article

four-a, or article twenty-one of this chapter, may file a written

petition with the commissioner stating that any such rule or order or

provision thereof or any obligation imposed in connection therewith is

not in accordance with law and praying for the revocation or

modification thereof. He shall thereupon be given an opportunity for a

hearing and ruling upon such petition in accordance with the provisions

of subdivision five of section thirty-six of this article. The decision

of the commissioner shall be final unless within thirty days after its

issuance one of the parties shall institute a proceeding for the review

thereof, as provided in the next section, provided further that the

pendency of any such proceeding shall not impede or prevent the

commissioner from taking any action authorized under section thirty-five

of this article.

Review by court. A decision by the commissioner rendered as

provided in the preceding section shall be subject to review in the

manner provided by article seventy-eight of the civil practice law and

rules. The pleadings upon which such review proceeding is instituted

shall be served upon the commissioner or upon an assistant commissioner,

personally, in the manner provided for the personal service of a summons

in an action unless a different manner of service is provided in an

order to show cause granted by the supreme court.

When injunction may be obtained. In an action in the supreme

court or county court for the recovery of a penalty or forfeiture

incurred for the violation of any of the provisions of this chapter, or

of any other law the enforcement of which is within the jurisdiction of

the department, or of the rules of the department, an application may be

made on the part of the people to the court or any justice thereof or to

the county judge if the defendant be a resident of such county for an

injunction to restrain the defendant, his agents and employees from the

further violation of such provisions. The court or justice to whom such

application is made, shall grant such injunction on proof, by affidavit,

that the defendant has been guilty of the violations alleged in the

complaint, or of a violation of any such provision subsequent to the

commencement of the action. No security on the part of the plaintiff

shall be required, and costs of the application may be granted or

refused in the discretion of the court or justice. If the plaintiff

shall recover judgment in the action for any penalty or forfeiture

demanded in the complaint, the judgment shall contain a permanent

injunction, restraining the defendant, his agents and employees from any

further violation of such provision of this chapter or of any other law

the enforcement of which is within the jurisdiction of the department or

of the rules of the department. Any injunction, order or judgment

obtained under this section may be served on the defendant by posting

the same upon the outer door of the defendant's usual place of business,

or where such violation was or is committed, or in the manner required

by the civil practice act, and the rules and practice of the court.

Personal service of the injunction shall not be necessary when such

service cannot be secured with reasonable diligence, but the service

herein provided shall be deemed sufficient in any proceeding for the

violation of such injunction.

Costs and expenses relating to extraordinary sanitary

reinspection services. 1. (a) The total costs and expenses, in excess of

ordinary costs and expenses, incurred by the department in connection

with the administration and or enforcement of any provision of this

chapter or of any other law the administration and or enforcement of

which is within the jurisdiction of the department or any order, rule or

regulation relating to sanitary conditions and practices and the

protection of the public from the sale of adulterated food administered

and or enforced by the division of food inspection services shall be

charged to and paid by every establishment requiring extraordinary

sanitary reinspection services or other necessary action by the

department to correct deficiencies.

(b) "Ordinary costs and expenses" shall mean costs and expenses

incurred by the department, in the administration of the provisions of

law, orders, rules or regulations enumerated in paragraph (a) of this

subdivision, provided the establishments covered thereby have been

determined to be in compliance therewith without the need for

extraordinary sanitary reinspection services or any other necessary

action by the department to bring about compliance therewith.

(c) "Extraordinary sanitary reinspection services" shall mean those

services which occur subsequent to an inspection, a reinspection, an

educational session for an establishment relating to sanitation or the

opportunity to attend such educational session in the event of an

establishment's failure or refusal to attend, notice of a compliance

inspection and a determination at the compliance inspection that an

establishment is in violation of any law, order, rule or regulation

enumerated in paragraph (a) of this subdivision.

2. Costs and expenses that shall be assessed for extraordinary

sanitary reinspection services or other necessary action shall include

the cost of direct and indirect personal service including but not

limited to the cost of salaries and wages, monetary and non-monetary

fringe benefits, retirement contributions made and workmen's

compensation premiums paid by the state for or on behalf of personnel,

the cost of necessary traveling, meals and lodging, the cost of rentals

for space occupied in state-owned or state-leased buildings, the cost of

maintenance and operation and the cost of all other actual, direct and

indirect costs apportioned to the specific division, bureau or other

unit and program involved excluding, however, ordinary expenses.

3. Costs and expenses as specified in subdivision two of this section

shall be presented to the establishment requiring extraordinary sanitary

reinspection services or other necessary action in the form of a copy of

an itemized bill therefor as certified by the commissioner, deputy

commissioner, or duly authorized employee of the department. Upon

receipt of such bill, the establishment shall have the duty to pay and

shall pay forthwith such charges to the commissioner.

4. On written demand made within thirty days of the rendition of any

bill, the party so charged shall be afforded an opportunity to be heard

as to liability hereunder and the amount thereof. Any amounts of such

bills not paid within thirty days from the date of determination upon

such hearing, or, if none shall be demanded, on the date upon which such

payment is due, shall bear interest at a rate of interest prescribed by

section five thousand four of the civil practice law and rules.

5. A right of action for the recovery of such costs and expenses as

specified in subdivision two of this section may be released, settled or

compromised by the department either before or after an action is

brought to recover such expenses. The commissioner may in his

discretion for good cause shown waive the collection of such expenses or

any part thereof.

6. All moneys collected or recovered as costs and expenses as

specified in this section shall be the property of the state and paid

into the state treasury.

7. The commissioner may promulgate, after public hearing, rules and

regulations necessary to supplement and give full effect to this

section.

Penalties for violation of chapter or other laws. Every person

violating any of the provisions of this chapter, or of any other law the

enforcement of which is within the jurisdiction of the department shall,

except where other penalties are hereinafter prescribed, be subject to a

penalty in the sum of not more than six hundred dollars for the first

violation, nor more than one thousand two hundred dollars for the second

and each subsequent violation and provided further, however, that for a

violation of subdivision thirteen or fifteen of section two hundred of

this chapter, the minimum penalty shall be five hundred dollars and the

maximum penalty shall be one thousand dollars and that for the second

and subsequent offenses such person may also be subject to an

administrative order suspending the manufacture and/or sale of such

confectionery for a period of time up to three months for each such

violation. When such violation consists of the manufacture or production

of any prohibited article, each day during which or any part of which

such manufacture or production is carried on or continued, shall be

deemed a separate violation. When the violation consists of the sale, or

the offering or exposing for sale or exchange of any prohibited article

or substance, the sale of each one of several packages shall constitute

a separate violation, and each day on which any such article or

substance is offered or exposed for sale or exchange shall constitute a

separate violation. If the sale be of milk and it be in cans, bottles or

containers of any kind and if the milk in any one of such containers be

adulterated, it shall be deemed a violation whether such vendor be

selling all the milk in all of his containers to one person or not. When

the use of any such article or substance is prohibited, each day during

which or any part of which such article or substance is so used or

furnished for use, shall constitute a separate violation, and the

furnishing of the same for use to each person to whom the same may be

furnished shall constitute a separate violation. When the storage of any

article is prohibited beyond a certain period, each day during which or

any part of which any article is so stored beyond the period provided

for by this chapter, shall constitute a separate violation. A right of

action for the recovery of, or a liability for, penalties incurred as

provided in this chapter, or in any other law the enforcement of which

is within the jurisdiction of the department, may be released, settled

or compromised before the matter is referred to the attorney general as

provided in section forty-four of this article, and thereafter may be

released, settled or compromised by the attorney general, either before

or after an action is brought to recover such penalties.

Penalty for violation of rule or order. Every person, association

or corporation and all agents, officers and employees thereof, shall

obey every order made as provided in this chapter, so long as such order

shall be in force. A person, association or corporation who shall fail

by himself, itself or through his or its agents, officers and employees,

to obey any order of the commissioner, or who shall violate any rule of

the department shall be subject to a penalty not exceeding the sum of

four hundred dollars for each and every first offense, and a penalty not

exceeding the sum of eight hundred dollars for a second and each

subsequent offense. Every violation of such order, or of the rules of

the department, shall be a separate and distinct offense, and in case of

a continuing violation, every day's continuance thereof shall be a

separate and distinct offense.

Deposit of money. The commissioner is hereby authorized and

directed to deposit all money recovered or received by the department in

satisfaction of penalties assessed for violations of this chapter and

rules and regulations promulgated pursuant thereto to the credit of the

general fund.

Violation of chapter a misdemeanor. Except as otherwise

provided by the penal law, a person who by himself or another violates

any of the provisions of this chapter or of any other law the

enforcement of which is within the jurisdiction of the department, is

guilty of a misdemeanor, and upon conviction shall, except as otherwise

provided in this chapter, be punished by a fine of not less than

twenty-five dollars, nor more than two hundred dollars, or by

imprisonment for not less than one month, nor more than six months, or

by both such fine and imprisonment, for the first offense; and by not

more than one year's imprisonment for the second offense.

Act of officer or agent deemed act of principal. In construing

and enforcing the provisions of this chapter relating to penalties, the

act of a director, officer, agent or other person acting for or employed

by a person, association or corporation subject to the provisions of

this chapter and acting within the scope of his employment, shall be

deemed the act of such person, association or corporation.

Evidence. The doing of anything prohibited by this chapter

shall be evidence of the violation of the provisions of this chapter

relating to the thing so prohibited, and the omission to do anything

directed to be done shall be evidence of a violation of the provisions

of the chapter relative to the thing so directed to be done. The intent

of any person doing or omitting to do any such act is immaterial in any

prosecution for a violation of the provisions of this chapter. Any

person who suffers, permits or allows any violation of the provisions of

this chapter in any room or building occupied or controlled by him,

shall be guilty of such violation and liable accordingly. Any person who

shall keep, store or display any article or product, the manufacture or

sale of which is prohibited or regulated by this chapter, with other

merchandise or stock in his place of business, shall be deemed to have

the same in his possession for sale.

Every certificate, duly signed and acknowledged, of a chemist, analyst

or other expert employed by the commissioner or any analysis,

examination or investigation made by such analyst, chemist or expert

with respect to any matter or product which the commissioner has

authority to examine or cause to be examined, shall be presumptive

evidence of the facts therein stated.

Prosecution for penalties. 1. Whenever the commissioner shall

know or have reason to believe that any penalty has been incurred by any

person for a violation of any of the provisions of this chapter, or of

any other law the enforcement of which is within the jurisdiction of the

department, or of the rules of the department, or that any sum has been

forfeited by reason of any such violation, the commissioner may report

the facts to the attorney general who may cause an action or proceeding

to be brought in the name of the people for the recovery of the same.

Such action may be brought in the county where the defendant resides or

the violation, or any part thereof, occurred.

2. In an action for a penalty or forfeiture incurred by reason of the

violation of the provisions of this chapter, or of any other law the

enforcement of which is within the jurisdiction of the department, or of

the rules of the department, when the complaint charges a violation of

any two or more of such provisions, the plaintiff shall not be compelled

to elect between the counts under such different provisions but shall be

entitled to recover if it is found that a violation of any of such

provisions has been committed for which a penalty or forfeiture is

imposed.

3. If the defendant in such an action shall prove that during any

portion of the time for which it is sought to recover penalties or

forfeitures for a violation of a rule or order of the department, the

defendant was actually and in good faith prosecuting a suit, action or

proceeding before the department or in the courts to set aside such rule

or order, the court shall remit the penalties or forfeitures incurred

during the pendency of such action or proceeding.

Disposal of fines and moneys recovered. Except as otherwise

provided in this chapter, all moneys recovered, either as fines,

penalties, forfeitures or otherwise, for the violation of any of the

provisions of this chapter, or of any other law the enforcement of which

is within the jurisdiction of the department, or of the rules of the

department, and all bail forfeited by persons charged with such

violations, shall be the property of the state. Moneys so recovered by

town justices shall be paid to the state comptroller in accordance with

the provisions of section twenty-seven of the town law and moneys so

recovered by village justices shall be paid to the state comptroller in

accordance with the provisions of section 4-410 of the village law. The

same disposal shall be made of all moneys recovered upon any bond given

by any officer by virtue of the provisions of this chapter. Provided,

however, that any such moneys collected as fines, penalties or

forfeitures as a result of a prosecution for a violation of any of the

provisions of article sixteen and sixteen-a of this chapter and all bail

forfeited by persons charged with such violations shall be the property

of the county or city, as the case may be, in which the alleged offense

was prosecuted and shall be paid to the treasurer, or corresponding

fiscal officer, of such county or city, except that any such moneys and

any such bail forfeitures, collected by the town justices or by village

justices shall be paid to the state comptroller in accordance with

section twenty-seven of the town law and section 4-410 of the village

law, respectively.

Refunds. 1. Moneys heretofore or hereafter received by the

department pursuant to this chapter may, within one year from the

receipt thereof, be refunded to the party for whose account same were

received, on proof satisfactory to the commissioner that:

a. Such moneys were in excess of the amount required by law.

b. The license for which application was made has been refused by the

commissioner.

c. Such moneys were received as payment for services or materials and

such services have not been rendered or such materials furnished.

d. Such moneys were received as rental or concession fees and the

applicant for such concession or lease has, by acts or omissions of the

department, been deprived of the use of the leased premises or has been

prevented from operation of the concession for the whole or a portion of

the term of such lease or concession agreement; provided, however, that

no such refund shall be for a greater proportion of the total rental or

concession fee than the period of such loss of use bears to the period

of such lease or concession agreement.

2. Such refunds shall, upon approval by the commissioner and after

audit by the comptroller, be paid from any moneys in the custody of the

department received as license fees, sales of materials, fees for

services or for rentals, or fees for grants of concessions.

3. Whenever any person, firm, corporation or cooperative association

has filed with the commissioner any surety bond or other security and

fails to perform the conditions for which such surety bond or security

was pledged, the commissioner may, after audit by the comptroller,

distribute any proceeds therefrom in the manner provided by this

chapter.

4. When the conditions under which any security (other than a surety

bond) filed with the commissioner have been fully discharged, the

commissioner may return such security to the person filing the same,

together with any interest or income which may have accrued thereon; and

the commissioner may also, from time to time and after audit by the

comptroller, pay to the depositor any intermediate interest or income

accruing from such security.

5. Nothing contained in this section shall in any way supersede, alter

or amend the provisions of section thirty-one-c of this chapter.

Unauthorized possession, sale, or exchange of food order

stamps issued under food stamp plan. Any person, other than a person

authorized by the regulations and conditions prescribed by the secretary

of agriculture of the United States governing the food stamp plan, who

shall have in his possession, or who shall purchase sell or exchange any

food stamps, books, book covers or any other instruments or documents

relating to food stamps, for money or for any article or articles other

than those foods authorized by the regulations and conditions prescribed

by the secretary of agriculture of the United States governing the food

stamp plan, or for food the value of which is less than the face amount

of such food stamps, or in any other manner in violation of the

regulations and conditions prescribed by the secretary of agriculture of

the United States governing the food stamp plan, shall be guilty of a

misdemeanor. As used herein, the word "person" shall mean any

individual, partnership, corporation, or association, whether or not

such individual, partnership, corporation or association is eligible to

participate or is participating in the food stamp plan.

Misuse of food commodities donated by the United States. Any

person who shall wilfully sell or make any other unauthorized

disposition of any food commodity donated under any program of the

United States government or whoever, not being an authorized recipient

thereof, willfully converts to his own use or benefit any such food

commodity shall be guilty of a misdemeanor.

Declaration of policy. It is hereby declared that the dairy

industry is a paramount industry of the state and the production,

processing, packaging, distribution and sale of milk products has become

an enterprise of vast economic importance to the state and of vital

importance to the consuming public of the state, and which should be

encouraged and promoted in the public interest. It is further declared

that milk and milk products have long been accepted by the consuming

public as wholesome and nutritious articles of food. Advances in food

technology have resulted in the development of a variety of products for

similar usage including dairy foods with different composition than

products now defined as well as products made with vegetable oils and

proteins from sources other than dairy products, products which are

similar in appearance, odor, or taste to dairy products, and which are

difficult to differentiate from dairy products. It is further declared

to be in the interest of the dairy industry and the consuming public to

promote and encourage the development of new and different dairy

products with varying proportions of fat, solids and other ingredients,

including wholesome ingredients not now permitted in dairy products but

which may be used without restriction in non-dairy products which are

similar in appearance, odor or taste to dairy products. It is also

declared to be in the interest of the dairy industry and particularly in

the interest of the consuming public, that to the fullest extent

possible, there be uniformity of definitions and standards for milk and

milk products and in the labeling of milk and milk products between the

various states to the end that there may be free movement of milk and

milk products between states, and further to the end that the

inefficiency, needless expense, and confusion caused by differences in

products sold under the same name, and differences in labeling of

identical products may be eliminated.

Regulations. The commissioner shall, after public hearing,

promulgate definitions and standards for milk and milk products, and for

products other than milk and milk products, which products are similar

in appearance, odor or taste to milk and milk products, together with

rules and regulations for the packaging and labeling of all such

products, and other conditions relating to the manufacture, processing,

packaging, distribution and sale of all such products including

sanitation pertaining to manufacture, processing, handling,

distribution, surroundings, grounds, equipment, personnel and

pasteurization of such products. Such regulations shall apply to all

sources including farms where such milk is produced. A copy of all such

rules and regulations governing sanitation shall be provided to the

state commissioner of health fifteen days prior to the public hearing.

The commissioner is further empowered to promulgate rules and

regulations by which milk may be standardized, including the plants at

which such standardization may be done and may provide that

standardization may be done only at plants which are duly licensed and

specifically approved by the commissioner to perform such

standardization. The commissioner may provide in such rules and

regulations for different standards and labeling for products

manufactured within the state and sold out of state.

Care and feed of cows, and care and keeping of milk. No person

shall keep cows, for the production of milk for market or for sale or

exchange, or for manufacturing the milk or cream from the same into any

article of food, in a crowded or unhealthy condition or in unhealthful

or unsanitary surroundings and no person shall keep such cows or the

product therefrom in such condition or surroundings or in such places as

shall cause or tend to cause the produce from such cows to be in an

unclean, unhealthful or diseased condition, if the produce from such

cows is to be sold, offered or exposed for sale upon the markets for

consumption or to be manufactured into any food product, nor shall such

cows or the produce therefrom be handled or cared for by any person

suffering with or affected by an infectious or contagious disease, nor

shall any such cows be fed on any substance that is in a state of

putrefaction or fermentation, or upon any food that is unhealthful or

that produces or may produce impure, unhealthful, diseased or

unwholesome milk. But this section shall not be construed to prohibit

the feeding of ensilage.

No person having milk in his possession for the purpose of selling the

same for consumption as such or for manufacturing the same into butter,

cheese, evaporated or condensed milk or other food shall keep the same

in utensils, cans, vessels, rooms or buildings that are unclean or have

insanitary surroundings or drainage or in any condition whatsoever that

would tend to produce or promote conditions favorable to unhealthfulness

or disease. The commissioner shall notify all persons violating this

section to clean said utensils, cans, vessels, rooms or buildings or to

so improve the sanitary conditions that the foregoing provisions will

not be violated; and if such notice is complied with within ten days no

presecution, civil or criminal, for a violation of this section shall be

instituted.

Regulating the handling and sale of products made from

recovered milk fat and solids. Notwithstanding any other provisions of

this chapter, it shall not be unlawful to recover milk fat and other

milk solids

(a) from mixtures of milk and potable water produced in the operation

of high-temperature short-time pasteurizers or

(b) from rinsings or drippings recovered from cans or equipment used

in the handling of milk and milk products, provided such rinsings or

drippings do not contain excessive foreign substance, or

(c) from whey or to use such fat and such other milk solids in

(1) products in the manufacture of which milk fat, other milk solids

and water are permitted ingredients, or

(2) in the manufacture of butter and skimmed milk powder (nonfat

dry-milk solids).

The commissioner is hereby authorized to promulgate regulations

governing the handling, manufacturing and marketing of such mixtures,

rinsings, drippings and whey and the products made therefrom, and may

prescribe standards for such products.

Receptacles to be cleansed before returning; receptacles may be

seized; evidence; violation. Whenever any can or receptacle is used for

transporting or conveying milk, cream or curd to market for the purpose

of selling or furnishing the same for consumption as human food, or for

manufacturing into human food, which can or receptacle, when emptied, is

returned or intended to be returned to the person so selling, furnishing

or shipping such substance to be again thus used, or which is liable to

continued use in so transporting, conveying, selling or shipping such

substance as aforesaid, the consumer, dealer or consignee using, selling

or receiving the milk, cream or curd from such can or receptacle, shall,

before so returning such can or receptacle remove all substances foreign

to milk therefrom, by rinsing with water or otherwise. When any such

milk, cream or curd is sold within any city of this state or shipped

into any such city, the fact of such shipment or sale shall be prima

facie evidence that the same was so shipped or sold for consumption as

human food or to be manufactured into human food. When any such can or

receptacle is returned or delivered or shipped to any person or creamery

so selling such substance within, or shipping the same into such city,

it shall be deemed that such can or receptacle is liable to such

continued use in so selling or shipping such substance therein for

consumption as human food within the meaning and purposes of this

article. No person shall place or suffer to be placed in any such can or

receptacle any sweepings, refuse, dirt, litter, garbage, filth or any

other animal or vegetable substance, nor shall any such consignee or

other person through himself, his agent or employee, bring or deliver to

any person or railroad or other conveyance any such can or receptacle

for the purpose of such return, or any milk, cream or curd can or

receptacle for the purpose of delivery or shipment to any person or

creamery engaged in so selling or shipping such substances for

consumption as human food, which can or receptacle contains such foreign

substance or which has not been rinsed as herein provided. The word

"curd" as used in this article applies to the substance otherwise known

as "pot cheese" or "cottage cheese." Whenever any such can or receptacle

is used, returned, delivered or shipped in violation of this article

every such use, return, delivery or shipment of each such can or

receptacle shall be deemed a separate violation thereof. Such cans or

receptacles so used, returned, delivered or shipped in violation of this

article may be seized by the commissioner, his assistants or agents and

held as evidence of such violation.

Insanitary cans and receptacles condemned. All cans, or

receptacles used in the sale of milk, cream or curd for consumption, or

in transporting or shipping the same to market or the delivery thereof

to purchasers for consumption as human food, when found by the

commissioner or his assistants or agents to be in unfit condition to be

so used by reason of being worn out, badly rusted, or with rusted inside

surface, or unclean or insanitary or in such condition that they can not

be rendered clean and sanitary by washing, and will tend to produce or

promote in milk, cream or curd when contained therein, bad flavors,

unclean or unwholesome conditions favorable to unhealthfulness or

disease, shall be condemned by the commissioner or his assistants or

agents. Every such can or receptacle when so condemned shall be marked

by a stamp, impression or device, designed by the commissioner, showing

that it has been so condemned, and when so condemned shall not

thereafter be used by any person for the purpose of so selling,

transporting or shipping milk, cream or curd.

Legislative finding and declaration of policy. It is hereby

declared that cream, half and half, milk and mixtures of milk and cream

have long been accepted by the consuming public; recognized as wholesome

and nutritious articles of food, and their composition generally

understood by consumers.

Advances in food technology have resulted in the development of a

variety of products for similar usage including dairy foods of lower

butterfat and blends made with vegetable oils and with proteins from

sources other than dairy products; products which are so similar in

appearance, odor and taste that they are difficult to differentiate from

dairy products. It is further declared to be the purpose of this article

to promote honesty and fair dealing in the interest of consumers, to

insure fair competition with a highly regulated dairy industry which is

of considerable economic importance to the economy of the state and to

prevent confusion and deception in the sale of such foods by

establishing definitions and standards of identity for such foods, and

by providing for rules and regulations which will effect their orderly

marketing and insure similar sanitary standards.

It is the further intent of the legislature, in view of the well known

nutritional qualities of whole milk (including standardized milk) and

other dairy products that the burden of proof of nutritional claims of

products offered for sale to consumers which have the appearance, odor

and taste of whole milk (including standardized milk) or other dairy

products is placed on the persons or corporations offering the product

or products for sale to consumers.

Definitions and standards of identity. As used in this section

the terms "melloream" or "a vegetable oil blend" mean any substance,

mixture or compound regardless of the name by which it is represented,

which contains vegetable fats or oils and proteins derived from animal

or vegetable sources, and whose appearance, odor and taste is similar to

cream, half and half, milk or a mixture of milk and cream, to the point

of rendering these products difficult to differentiate from each other.

Licenses to manufacturers of melloream. 1. No person shall

engage in the manufacture or production of melloream in the state of New

York or for sale or distribution in the state of New York unless duly

licensed as provided in this article or unless licensed as a milk dealer

pursuant to article twenty-one of the agriculture and markets law.

2. Application for a license shall be made upon a form prescribed by

the commissioner and shall include such facts concerning the applicant's

status and operations as are deemed necessary by the commissioner for

administration of this article. A license shall be for a period not to

exceed two years and a renewal of license must be duly made at least

thirty days in advance of the expiration date. The license fee pursuant

to this article for the license period for a person who is not otherwise

licensed as a milk dealer pursuant to article twenty-one of the

agriculture and markets law shall be fifty dollars for each manufactory,

plant or place where melloream is manufactured or produced.

3. No license issued pursuant to this article to a manufacturer of

melloream shall be denied or revoked unless the commissioner finds by a

preponderance of evidence, after due notice and opportunity of a hearing

to the applicant or licensee, that such person is not in compliance with

or is in violation of any of the provisions of this article or

regulations of the commissioner governing the manufacture and labeling

of melloream.

Entry, inspection and investigation. Any person designated for

the purpose shall have access to and may enter at all reasonable hours

all places where melloream is being manufactured, packaged or stored for

sale or distribution in the state of New York, where melloream is

otherwise being handled or sold in the state of New York, or where the

books, papers, records or documents relating to such transactions are

kept, and shall have power to inspect and copy the same, and may

administer oaths and take testimony for the purpose of ascertaining

facts which in the judgment of the commissioner are necessary to

administer this article. The commissioner may inspect a plant beyond the

boundary of the state, and when he does, the applicant or licensee

shall, prior to such inspection, agree to pay, in addition to the

license fee provided pursuant to subdivision two of section fifty-g of

this article, fees for the inspection of the plant by the commissioner

or his representatives. Such fees shall be twenty-five dollars for each

day consisting of seven hours or part thereof during which an employee

of the commissioner spends traveling to and from and inspecting the

plant. In addition the applicant or licensee shall agree to pay all

necessary expenses including but not limited to expenses for traveling,

lodging and meals. The commissioner may, if satisfied with the adequacy

of inspection by some other regulatory agency, and if satisfied that

there is substantial compliance with the regulations of the

commissioner, forego actual inspection of such out-of-state plant or

plants.

Labeling of melloream and vegetable oil blends. Whenever the

brand name of melloream or a vegetable oil blend, as defined in section

fifty-f, appears on the container so conspicuously as to be seen under

customary conditions of purchase, there shall immediately and

conspicuously precede or follow the brand name or product designation

without intervening written, printed or graphic matter in letters at

least one-third of the size of the brand name and on a contrasting

background, any one of the following statements: "melloream," "a

vegetable blend," "a vegetable oil product," "not a dairy product," and

the words "milk," "cream," "half and half," or "a mixture of milk and

cream" shall not be used on the package label of melloream or vegetable

oil blends except to the extent that there shall also appear on the

label an accurate list of ingredients. In the event that a product under

this section shall contain an ingredient which has been derived from

milk or a milk by-product or during its formation has used milk or a

milk by-product, the ingredient labeling shall after specifying the name

of the ingredient, place in parentheses the words "milk derived".

Persons or corporations offering such products for sale shall upon

request by the commissioner submit to him evidence in support of any

nutritional claims made for such products through advertising, labeling

or public announcement, and failure to submit such evidence or to revise

such claims in the manner suggested by the commissioner shall be

presumed to be a misbranding of said products within the meaning of

section two hundred one of this chapter.

Serving melloream, vegetable oil blends and cream in

restaurants and other public eating places. Whenever melloream, a

vegetable oil blend, cream, half and half, milk or a mixture of milk and

cream is served in a restaurant, hotel, boarding house, lunch counter,

place of entertainment, public eating place or any establishment where

food is sold for consumption on the premises, the name of the product

served should be clearly stated by label, sign or menu statement in a

manner likely to be read by the customer.

Rules and regulations. The commissioner shall from time to

time, after inquiry and public hearing, promulgate and adopt rules and

regulations to supplement and give full effect to the provisions of

section fifty-e. Such rules and regulations shall establish sanitary

regulations pertaining to the manufacture, packing and distribution of

melloream and vegetable oil blends, including the sanitary condition of

buildings, ground, and equipment where melloream and vegetable oil

blends are manufactured and the sanitary condition of the ingredients

and of the persons in direct physical contact with melloream and

vegetable oil blends during manufacture. Such sanitary rules and

regulations shall be equal to those established for dairy products.

Milk inspection. The commissioner or his agent, in inspecting

milk for the purpose of analysis to determine the percentage of fat or

other milk solids, shall take duplicate samples thereof and shall seal

both samples, and shall tender, and, if accepted, deliver one sample to

the person from whom the milk was taken. When samples are taken from the

producer of the milk sampled or his agent, at a place other than the

dairy where the milk was produced, the commissioner or his agent shall

within ten days thereafter, with the consent of the producer, take

duplicate samples of the mixed milk of the herd of cows from which the

milk first sampled was drawn, and shall deliver one such sample to the

producer or his agent and shall submit the other to analysis. If upon

analysis it proves to contain no higher percentage of milk solids, or no

higher percentage of fat, or has no lower freezing temperature than the

sample first taken, then no action shall lie against the producer for

violation of standards as established by the commissioner pursuant to

the provisions of section forty-six-a. If the producer refuses to allow

such herd sample to be taken, then the producer shall be precluded from

offering any evidence that the milk from which the first sample was

taken was just as it came from the cow. Where a sample of milk taken by

the commissioner or his agent consists of the entire contents of a

container unopened at the time of taking, no duplicate need be taken or

tendered or delivered.

Presumptions in regard to cream and skim milk. When cream is

separated or skimmed from milk at any station or establishment where

milk is received from producers for the purpose of selling the same or

shipping the same to market for consumption as food and the supply of

milk on hand thereat at the time of the next regular daily shipment of

milk therefrom, consisting of the total amount of milk in such shipment,

together with that remaining on hand immediately after such shipment, is

not thereby decreased or correspondingly less than the total quantity

received during any period extending from some point of time before such

skimming was done until the time of such shipment, together with the

amount of milk on hand at the commencement of such period, and such

decrease is not equal in amount to the quantity of milk that must have

been used in so separating such cream in addition to the quantity

otherwise there used or disposed of during such period, such fact is

conclusive that skim milk or other foreign substance was added to such

milk supply within such period and shall be presumptive evidence within

the meaning of this section that the same was added to each can or

vessel of milk in such shipment. When cream or skim milk is found to

have been on the premises of any such station or establishment or is

sold or shipped therefrom, such cream or skim milk so found or so sold

or shipped therefrom shall be presumed to have been produced by

separating or skimming at such station or establishment. In any action

or proceeding relative to the adulteration of milk by removing cream

therefrom or adding skim milk or other foreign substance thereto, it

shall be presumed that when cream has been produced by so skimming or

separating or butter has been manufactured, there was made at least five

quarts of milk in the production of each quart of cream so produced and

there was necessarily so produced thereby at least four quarts of skim

milk to each quart of cream so produced, and that there was used at

least nine quarts of milk in the production of each pound of butter so

manufactured.

Regulations in regard to manufactories, plants or places where

milk or cream is brought or received. No person shall sell, supply or

bring to any butter or cheese factory or to any plant or place which

manufactures a food product from milk or which ships or sells milk for

consumption any milk diluted with water, or any unclean, impure,

unhealthy, adulterated or unwholesome milk, or milk from which any of

the cream has been taken, except pure skim milk to skim-cheese

factories. No person shall sell, supply or bring to be manufactured to

any butter or cheese factory or to any plant or place which manufactures

a food product from milk or which ships or sells milk for consumption

any milk that is sour or from which has been kept back any part of the

milk commonly known as strippings, except pure skim milk to skim-cheese

factories. The owner or proprietor or the person having charge of any

such manufactory, plant or place where milk is received for any such

purpose, not buying all the milk used by him, shall not use for his own

benefit, or allow any of his employees or any other person to use for

his own benefit, any milk, cream, butter or cheese or any other product

thereof, brought to such factory, without the consent of the owners of

such milk or the products thereof. Every such manufactory, plant or

place not buying all the milk used, shall keep a correct account of all

the milk or cream daily received, of the number of packages of butter

and cheese made each day, and the number of packages and aggregate

weight of cheese and butter disposed of each day; which account shall be

open to inspection to any person who delivers milk to such manufactory,

plant or place. Every purchaser or receiver of milk from the producer

thereof, for manufacturing purposes or for reselling the same, shall on

written request therefor, tender daily thereafter at time of delivery to

such producer, or to the person delivering such milk to such purchaser

in behalf of such producer, a written statement of the amount of milk so

received or purchased until or unless such producer notifies such

purchaser in writing that he no longer desires such statement; such

statement shall give, first, the name of the producer or seller, second,

the date of delivery, third, the amount so delivered, fourth, shall be

signed by the purchaser or his duly authorized representative; such

statement shall be given in the terms of the unit used as a basis for

determining the value thereof. Such purchaser or receiver shall, at each

periodical time of payment for such milk, give each such producer, so

delivering milk, a statement showing the amount of milk delivered during

the periodical time for which payment is made, and the average per

centum of butter fat test of same, provided payment is made on basis of

butter fat content.

Any person having charge of a milk gathering station or establishment

as aforesaid shall keep a true and correct monthly record of the

receipts of milk or other dairy products received at such station or

establishment, and also a true and correct monthly record of all sales

or shipments of milk, cream or other dairy products shipped or sold from

such station or establishment, and shall also keep a true and correct

monthly record of the amount of skim milk produced in such station or

establishment and of the disposition of said skim milk. Such record

shall be preserved at such station or establishment for at least two

years after the same shall have been made and such records shall at all

times be open to the inspection of the commissioner, his assistants or

agents. When cream is sold or shipped from any such station or

establishment so selling or shipping milk for consumption as aforesaid,

each original bottle or package of one quart or less of cream so shipped

or sold shall bear a label securely attached to the side of such bottle

or package on which shall be conspicuously printed the word "cream" in

black letters of at least one-fourth of an inch in length or else the

word "cream" shall be blown in the side of such bottle in plain raised

letters of at least one-half an inch in length, and the top and side of

each and every other original package or can containing cream or

original crate or case containing bottles of cream so shipped or sold

shall bear a label securely attached on which shall be conspicuously

printed the word "cream" in black letters of at least one inch in length

and also a plainly written or printed statement on the label stating

from whom and what station the same is shipped and the name of the

consignee and point of destination and date on which the cream therein

was produced by such separation or skimming. The shipment of each and

every such original package of cream so shipped and not so labeled as

herein required shall constitute a separate violation.

Skimmed milk, whey, buttermilk or milk container or plant

equipment rinsings to be heated before being used for feeding. Any

person operating any butter factory, cheese factory or other milk plant,

before delivering to any person any skimmed milk, whey, buttermilk or

milk container or plant equipment rinsings, to be used for the feeding

of domestic animals, shall cause such by-product to be uniformly heated

to a temperature of not less than one hundred and forty-three degrees

Fahrenheit and held at such temperature for at least thirty minutes, or

to be uniformly heated to a temperature of one hundred and seventy

degrees. No such by-product shall be used for the feeding of domestic

animals until heated as provided herein.

Determination of the content of milk and/or cream where purchase

or settlement therefor is made on the basis of such content. 1. The

commissioner shall, after public hearing, prescribe, by rules and

regulations, the methods, equipment, and procedures, including the

calibration and use of electronic equipment, which shall be used in

determining the percentage of the components of milk and/or cream where

the result of such determination is to be used wholly, or in part, as a

basis for payment or settlement for such milk and/or cream, or where the

proceeds of co-operative creameries or such milk-receiving or

manufacturing plants are allotted on the basis of the determination of a

component or components of milk, or where the result of such test is

used for the purpose of official inspection or for public record.

2. Whenever the amount of a milk component or components contained in

milk and/or cream is used wholly or in part as a basis for payment or

settlement for such milk and/or cream, or whenever such component, or

components, of milk and/or cream are made a matter of public record or

official inspection, no person or persons shall report or record a

greater or lesser percentage or average percentage of such milk

component than is actually contained in such milk and/or cream. The

commissioner or persons employed by him for that purpose may at any time

inspect the equipment and assist in making tests of milk and/or cream

received at any milk-receiving or manufacturing plant or other place of

testing for the purpose of determining the accuracy of tests so made.

3. Any person or persons using other than the method, equipment and

procedures prescribed by the commissioner pursuant to this section, or

crediting any patron delivering milk and/or cream with a greater or

lesser percentage or average percentage of a milk component than is

actually contained in such milk and/or cream so delivered and as

determined by such prescribed method or methods shall be deemed to have

violated the provisions of this chapter.

4. For the purposes of this article, components of milk or cream shall

include non-fat solids, milk fat, protein, lactose and total solids

contained in milk or cream.

Taking of composite sample; record of tests. Corporations,

associations or persons buying milk and/or cream from producers of milk

and/or cream to be paid for on the basis of the percentage of a

component or components of such milk or cream and taking samples

therefrom to form a composite sample to be tested periodically to

determine its value on such basis, shall, at the request of the

producer, or of his agent designated in writing, take such samples in

duplicate and subject them to the same treatment. At the end of the

period for which the composite samples were taken, such corporation,

association or person shall tender same to the producer thereof, or to

his authorized agent, and give such producer, or his authorized agent,

the choice of one of the two composite samples so taken. Such producer,

or his authorized agent, may send such duplicate composite sample,

properly marked for identification of the component or components upon

which payment or settlement for the milk is based and with the

producer's name and post office address, to the New York State food

laboratory of the department within three days from the receipt thereof.

Such laboratory shall cause such sample to be tested for the per centum

of such component or components contained therein, and shall cause a

report of such test to be sent to the producer or to his authorized

agent, from whom it was received within ten days thereof, or as soon

thereafter as possible. Persons testing composite samples of milk and/or

cream taken from milk or cream bought or received from producers, where

the value thereof is determined by the percentage of a component or

components contained in such milk or cream, shall preserve intact the

remaining portion of the sample from which the test was made, and in the

case of milk keep the same for at least ten days and in the case of

cream keep the same for at least one day after the making of such test,

for the purpose of permitting the commissioner or his duly authorized

representative to examine and test the same. Whenever a producer shall

designate in writing his authorized agent, the period for which such

authorization shall be in effect shall be stated and the time or times

when such duplicate composite sample or samples shall be tendered to the

authorized agent. The corporation, association or person buying such

milk and/or cream shall permit the authorized agent to collect the

samples so chosen.

Persons making such tests of samples of milk and/or cream so purchased

or received shall, immediately after such tests are completed, prepare a

list containing the names or numbers of the producers whose milk and/or

cream was so tested, and place opposite each such producer's name or

number the percentage of each component or components, upon which

payment or settlement is based, found to have been contained in the

sample of milk and/or cream representing the milk and/or cream delivered

by each such producer. Such lists so prepared shall be made with

indelible pencil or permanent ink and shall be filed in the plant or

place where such milk and/or cream is bought or received, and each such

list shall be duly signed by the person making such tests and preparing

such lists, and such person shall place beneath his signature the number

of the state license under which he is testing.

All such lists shall be kept as a record for at least one year and

shall be open to examination at all times by the commissioner or his

duly authorized representative. At any time, upon request of any

producer, or his authorized agent, the purchaser or receiver of such

milk and/or cream shall permit such producer to examine such part of

said record as contains information concerning the samples of milk

and/or cream representing the milk and/or cream delivered by such

producer. Every such purchaser or receiver of milk and/or cream from the

producer thereof shall, on written request therefor, made by the

producer or by his authorized agent, mail or deliver to the producer or

his authorized agent, at each time thereafter when such list is made a

written statement of the percentage of the component or components, upon

which payment or settlement was based, found to have been contained in

the sample or samples representing the milk and/or cream delivered by

such producer.

Without the written permission of the commissioner, no sample of milk

and/or cream so tested by the purchaser or his representative shall be

tested at a plant or place other than the one where received, nor

without such permission shall any such sample of milk be removed from

any such plant or place where tested within ten days from the date of

testing, nor shall any such sample of cream be removed therefrom within

one day from such date of testing.

Determination of bacteria in milk and/or cream where purchase

or settlement is made therefor on the basis of bacterial count. In

milk-receiving or manufacturing plants and other places using methods

approved by the commissioner for determining the bacterial count in milk

and/or cream, where the result of such determination is to be used

wholly or in part as a basis for payment or settlement for such milk or

cream, or where the proceeds of co-operative creameries or such

milk-receiving or manufacturing plants are allotted on the basis of the

bacterial count, no pipette or syringe shall be used in such

determination unless the same has been legibly and indelibly marked with

the letters "N. Y." by the commissioner or by his duly authorized

representative. No such pipette or syringe shall be so marked unless it

has been found upon examination to be so constructed and graduated as to

deliver accurately the amount of liquid required for the determination.

The provisions of this article, however, shall not preclude the use of a

pipette already marked "S. B." or "N. Y.", by the director of the New

York state agricultural experiment station.

Whenever the bacterial count of such milk and/or cream is used wholly

or in part as a basis for payment or settlement for such milk and/or

cream, or whenever the bacterial count affects the classification of the

milk and/or cream as received from the producer, or the acceptance or

rejection of such milk and/or cream by the operator of a milk-receiving

or manufacturing plant, no person or persons shall report or record a

larger or smaller bacterial count than that obtained by the actual

examination of the milk and/or cream so delivered by the producer. The

commissioner or persons employed by him for that purpose may at any time

inspect the equipment and assist in making bacterial counts of milk

and/or cream received at any milk-receiving or manufacturing plant or

other place where counts are made for the purpose of determining the

accuracy of the counts so made.

Any person or persons using other than the properly marked pipettes or

syringes or crediting any patron delivering milk and/or cream with a

larger or smaller bacterial count than that obtained by the actual count

of the bacteria in the milk and/or cream so delivered and as determined

by the method or methods approved by the commissioner shall be deemed to

have violated the provisions of the agriculture and markets law.

Licensing of persons in charge of milk-gathering stations,

manufactories or plants; licensing of persons sampling milk and/or cream

and/or determining weight or volume of milk and/or cream; and of persons

making milk component tests. 1. No person shall take charge, either as

superintendent, manager or otherwise, of any milk-gathering station,

manufactory or plant where milk and/or cream is received from producers

for sale or resale or for manufacture, unless licensed by the

commissioner.

2. No person shall measure, weigh, or otherwise determine the volume

or weight of milk and/or cream received from or offered for sale by the

producer thereof or sample such milk and/or cream, or handle, or prepare

such milk and/or cream samples when such samples are to be used for the

purpose of determining the amount of a milk component or components

contained therein, and/or to determine the bacterial count thereof, or

for any other purpose where the result of such test or examination is

used as a basis for payment for such milk and/or cream, for the

classification of such milk and/or cream, for the rejection or

acceptance of such milk and/or cream, or for official inspection, or for

public record, unless licensed by the commissioner provided, however,

that the provisions of this section shall not be deemed to apply to any

person employed by the state department of health or any municipal

department of health in New York state when performing his official

duties for such health agency. Such license shall be designated as a

"milk receiver's license."

3. No person shall prepare or test milk and/or cream samples by any

method, for the purpose of determining the amount of any milk component

contained therein, where the result of such test is used as a basis for

payment for such milk and/or cream, or for official inspection or for

public record, unless licensed by the commissioner.

4. Application for a license, or licenses shall be made upon a form

prescribed by the commissioner. The applicant shall furnish satisfactory

evidence of good moral character, and shall give proof of his ability to

perform the functions for which a license is applied, to the

satisfaction of the commissioner. The commissioner, in his discretion,

may combine in one license authority to perform any of the functions for

which a license is required pursuant to the provisions of subdivisions

one, two and three of this section. A license shall be for a period not

exceeding five years, and may be renewed, in the discretion of the

commissioner, for successive periods of not exceeding five years each.

Each license shall be kept at the place where the licensee is employed

and shall be open to inspection.

A license may be revoked by the commissioner, after a hearing upon due

notice to the licensee, for false statement in the application,

dishonesty, incompetency, inaccuracy or a violation of the provisions of

this article, and a license to take charge of a milk-gathering station,

manufactory or plant may also be revoked for dishonesty, incompetency,

inaccuracy, or a violation of the provisions of this article by any

person working under the direction of the licensee and subject to his

orders.

Licensing of persons making bacterial counts of milk and/or

cream or making tests of milk and/or cream to detect certain

abnormalities. No person shall test milk and/or cream in order to

determine the bacterial or leucocyte count or make other tests to

determine the presence or absence of abnormal milk, where the results of

such test affects the rate of payment to the producer for such milk

and/or cream, the classification of milk and/or cream as received from

the producer, or the acceptance or rejection of such milk and/or cream

by the operator of a milk-receiving or manufacturing plant, unless

licensed by the commissioner. Application for such license shall be made

upon a form prescribed by the commissioner. The applicant shall furnish

satisfactory evidence of good moral character, and shall demonstrate his

ability to make such tests by an examination under the direction of the

commissioner. A license shall be for a period not exceeding five years.

A license may be renewed in the discretion of the commissioner, without

an examination, for successive periods of not exceeding five years each.

Each license shall be kept at the place where the licensee is engaged

in testing milk and/or cream and shall be open to inspection.

A license may be revoked by the commissioner, after a hearing upon due

notice to the licensee, for dishonesty, incompetency, inaccuracy or a

violation of the provisions of this article.

Powers of the department concerning oleomargarine. The

department through the commissioner shall have power and it shall be its

duty to:

1. Investigate, inspect and supervise the sale and exposure for sale

of oleomargarine for home consumption.

2. Investigate, inspect and supervise the sale and serving in public

eating places of oleomargarine.

3. Make and enforce reasonable rules and regulations implementing the

provisions of this chapter relating to the manufacture, production and

sale of oleomargarine.

Nothing contained in this section shall be deemed or construed to

limit in any way the effect of any other provision of this chapter

conferring a power or imposing a duty upon the department or the

commissioner.

Manufacture, sale, and use of oleomargarine. 1. Definitions.

For the purposes of this section, the following terms shall have the

following meanings:

(a) "Person" means any person, firm, corporation, copartnership,

association, co-operative corporation, or unincorporated co-operative

association.

(b) "Oleomargarine" or "margarine" means any oleaginous substance,

sold or exposed for sale, as a substitute for, or to take the place of,

or used for the same purpose or purposes as butter, or having the

appearance, odor, or taste which is similar to butter, and which is not

made exclusively of milk or cream, or any substance into which any oil

or fat other than that obtained from milk or cream has been introduced

to take the place of butterfat. The terms include oleomargarine of any

shade or color.

(c) "Public eating place" means any hotel, boarding house, restaurant,

saloon, lunch counter, place of public entertainment or any other place

where prepared or cooked food is offered for sale to the public for

consumption on the premises. When a hotel or other establishment

operates more than one public eating place, each such place shall be

deemed to be a separate public eating place. It shall be deemed to

include camps, dude ranches, and other similar establishments operated

for profit even though restricted to a certain age, or other distinctive

group, but shall not be deemed to include religious, charitable or

private camps.

2. Fat standard. Oleomargarine manufactured, sold, offered or exposed

for sale shall contain not less than eighty per centum of fat.

3. Notice to consumers. Consumers shall be given notice of the use of

oleomargarine in public eating places under the following conditions and

in the following manners.

(a) If oleomargarine is served directly to the customer or is placed

on the table or counter where the customer is served notice of such

serving shall be given.

(b) If oleomargarine is served in such a manner that the customer

cannot identify it, notice of such serving shall be given, provided,

however, that use of oleomargarine in preparation of cooked or other

foods, in which the identity of the oleomargarine is lost, shall not

require notice.

(c) Form of notice. Notice shall be given in such a manner that it is

likely to be seen and understood by each person being served. If the

public eating place is such that a single sign can be readily seen by

each person being served, such sign shall be sufficient; otherwise

notice shall be given by signs so located that one can be seen by each

customer, or by notice on menus given to each customer.

(d) Wording of notice. If oleomargarine is served on the tables or

counters where customers are served, the notice shall read as,

"Oleomargarine served here" or "margarine served here", provided,

however, that if the oleomargarine is not served or used in any other

manner notice may be given by a label on or accompanying the

oleomargarine and identifying it as such. If oleomargarine is served in

other ways, the notice shall be the same as hereinabove provided, or may

specify the food or foods with which the oleomargarine is served.

4. Rules and regulations. The commissioner is authorized, after due

notice and hearing, to issue such rules and regulations as are necessary

to carry out the provisions of this section.

Coloring matter, dairy terms, size of package, labeling, false

advertising. No person, manufacturing with intent to sell, any substance

or article to be used as a substitute for cheese and which is not made

exclusively from unadulterated milk or cream or both, with or without

salt or rennet or both but into which any animal, intestinal or offal

fats, or any oils or fats or oleaginous substance of any kind not

produced from pure, unadulterated milk or cream, or into which melted

butter, or butter in any condition or state or any modification of the

same, or lard or tallow shall be introduced, shall add thereto or

combine therewith any annatto or compounds of the same, or any other

substance or substances whatever, for the purpose or with the effect of

imparting thereto a color resembling yellow, or any shade of yellow

cheese, nor introduce any such coloring matter or other substance into

any of the articles of which the same is composed. No person

manufacturing, selling or offering for sale any oleaginous substance not

made from pure milk or cream from the same, designed to take the place

of butter, shall make or sell the same under any brand, device or label

bearing words indicative of cows or the product of the dairy or the

names of breeds of cows or cattle, nor use terms indicative of processes

in the dairy in making or preparing butter; no oleaginous substance not

made from pure milk or cream from the same, designed to take the place

of butter, shall hereafter be sold, offered or exposed for sale in this

state unless

(1) such substance is packaged,

(2) the net weight of the contents of any package thereof sold in a

retail establishment is one pound or less,

(3) there appears on the label of the package (a) the word

"oleomargarine" or "margarine" in type or lettering at least as large as

any lettering on such label, (b) a statement of the net weight of the

contents of the package, and (c) a full and accurate statement of the

ingredients contained in such substance, and

(4) each part of the contents of the package is contained in a wrapper

which bears the words "oleomargarine" or "margarine" in type or

lettering not smaller than twenty point type.

No person, firm, association or corporation shall, in connection or

association with the sale or exposure for sale, advertisement, or on the

package, of any substance designed to be used as a substitute for

butter, represent or suggest by any means whatever that such substance

is a dairy product, except that nothing herein contained shall prevent

an accurate statement of any of the ingredients contained in such

substance.

Labeling of imitation cheese; imitation cheese food and products

containing imitation cheese. 1. Whenever the brand name or product

designation of imitation cheese or imitation cheese food appears on a

package, the brand name or product designation, whichever is larger,

shall be immediately preceded, without intervening printed or graphic

material by the word imitation and the name of the food imitated, in

letters of the same color and on the same contrasting background and of

equal size as the brand name or product designation, whichever is

larger.

2. On the label of any product containing imitation cheese or

imitation cheese food, the product designation shall be immediately

preceded or followed by the words "contains imitation cheese" or

"contains imitation cheese food" whichever is appropriate, in letters of

the same color and on the same contrasting background and of equal size

as the product designation.

3. Whenever imitation cheese or imitation cheese food is used in a

product which is offered for sale for carry out or on premises

consumption, a sign shall be prominently posted at the place of sale

which states the product designation of the food followed immediately by

the words "contains imitation cheese" or "contains imitation cheese

food," whichever is appropriate. The letters on such sign shall be in

block letters at least three inches in height and on a contrasting

background which can be easily read by consumers under normal conditions

of purchase.

4. Whenever any product which contains imitation cheese or imitation

cheese food product is offered for sale on the menu of any service food

establishment, the product designation on such menu shall be immediately

followed by the words "contains imitation cheese" or "contains imitation

cheese food", whichever is appropriate, in letters of equal size and on

a contrasting background.

5. Whenever any imitation cheese or imitation cheese food product is

placed on the tables or otherwise made available for use by customers in

any service food establishment, the container of such product shall be

conspicuously labeled "imitation cheese", or "imitation cheese food

product".

6. The commissioner shall promulgate such rules and regulations as are

necessary and appropriate to carry out the provisions of this section,

including specific identification of imitation cheese and imitation

cheese food.

Manufacturers identification markings and grade brands for

cheese. 1. Every manufacturer of cheddar type cheese made in New York

state shall put a stencil, brand, stamp or label upon such cheese

indicating the variety of cheese as prescribed pursuant to rules and

regulations promulgated by the commissioner pursuant to section

forty-six-a; and no person shall use such markings upon any cheese which

has not been manufactured under sanitary conditions as set forth in

article four of this chapter and in accordance with the rules and

regulations of the commissioner. The commissioner shall procure and

issue on proper application therefor, and under such regulations as to

the custody and use thereof as he may prescribe, a uniform stencil,

brand, stamp or label bearing the words "cheddar cheese," "washed curd

cheese" or "colby cheese," and a different number assigned by the

commissioner for each separate factory to any manufacturer of cheese in

New York state licensed by the commissioner. Every such stencil, brand,

stamp or label shall be used upon the outside of the cheese and shall

not be used upon any other than cheddar, washed curd or colby cheese or

packages containing the same. It shall be unlawful for any person to use

a cheese identification stencil, brand, stamp or label supplied by the

commissioner as herein provided, to mark such cheese which does not

conform to standards established by the commissioner pursuant to section

forty-six-a. Every whole and uncut cheddar type cheese bearing the

numbered identification stencil, brand, stamp or label markings herein

provided shall be deemed to be in compliance with the provisions of

subdivision five, section two hundred one of the agriculture and markets

law.

2. Every manufacturer of New York state cheddar type cheese, or his

registered agent as provided herein, may put a state brand stamp or

stencil issued by the commissioner upon such cheese manufactured in New

York state which meets the requirements of the highest grade for New

York state cheese. Such requirements shall be established by the

commissioner. Such state brand stamp or stencil issued by the

commissioner shall have markings at least one-half inch high, reading on

a first line "grade" and on a second line "New York state brand,"

enclosed within a miniature map of New York state and with the letters

"NYS" superimposed thereon. Every such state brand stamp or stencil

shall bear a different number for each manufacturer.

3. Every manufacturer of New York state cheddar type cheese, or his

registered agent as provided herein, may put a New York standard stamp

or stencil upon such cheese manufactured in New York state which meets

the requirements of the second highest grade for cheese. Such

requirements shall be established by the commissioner. Such New York

standard stamp or stencil shall be issued by the commissioner and shall

have markings at least one-half inch high, reading on a first line

"grade" and on a second line "New York standard," and shall bear a

different number for each manufacturer, but no map of New York state

shall be a part of this stamp or stencil.

4. No person shall by means of any stencil, brand, stamp, label or

other device use identification or grade markings which are similar to

those provided pursuant to subdivisions one, two, and three of this

section, unless authorized by the commissioner to do so.

5. The commissioner shall keep a record in which shall be registered

the name and location of each manufacturer to whom such identification

markings are issued as provided in subdivision one of this section, and

the name and location of each manufacturer and his designated agent to

whom grade markings are issued as provided in subdivisions two and three

of this section. Whenever evidence is found or received by the

commissioner tending to show that the grade-designating stamps or

stencils, as provided in subdivisions two and three of this section,

have been used to mark cheese which does not meet the requirements of

grade for which it is marked, he may order the custodian of such grade

markings to immediately discontinue use thereof and return such stamps

or stencils to the commissioner; and it is further provided that the

commissioner may order the removal or obliteration of such grade

markings as provided herein from the cheese which does not meet the

grade represented and as established by the commissioner. The custodian

to whom such a grade marking device or devices has been issued, and the

use of which has been revoked, or who possesses or has possessed cheese

from which grade marks have been ordered obliterated, shall, upon

request, be granted a hearing before the commissioner or his designated

agent, and at such hearing, said custodian may present evidence to show

why use of such device or devices should be restored to him and

obliterated grade marks on cheese should be replaced. The commissioner

may promulgate rules and regulation pertaining to the use of the New

York state identifications and grade markings issued by him as provided

in this section.

Pasteurization of cheese. No person manufacturing cheese or

cheese curd or handling cheese or cheese curd as a wholesaler, assembler

or broker in the state of New York and no person obtaining cheese from

outside the state shall release any cheese or cheese curd to the retail

trade or to consumers unless such cheese or cheese curd has been

pasteurized or has been made from whole milk, skim milk or cream which

has been pasteurized in accordance with rules and regulations

promulgated by the commissioner after inquiry and public hearing; except

that cheese cured for sixty days or longer after manufacture may be made

from unpasteurized milk.

Use of false brand prohibited. No person shall offer, sell or

expose for sale, in any package, butter or cheese which is falsely

branded or labeled.

County trade marks. At a regular or special meeting of a county

dairymen's association in any county of the state there may be adopted a

county trade mark, by a majority of the members present and voting, to

be used as a trade mark by a person manufacturing pure unadulterated

butter or full-cream cheese in such county. The secretary of the

association shall forthwith send to the commissioner a copy of such

trade mark, which copy he shall place on file in his office, noting

thereupon the day and hour he received the same. But one county trade

mark for butter and for cheese shall be placed on file for the same

county. No association shall adopt any trade mark of any county already

on file, or use that of any other county in the formation of a trade

mark.

Branded cans, jars, bottles, cases, boxes or barrels not to be

sold, remarked or used without consent of owner. No person shall

hereafter without the consent of the owner use, sell, dispose of, buy or

traffic in any milk can, jar or bottle, or any cream can, jar or bottle,

or any milk bottle case, or any meat case, box or barrel having the name

or initials of the owner stamped, marked or fastened on such can, jar,

bottle, box, barrel or case, or wilfully mar, erase or change by

remarking or otherwise said name or initials of any such owner, so

stamped, marked or fastened upon said can, jar, bottle, box, barrel or

case. Nor shall any person without the consent of the owner place in any

such can, jar or bottle, any substance or product other than milk or

cream.

Registration of mark; defacing mark; seizure. Any person owning

milk cans, jars, bottles, bottle cases or carton cases upon which he has

placed or desires to place any designating mark may register the said

designating mark with the commissioner, who shall keep a record thereof,

and he may also register with the commissioner, from time to time, the

number of such cans, jars, bottles, bottle cases or carton cases, which

he has or is to have, which do or may bear such designating mark. Such

cans, jars, bottles, bottle cases or carton cases may, after such

registration be numbered consecutively and such consecutive numbers may

be registered in the department, as above provided, with the designating

mark. If any such can, jar, bottle, bottle case or carton case, bearing

such designating mark, shall be found in possession of, and being used

by any person other than the one so registering the same it shall be

presumptive evidence of a violation of the provisions of this article,

unless such person has the consent of the owner thereof to so have and

use the same.

No person, except the original owner thereof, or a person duly

authorized by him so to do, shall remove, deface or erase any of the

marks upon the cans, jars, bottles, bottle cases or carton cases herein

provided for.

When the commissioner, or any person duly authorized by him, shall

find any such cans, jars, bottles, bottle cases or carton cases, bearing

such registered designating mark, in the possession of or being used by

another person than the owner thereof, he may seize the same, and if

evidence is produced in three days showing that such person had been

given permission to have or use such cans, jars, bottles, bottle cases

or carton cases, then they shall be delivered by the commissioner, or

his agents, to the person from whom taken, otherwise the commissioner

shall notify the owner of such cans, jars, bottles, bottle cases or

carton cases, that he has the same and upon application deliver the same

to such owner.

Declaration of policy. 1. It is hereby declared that the dairy

industry is a paramount industry of the state and the production,

processing, packaging, distribution and sale of frozen desserts is an

important segment of the dairy industry and is of vast economic

importance to the state and of vital importance to the consuming public

of the state, and which should be encouraged and promoted in the public

interest. It is further declared to be in the interest of the dairy

industry and of the consuming public that there be uniformity of

standards for frozen desserts as between the various states and the

federal government to the end that there may be free movement of frozen

desserts between the states and to the end that the inefficiency,

needless expense, and confusion caused by differences in products sold

under the same name, and differences in labeling of identical products

may be eliminated. Regulations pertaining to sanitary requirements,

production, processing, all labeling requirements, and distribution of

frozen desserts products which are uniform and uniformily enforced are

essential for the protection of consumers and the economic well being of

the dairy industry. It is further declared that advances in food

technology have resulted in the development of products similar to

frozen desserts, including such products having a lower butterfat

content and products made with oils or fats other than butterfat and

with solids not fat from sources other than dairy products and that such

products are recognized as wholesome and nutritious articles of food;

that such products are similar in appearance, odor or taste and are

difficult to differentiate from frozen desserts made with dairy

products. It is further declared to be the purpose of this article to

promote honesty and fair dealing in the interest of consumers, to insure

fair competition as between the manufacturers and distributors of the

different products and to prevent confusion and deception in the sale of

all such products by establishing definitions and standards of identity

for such products, to eliminate needless duplication of inspection and

conflicting and diverse requirements by various agencies, and by

providing for rules and regulations which will effect their orderly

marketing and insure uniform sanitary standards and enforcement.

2. For the purpose of this article and for any rules and regulations

promulgated pursuant thereto, the term "frozen desserts" shall be deemed

to include ice cream, frozen custard, French ice cream, French custard

ice cream, artificially sweetened ice cream, ice milk, freezer made

shakes, fruit sherbert, water ice, quiescently frozen confection,

quiescently frozen dairy confection, manufactured desserts mix, frozen

confection, mellorine frozen dessert as all such products are commonly

known, together with any mix used in such frozen desserts, and any

products which are similar in appearance, odor or taste to such

products, or are prepared or frozen as frozen desserts are customarily

prepared or frozen, whether made with dairy products or non-dairy

products.

3. a. "Person" means and includes any individual, copartnership,

corporation, cooperative association, cooperative corporation, or

unincorporated association.

b. "Plant" means any single location or mobile manufacturing unit

which manufactures frozen desserts.

4. Rules and regulations. (a) The commissioner shall, after public

hearing, promulgate definitions and standards for frozen desserts

including those made with dairy products, those not made with dairy

products and those which are similar in appearance, odor or taste to

such products or are prepared or frozen as frozen desserts are

customarily prepared or frozen, together with rules and regulations for

the packaging and all labeling requirements for all such products, and

other conditions relating to the wholesale manufacture, processing,

packaging, distribution and sale at wholesale of all such products;

including, but not limited to, sanitization pertaining to manufacture,

processing, handling, distribution, buildings, grounds, equipment,

personnel and pasteurization or heat treatment of frozen desserts or

ingredients. No municipality or county may impose any regulation or

standard for frozen desserts different from those provided herein or by

regulations promulgated hereunder. No municipality or county may require

the inspection of frozen dessert plants beyond its borders and shall

accept the certification of the commissioner that such plants conform to

this act and the rules and regulations promulgated hereunder, unless

there is substantial reason to believe that a manufacturer of frozen

desserts, offered for sale in such county or municipality, is not in

substantial compliance with the requirements of this article or the

regulations promulgated pursuant thereto.

(b) Following any hearing to consider definitions and standards or

rules and regulations, pursuant to paragraph (a) of this subsection, the

commissioner shall issue a recommended decision and shall afford

interested parties an opportunity to file exceptions to such recommended

decision based upon the facts in the hearing record. After full

consideration has been given to such exceptions, a final decision shall

be made.

(c) No person shall manufacture, distribute or sell in this state a

frozen dessert for which a definition and standard has not been

promulgated pursuant to this article.

(d) Any person who desires to manufacture, distribute or sell in this

state, any frozen dessert for which a definition and standard has not

been promulgated by the commissioner pursuant to this section, shall

first make application to the commissioner for the promulgation of a

definition and standard for such proposed frozen dessert. Such

application shall include the essential details of such proposed

definition and standard. Upon the receipt of such an application, the

commissioner shall call a public hearing for the purpose of considering

such proposed definition and standard. In determining whether or not

such proposed definition and standard shall be promulgated, the

commissioner shall consider, among other things, the following:

1. Is the proposed product a frozen dessert as provided pursuant to

the provisions of subdivision two of this section?

2. Is the proposed frozen dessert substantially different from other

frozen desserts for which definitions and standards have already been

promulgated by the commissioner?

3. Is it in the public interest to promulgate such proposed definition

and standard?

4. Will the promulgation of such proposed definition and standard be

advantageous to consumers and not result in a lowering of health

standards or promote fraud and deception?

Following the hearing to consider any such proposed definition and

standard, the commissioner shall issue a recommended decision as

provided pursuant to paragraph (b) of subdivision four of this section,

either adopting, modifying, or denying the proposed definition and

standard, giving interested parties an opportunity to file exceptions,

within thirty days, to such recommended decision based upon the facts in

the hearing record, and after full consideration has been given to any

such exceptions, a final decision shall be made.

Application for license. 1. Every wholesale manufacturer of

frozen desserts produced for sale, and every person who sells, offers or

exposes for sale, or has or possesses for sale other than exclusively at

retail, any frozen dessert, shall, not later than the first day of

February of every other year, file with the commissioner an application

for a license upon a form prescribed by the commissioner, which

application shall state such facts concerning the applicant's

circumstances and the nature of business to be conducted as in the

opinion of the commissioner are necessary for the administration of this

article. The license period shall be for twenty-four months, beginning

March first following.

2. The application of a manufacturer must show that the frozen

desserts to be manufactured by the applicant are to be composed of pure

and wholesome ingredients and are to be produced under sanitary

conditions. The application shall also show the location of each plant

at which frozen desserts are to be manufactured, and the name of the

brand or brands, if any, under which the same are to be sold.

3. This section shall not apply to any boarding house in respect to

frozen desserts manufactured by such boarding house and served to the

patrons thereof for consumption on the premises where manufactured, nor

to a person, other than a manufacturer, who sells, offers or exposes for

sale, or has on hand with intent to sell exclusively at retail, any

frozen dessert.

License fees. (1) Wholesale. The biennial license fee for

each plant which engages in the manufacture of frozen desserts for sale

at wholesale, shall be determined on the basis of the biennial volume of

frozen desserts manufactured as shown in the application of the

manufacturer in accordance with the following schedule:

Not to exceed 200,000 gallons $ 50.00

Over 200,000 but not over 400,000 gallons 100.00

Over 400,000 but not over 1,000,000 gallons 200.00

Over 1,000,000 gallons 300.00

In the event that an audit of the records of any wholesale

manufacturer of frozen desserts discloses a greater or lesser volume of

frozen desserts manufactured than was shown in such manufacturer's

application for license, the license fee paid by such manufacturer shall

be adjusted accordingly.

(2) Handlers. The biennial license fee for a person other than a

manufacturer who in the regular course of business sells, offers or

exposes for sale, or who has or possesses for sale, other than at

retail, any frozen dessert shall be twenty dollars.

(3) All fees as provided herein shall be tendered to the commissioner

with the application and upon issuance of the license shall be remitted

by the commissioner to the state treasury.

Issuance of License. No license shall be granted unless the

commissioner is satisfied that the applicant is qualified by character

and experience, and is equipped to conduct the proposed business

properly. Prior to the issuance of a license to manufacture frozen

desserts, to satisfy himself that the applicant is equipped to conduct

the proposed business properly, as required in this section, and at any

other time when, in his discretion, he shall deem such action necessary,

the commissioner may inspect the plant and equipment of the applicant.

The commissioner may enter into and effectuate reciprocal agreements

with other states, covering regulation and inspection of frozen dessert

plants, as will insure inhabitants of this state frozen desserts

substantially complying with the requirements herein enacted or

promulgated in rules and regulations hereunder and as part of such

agreements may approve or accept inspections and regulation of other

states covering frozen desserts plants. The commissioner may inspect a

plant beyond the boundary of the state, and when he does, the applicant

shall, prior to such inspection, pay by certified check, bank check,

domestic or international money order in funds of the United States, in

addition to the license fee set forth in section seventy-one-c of this

article, fees for inspection of the plant by the department. Such fees

shall include expenses for all time during which an employee of the

department spends traveling to and from and inspecting the plant. In

addition, the applicant shall pay all necessary and reasonable expenses

incurred in making such inspection, including, but not limited to,

expenses for traveling, lodging and meals and the inspector's salary,

including fringe benefits, and overtime if applicable. The commissioner,

if satisfied with the qualifications of the applicant as stated in this

section and if satisfied that the equipment, the vehicles used for

transporting frozen desserts and the premises named in the application

and used by the applicant for the manufacture, storage or sale of frozen

desserts are maintained in accordance with the standards of sanitation

prescribed in the rules and regulations promulgated under the authority

of this article, shall issue a license for the handling of frozen

desserts. No license shall be issued if any statement in the application

is false or misleading, or if the brand name or any label or

advertisement of the frozen dessert involved in the application gives a

false indication of origin, character, composition or place of

manufacture, or is otherwise false or misleading in any particular.

Revocation or suspension of license. Any license may be

revoked by the commissioner, after notice to the licensee by mail or

otherwise and opportunity to be heard, when and if it appears that any

statement upon which it was issued was false or misleading, or that any

frozen dessert manufactured, sold, offered or exposed for sale, or held

for sale, by the licensee is adulterated or misbranded, or is

manufactured in a plant, or transported in a vehicle, or stored in

equipment not maintained in accordance with the standards of sanitation

prescribed in the rules and regulations promulgated under the authority

of this article, or that the brand name of any label or advertising of

any frozen dessert manufactured, sold, offered or exposed for sale, or

held for sale, by the licensee gives a false indication of origin,

character, composition or place of manufacture, or is otherwise false or

misleading in any particular.

A license may also, after such notice and hearing, be suspended for

any of the foregoing reasons until the licensee complies with the

conditions prescribed by the commissioner for its reinstatement.

Where the commissioner has denied, revoked or suspended a license, an

order to that effect may be issued and service thereof may be made

either by personal delivery of a copy, or by mailing a copy in a sealed

envelope with postage prepaid to such applicant or licensee, or, in case

such applicant or licensee is a corporation, then to any officer or

agent of such corporation upon whom a summons may be served in

accordance with the provisions of the civil practice law and rules.

Review. The action of the commissioner in refusing to grant a

license, or in revoking or suspending a license, shall be subject to

review by a proceeding under article seventy-eight of the civil practice

law and rules, but the decision of the commissioner shall be final

unless within thirty days from the date of the order embodying such

action such proceeding to review has been instituted.

Prohibitions. It shall be unlawful for any person to buy or

sell any frozen desserts unless all the parties to such purchase or sale

who are required to be licensed under the provisions of this article be

duly licensed in accordance therewith.

The foregoing prohibition shall not apply

(1) To any frozen desserts manufactured and sold by a church or a

religious organization solely for the benefit of such church or

religious organization.

(2) To any frozen dessert manufactured outside of the state of New

York and shipped into and/or through this state to be sold without this

state while such frozen dessert constitutes the original unbroken

package delivered by the shipper to the carrier at the initial point of

interstate shipment.

No person shall sell, offer for sale or advertise for sale any frozen

dessert, if the brand name of the frozen dessert or the label upon it or

the advertising accompanying it shall give a false indication of origin,

character, composition, or place of manufacture, or is otherwise false

or misleading in any particular.

Vehicles used for transportation of frozen desserts. All

vehicles used for the transportation and distribution of frozen desserts

shall be constructed of impervious material capable of being cleaned,

shall be kept clean and sanitary, shall be so operated as to protect

their contents from contamination, and shall have prominently displayed

thereon the name and address of the licensee who sells, offers or

exposes for sale, or holds with intent to sell, such frozen desserts.

Illegal use of equipment. (1) No person shall sell or offer

or expose for sale frozen desserts in any container which is falsely

labeled as to the name of the manufacturer or place of manufacture, or

in any other respect.

(2) No person shall misrepresent in any manner the name of the

manufacturer or the place of manufacture of frozen desserts.

(3) No person shall use or cause or permit to be used, for the purpose

of preserving or holding frozen desserts, any cabinet, can, container or

other equipment owned by any other person without the written consent of

such owner.

(4) No person shall place any frozen desserts or any other products of

one manufacturer in the cabinet, cabinet compartment, can, container or

other equipment belonging to another manufacturer without the written

consent of the owner of such cabinet, cabinet compartment, can,

container or other equipment.

(5) No person, other than the owner, shall remove, erase, obliterate,

cover or conceal the owner's name or any distinguishing mark or device

which may appear or be placed on any cabinet, can, container or other

equipment.

Samples of frozen desserts for analysis. A representative

sample of frozen deserts for analysis shall consist of a quantity to be

determined by the commissioner.

Violations; remedies. The commissioner may institute such

action at law or in equity as may appear necessary to enforce compliance

with any provisions of this article or of the rules and regulations

promulgated thereunder, and, in addition to any other remedy under

article three of this chapter or otherwise, may apply for relief by

injunction if necessary to protect the public interest without being

compelled to allege or prove that an adequate remedy at law does not

exist. Such application may be made to the supreme court in any district

or county as provided in the civil practice law and rules, or to the

supreme court in the third judicial district.

Milk sanitation; powers, functions and duties of commissioner.

1. The commissioner is charged with the duty of protecting and promoting

the health and welfare of the people of this state by inspecting,

regulating, and supervising the sanitary quality of milk and cream

distributed, consumed or sold within this state, whether produced within

or without the state.

2. (a) Notwithstanding the provisions of any other general, special or

local law, the commissioner may, in order to secure uniformity of

inspection, regulation and supervision of the sanitary quality of milk

and milk products, as defined under the authority of section forty-six-a

of this chapter, reverse, modify or annul in whole or in part any rule,

regulation, direction, order or ordinance heretofore adopted by the

board of health of any local health district or any other body

exercising the powers and duties of a board of health therein, or any

order, direction or requirement made pursuant thereto, pertaining to or

affecting the production, processing, handling, storage, transportation,

sale, resale or distribution of milk and cream, or any operations or

procedures incident thereto.

(b) The order of the commissioner reversing, modifying or annulling

any such rule, regulation, direction, order, ordinance or requirement,

shall state the date on which it takes effect and a copy thereof, duly

signed by the commissioner shall be filed as a public record in the

department.

(c) Nothing contained in this article shall affect any existing rule,

regulation, direction, order, ordinance or requirement relating to the

dating of milk in cities.

Milk sanitation; appointment of specialists; appliances. The

commissioner may, within the appropriations made therefor:

(a) appoint such milk control specialists, bacteriologists, and such

other employees and assistants as may be required, and

(b) secure such equipment and appliances as may be necessary to carry

out the purposes of this article.

Milk and milk products; permit required. 1. (a) No person,

firm, association, partnership or corporation shall engage in or carry

on the business of shipping, transporting or importing into this state

from any other state, territory or foreign country any milk or milk

products, as defined in subdivision two of section seventy-one-l of this

article, for sale, resale or distribution to consumers unless the milk

and milk products to be shipped, transported, or imported into this

state meet all of the sanitary requirements and standards for such milk

and milk products produced or manufactured within this state.

(b) Nothing in this section shall be held or construed to apply to

evaporated or condensed milk manufactured, sold or exposed for sale or

exchange in hermetically sealed cans.

(c) When the commissioner inspects a plant beyond the boundary of the

state, the commissioner may require such plant to reimburse the

department for all necessary and reasonable expenses incurred in making

such inspections. The commissioner is authorized to effectuate and enter

into such reciprocal agreements with governmental units of other states,

commonwealths or jurisdictions as will insure the inhabitants of this

state milk and milk products complying with all the sanitary

requirements and product standards and regulations now in force or

hereafter promulgated by the department for the production and handling

of milk or milk products within the state, through reciprocal inspection

agreements, and in aid of such agreements, may approve or accept

inspections conducted by other commonwealths, states and jurisdictions

with respect to milk and milk products.

2. No person, firm, association, partnership or corporation shall

engage in the production, processing or manufacture of milk and milk

products without a permit issued by the commissioner pursuant to this

subdivision. The commissioner may decline to grant or renew or may

revoke a permit, after due notice and opportunity for a hearing, when he

or she is satisfied that the applicant or permit holder is not capable

of complying or has not complied with the requirements relating to

production, processing or manufacture of milk and milk products set

forth in this chapter or the rules and regulations promulgated pursuant

thereto. No fee shall be charged for a permit and it shall remain in

effect until revoked or until suspended by the commissioner. With

respect to a milk producer, the permit required by this section shall

consist of a satisfactory sanitary inspection report of a department

inspector or a certified milk industry inspector. An emergency

suspension of a milk producer's permit pursuant to section four hundred

one of the state administrative procedure act may be ordered by a

department employee authorized by the commissioner. Such an order may be

based upon facts as reported by a certified milk industry inspector.

3. The commissioner may, after public hearing, promulgate such rules

and regulations as he or she deems necessary to give full force and

effect to the purpose and intent of this article and to conform such

rules and regulations to the provisions of the Grade A Pasteurized Milk

Ordinance, published by the food and drug administration of the United

States department of health and human services, including those

provisions concerning the disposition of milk as a sanction for

violation of such ordinance.

Violations. Any person, firm, association or corporation

violating any of the provisions of section seventy-one-n of this chapter

shall be guilty of a misdemeanor.

Definitions. As used in this article:

1. The term "commissioner" means the commissioner of agriculture and

markets of the state of New York.

2. The term "dairy product" means all milk and milk products defined

by the definitions and standards of identity promulgated pursuant to

section forty-six-a of this chapter and such other food products derived

from milk as the commissioner shall designate by regulation.

3. The term "foreign dairy product" means any dairy product produced,

processed or manufactured outside the United States.

4. The term "packaged foreign dairy product" means a foreign dairy

product which is enclosed in a container or wrapper (including a

shipping container or wrapping used for the transportation of such

product in bulk or quantity to manufacturers, packers, processors, or to

wholesale or retail distributors) or which although not so enclosed has

written, printed, or graphic matter pertaining to such foreign dairy

product affixed or attached.

Labeling requirements. 1. The commissioner shall, by

regulation, require that packaged foreign dairy products be labeled in

such a manner that, at each stage of distribution within this state,

such packaged foreign dairy product will be readily identifiable as

being imported. The commissioner may, to the extent he deems

appropriate, establish different labeling requirements for packaged

foreign dairy products:

a. of different types or classes;

b. with different types of packaging;

c. in different stages of distribution; and

d. intended for delivery to different types or classes of users.

2. If the commissioner determines that, at any stage of distribution:

a. the nature of the container or wrapping of a packaged foreign dairy

product makes labeling impractical or inappropriate; and

b. such packaged foreign dairy product will, by means other than

labeling, be identifiable by any person, other than a common carrier, to

whom such packaged foreign dairy product is displayed or delivered as

being imported;

he may exempt such packaged foreign dairy product, at such stage of

distribution, from the labeling requirements established pursuant to

subdivision one.

Prohibitions. No person shall distribute, or cause to be

distributed commercially any packaged foreign dairy product which he

knows or has reason to know is a foreign dairy product, unless such

product is labeled in accordance with the regulations promulgated

pursuant to section seventy-one-m.

Violations. 1. The commissioner may institute such action at

law or in equity as may appear necessary to enforce compliance with any

provisions of this article and any rules and regulations promulgated by

the commissioner to carry out the provisions of this article and in

addition may apply for relief by injunction if necessary to protect the

public interest without being compelled to allege or prove that an

adequate remedy at law does not exist. Such application may be made to

the supreme court in any district or county as provided in the civil

practice law and rules, or to the supreme court in the third judicial

district.

2. Whenever the commissioner or his duly authorized representative

shall find distributed, offered or exposed for sale within this state,

any dairy product produced, processed or manufactured outside the United

States which he has probable cause to believe is not labeled in

accordance with this article or the rules and regulations promulgated

pursuant thereto, or which is otherwise misbranded or adulterated, he

may seize or quarantine such product. Following such seizure or

quarantine the commissioner shall hold a hearing in accordance with the

provisions of section two hundred two-b of this chapter. The

determination of the commissioner following such hearing shall be

subject to judicial review in the manner and within the time limits set

forth therein.

Definitions. As used in this article: 1. "Perishable foods"

means any food that may spoil or otherwise become unfit for human

consumption because of its nature, type or physical condition.

Perishable food includes, but is not limited to, fresh or processed

meats, poultry, seafood, dairy products, bakery products, eggs in the

shell, fresh fruits or vegetables and foods that have been packaged,

refrigerated or frozen, or otherwise require refrigeration to remain

nonperishable. This definition shall not include game or wild game.

2. "Canned foods" means any canned food that has been hermetically

sealed and commercially processed and prepared for human consumption,

including canned or preserved fruits, vegetables or other articles of

food. There is specifically excluded for purposes of this section canned

goods that are rusted, leaking, swollen or canned goods that are

defective or cannot be otherwise offered for sale to members of the

general public.

3. "Farm products" means any agricultural, dairy or horticultural

product or any product designed or intended for human consumption or

prepared principally from an agricultural, dairy or horticultural

product.

4. "Charitable or nonprofit organization" means any organization which

is exempt from federal or state income taxation, except that the term

does not include organizations which sell or offer to sell such donated

items of food.

5. "Organized gleaning" means the harvest of an agricultural crop that

has been donated by an owner, lessee, or occupant of premises or

occupant of a farm by persons who are sponsored by a charitable

not-for-profit organization.

6. "Game or wild game" means any deer or big game, or portions

thereof, as defined in section 11-0103 of the environmental conservation

law, taken by lawful hunting.

7. "Public food service establishment" means any building, vehicle,

place or structure, or any room or division in a building, vehicle,

place or structure where food is prepared, served or sold for immediate

consumption on or in the vicinity of the premises; called for or taken

out by customers; or prepared prior to being delivered to another

location for consumption.

Liability for canned, perishable food or farm products

distributed free of charge. 1. Notwithstanding any other provision of

law, a good-faith donor of any canned or perishable food, farm product,

game or wild game, apparently fit for human consumption, to a bona fide

charitable or nonprofit organization, for free distribution, shall not

be subject to criminal penalty or civil damages arising from the

condition of the food, if the said donor reasonably inspects the food at

the time of donation and finds the food apparently fit for human

consumption and unless the donor has actual or constructive knowledge

that the food is adulterated, tainted, contaminated or harmful to the

health or well-being of the person consuming said food. Such good-faith

donor shall include, but not be limited to, public food service

establishments.

2. This section includes the good faith donation of canned or

perishable food or farm products not readily marketable due to

appearance, freshness, grade, surplus or other considerations, but shall

not be deemed or construed to restrict the authority of any lawful

agency to otherwise regulate or ban the use of such food for human

consumption.

3. A not-for-profit charitable organization shall provide liability

insurance to persons engaged in gleaning activities organized or

sponsored by such charitable organization.

Control and suppression of disease. 1. The commissioner may

cause investigations to be made as to the best method for the control,

suppression or eradication of infectious or communicable disease

affecting domestic animals or carried by domestic animals and affecting

humans. Whenever any infectious or communicable disease affecting

domestic animals or carried by domestic animals and affecting humans

shall exist or shall have recently existed outside this state, the

commissioner shall take measures to prevent such disease from being

brought into the state. Whenever any such disease shall exist or be

brought into or break out in this state, the commissioner shall take

measures promptly to suppress the same and to prevent such disease from

spreading.

2. He may issue and publish a notice stating that a specified

infectious or communicable disease exists, may exist or has recently

existed in the state, or in any designated county or other geographical

district thereof, and warning all persons to seclude, in the premises

where they maybe at the time, all animals within this state, or within

such county or district, or an adjoining county or district, that are of

a kind susceptible to contract such disease; and ordering all persons to

take such precautions against the spreading of the disease as the nature

thereof may, in his judgment, render necessary or expedient and which he

may specify in such notice. Such notice shall be published in such

manner as the commissioner may designate. The commissioner may cause

such notice to be posted on buildings where animals are harbored which

are believed to be diseased or exposed to disease, or on poles, gates or

fences within an area in which diseased or exposed animals are harbored

or kept. No person shall tear down, mutilate, deface or destroy any such

notice or order issued by the commissioner and posted, as provided

herein, during the pendency of such notice or order. The commissioner

may alter or modify, from time to time, as he may deem expedient, the

terms of any notice or order issued or made pursuant to this article and

may at any time cancel or withdraw the same.

3. The commissioner may adopt and enforce rules and regulations for

the control, suppression or eradication of communicable diseases in

domestic animals or for the purpose of preventing the spread of

infection and contagion among such animals, or from such animals to

humans, and may, in behalf of the state, accept, in whole or in part,

rules and regulations adopted by the secretary of agriculture of the

United States under any act of congress providing for the control,

suppression or eradication of communicable diseases in domestic animals.

The commissioner may cooperate with the authorities of the United States

government within this state in the carrying out of such rules and

regulations and the enforcement of the provisions of any such act so

passed which are not in conflict with the statutes of this state.

Whenever the commissioner finds that an emergency situation exists in

relation to the prevention or control of communicable disease among

domestic animals, or from such animals to humans, the commissioner may

by regulation require that all domestic animals of any designated

species be immunized against any designated disease. Such regulations

may specify the immunizing agent to be used and the method of

immunization. The regulations may prescribe that such immunization shall

be performed by the agents of the department or require that all owners

or harborers of the designated species shall cause such immunization to

be performed by a licensed veterinarian.

4. Whenever a program for the control, suppression or eradication of a

disease of domestic animals has been adopted and instituted by the

commissioner pursuant to this article, the owner or harborer of each

domestic animal of the species involved shall, on or at the premises

where such animal is kept, present and restrain such animal for tests,

examination, immunization, or identification at such times as the

commissioner on not less than forty-eight hours notice shall direct.

Feeding of garbage, offal or carcasses to cattle, swine or

poultry prohibited. 1. Garbage fed to cattle, swine or poultry

contributes to the spread of vesicular exanthema, cholera, erysipelas,

foot and mouth disease, trichinosis and other infectious animal

diseases. Meat from animals so afflicted, when consumed by human beings,

is a primary source of trichinosis and other human sickness. It is

therefore declared to be the public policy of this state to prohibit the

feeding of garbage, offal or carcasses to cattle, swine or poultry to

assist in the eradication of animal diseases and for the protection of

the public health and public welfare.

2. Definitions. When used in this section:

a. "Garbage" means putrescible animal and poultry wastes from the

handling, processing, preparation, cooking and consumption of foods.

b. "Offal" means the waste parts of butchered animals or poultry.

c. "Carcasses" means the dead bodies of animals or poultry.

d. "Person" means any individual, firm, partnership, public or private

corporation, public or private institution, public authority, municipal

corporation and the state.

e. Notwithstanding anything in the preceding paragraphs of this

subdivision to the contrary, animal feeds which have been heat rendered

by a rendering plant at a temperature sufficient to make the product

commercially sterile shall not be considered garbage, offal or carcasses

within the meaning of this section.

3. a. It shall be unlawful for any person to feed garbage, offal, or

carcasses, whether cooked or uncooked, to cattle, swine or poultry.

b. This section shall not apply to any individual who feeds garbage

from his own household only, to cattle, swine or poultry on his own

premises.

c. Violation of this section shall constitute a class A misdemeanor.

Report of disease. Every person shall immediately report to the

commissioner the existence among animals of any infectious or

communicable disease coming to his knowledge. Every report shall be in

writing and shall include a description of the diseased animal or

animals, the location thereof, the name of the disease suspected, and,

if known, the name and address of the owner or person in charge of such

animal or animals.

Unlawful sale of tuberculous cattle. A person who knowingly

sells, except under the supervision of the commissioner of agriculture

and markets, any bovine animal in which tuberculosis shall have been

indicated as a result of the tuberculin test, is guilty of a

misdemeanor.

The New York state veterinary diagnostic laboratory. 1. The

commissioner is authorized to establish and maintain, by contract or

otherwise, a New York state veterinary diagnostic laboratory and to

contract for other diagnostic services, as he or she may deem necessary

or beneficial, to improve the health of food and fiber producing

animals, companion animals, sport and recreational animals, exotic

animals and wildlife.

2. The New York state veterinary diagnostic laboratory shall:

(a) evaluate domestic and wild animal populations for evidence of

disease agents that may cause human disease;

(b) maintain capability to respond to disease outbreaks in animals;

(c) establish diagnostic testing capabilities to establish herd health

status and evaluation of disease programs;

(d) support disease surveillance and monitoring programs of domestic,

zoo and wild animals;

(e) support veterinarians by analyzing and interpreting samples

obtained from clinical cases; and

(f) evaluate, adjust and improve New York's ability to recognize

diseases that impact animal populations.

3. "The New York state veterinary diagnostic laboratory advisory

board" is hereby created. Such board shall be composed of ten members,

as follows:

(a) the commissioner or his or her designee;

(b) the commissioner of environmental conservation or his or her

designee;

(c) the commissioner of health or his or her designee;

(d) the dean of the New York state college of agriculture and life

sciences or his or her designee;

(e) the director of the division of animal industry of the department;

(f) the director of the New York state veterinary diagnostic

laboratory, who shall serve as a non-voting member;

(g) one member to be appointed by the governor, upon recommendation by

the commissioner;

(h) one member to be appointed by the governor, upon recommendation by

the commissioner, from nominations received from a statewide

organization representing dairy producers;

(i) one member to be appointed by the governor, upon recommendation by

the commissioner, from nominations received from a statewide

organization representing veterinarians licensed in this state; and

(j) one member to be appointed by the governor, upon recommendation by

the commissioner, from nominations received from a statewide

organization representing agricultural interests.

4. The appointed members of the veterinary diagnostic laboratory

advisory board shall be appointed for a term of three years and may

serve until their successors are chosen provided, however, that of the

members first appointed, two shall be appointed for a term of one year,

one shall be appointed for a term of two years and one shall be

appointed for a term of three years. Members shall serve without salary,

but shall be entitled to actual expenses incurred while engaged in

performing the duties herein authorized.

5. The advisory board, which shall be chaired by the commissioner,

shall:

(a) evaluate and prioritize the veterinary diagnostic laboratory needs

of industry, government and consumer entities;

(b) provide advice and recommendations to the dean of the New York

state college of veterinary medicine for strategic direction of

diagnostic laboratory services;

(c) make recommendations to the dean regarding appointment of the

director of the laboratory;

(d) assess the feasibility of the consolidation, expansion and

modernization of the current physical facilities of the laboratory;

(e) provide advice and recommendations to the director of the

diagnostic laboratory regarding industry needs and the effectiveness of

veterinary diagnostic laboratory services; and

(f) provide advice and recommendations to the commissioner, the New

York state veterinarian, and the director of the diagnostic laboratory

regarding animal health programs administered by the department, to

include but not be limited to the New York state cattle health assurance

program and the egg quality assurance program.

6. The director of the New York state veterinary diagnostic laboratory

shall be appointed by the dean of the college of veterinary medicine,

after consultation with the advisory board. The dean shall provide

direction and guidance to the director to ensure that the resources of

the college of veterinary medicine are integrated with those of the

laboratory to meet current and anticipated industry, state and consumer

needs for diagnostic services.

Regulations relating to importation. The following regulations

shall apply to the importation of domestic or feral animals:

1. No person shall knowingly bring into this state any domestic or

feral animal which has an infectious or communicable disease, except in

the case of pure bred registered bovine animals which have been removed

from this state and have reacted to the tuberculin or other recognized

test subsequent to such removal, may be returned to this state upon

written permission from the commissioner subject to such rules as he may

prescribe in relation thereto.

2. Any person bringing into this state domestic or feral animals for

any purpose other than immediate slaughter without taking precaution to

ascertain whether such animals have an infectious or communicable

disease shall be presumed to have brought them in knowingly in violation

of this section, if they are found to have such disease.

3. Animals received from outside the state under the supervision of

the United States department of agriculture or the department of

agriculture and markets of the state of New York, or for which a permit

or certificate shall have been issued by either of such departments,

shall be deemed to have been handled with due precaution.

4. Any person importing or bringing into this state meat cattle for

dairy or breeding purposes shall report immediately upon bringing such

cattle into the state to the department, in writing, stating the number

of cattle thus brought in, the places where they were procured, the

lines over which they were brought, their destination within the state

and when they arrive thereat; and if there be filed with the department

at the time of filing such report or within ten days thereafter, a

certificate by a duly authorized veterinary practitioner approved by the

authorities of the state in which he resides or by an authorized

veterinary inspector of the United States bureau of animal industry to

the effect that he has duly examined such animals and that they are free

from any infectious or communicable disease, the commissioner may issue

a permit to such person to remove such cattle immediately. Otherwise

such person shall detain such animals at the point of destination for at

least twenty days for inspection or examination by the commissioner or

his duly authorized agent. The provisions of this subdivision relating

to advance reports to the department shall not apply to cattle imported

into this state at a point where there is federal inspection.

5. Persons bringing into this state or receiving domestic or feral

animals from without the state shall give such other information to the

department as it may from time to time request relating to such animals.

6. The commissioner may order all or any animals coming into the state

to be detained at any place or places for inspection and examination,

and if any of them after due examintion be found affected with any

infectious or communicable disease, such animals shall be condemned and

slaughtered or held in strict quarantine.

7. Each animal brought into the state in violation of any of the

provisions of this article shall constitute a separate and distinct

violation.

8. Nothing contained in this section shall be construed to prevent or

make unlawful the transportation of domestic or feral animals through

this state on railroads or boats.

9. The commissioner is hereby authorized, after public hearing, to

adopt and promulgate rules and regulations to implement and give full

effect to the provisions of this section, including rules and

regulations requiring a permit for the importation of domestic or feral

animals into the state.

10. For the purposes of this section, a feral animal shall mean an

undomesticated or wild animal.

Sanitary regulations. The commissioner may adopt and enforce

rules regulating the sanitation and physical requirements of stables,

livestock auction buildings or other buildings used for the housing of

domestic animals for the purpose of preventing the spread of infection

and contagion among such animals and may provide for the inspection and

examination of such stables and buildings. The commissioner may adopt

and enforce rules concerning the equipment for and the method of the

sanitary production of milk and may provide for the examination and

scoring of dairies in accordance with such rules. He may also prescribe

such rules as may be necessary for disinfecting and cleaning premises,

buildings, railway cars, boats and other objects, from or by means of

which infection or contagion of animals may be spread or conveyed.

Vehicles used for the transportation of livestock shall be cleaned and

disinfected at least weekly, or as otherwise directed by the

commissioner, with a disinfectant approved by the commissioner.

Vehicles used by a farmer in transporting his own livestock need not be

cleaned and disinfected as prescribed by the preceding sentence unless

directed by the commissioner.

Quarantine on animals or premises. 1. The commissioner, any

department employed veterinarian authorized by the commissioner, any

veterinarian in the employ of the United States department of

agriculture who is working in this state in connection with disease

control programs cooperatively conducted by the United States department

of agriculture and the department, or, when acting under the direction

of any department employed veterinarian authorized by the commissioner

to provide such direction, any accredited veterinarian and any licensed

veterinary technician in the employ of the department may order any

animal to be put in quarantine if such animal (a) is affected with

communicable disease, (b) has been exposed to a communicable disease,

(c) is believed to be suffering from or exposed to a communicable

disease, or (d) is suspected of having biological or chemical residues

in its tissues which would cause the carcass or carcasses of such

animal, if slaughtered, to be adulterated within the meaning of this

chapter, and may order any premises or farm where such disease or

condition exists or shall have recently existed to be put in quarantine

so that no domestic animal shall be removed from or brought to the

premises quarantined during the time of quarantine. The commissioner

shall prescribe such regulations affecting animals, persons or property

as he may deem necessary or expedient to prevent the dissemination of

the disease or condition from the premises so quarantined.

2. Any employee of the department so authorized by the commissioner

may impose pursuant to subdivision one hereof a quarantine (a) upon

cattle, swine or poultry whenever there is a reasonable cause to believe

that such animals have been fed garbage, offal or carcasses in violation

of section seventy-two-a of this chapter and (b) upon any horse required

to have been tested in accordance with section ninety-five-c of this

chapter if the custodian of such animal does not produce for examination

a negative test certificate.

3. Whenever the owner of any bovine animal refuses or neglects to have

any such animal tuberculin tested or whenever the owner of any domestic

animal of a species for which a disease control program has been adopted

and instituted by the commissioner pursuant to this article refuses or

neglects to subject such animal to such tests or examinations as may

have been established under such disease control program, the

commissioner may order the premises or farm on which such animal is

harbored to be put in quarantine so that no animal of the same species

shall be removed from or brought to the premises quarantined, and so

that no product of such animals on the premises so quarantined shall be

removed from the said premises. Nothing provided in this section shall

prevent the addition of new animals to a herd under quarantine or the

removal for immediate slaughter of any animals from the premises or herd

quarantined if such addition or removal is by written permission of the

commissioner and pursuant to rules and regulations adopted by him.

Examination by veterinarian prerequisite to destruction of

animal. No animal shall be destroyed by the commissioner or by his

order unless first examined by a veterinarian in the employ of the

department, or whose work is approved by the commissioner, nor until

such veterinarian renders a certificate to the commissioner, to the

effect that he has made such examination, that, in his judgment, such

animal is infected with a specified infectious or communicable disease,

or that its destruction is necessary in order to prevent or suppress, or

to aid in preventing or suppressing such disease.

Examination of domestic animals. 1. The commissioner shall

cause a physical examination and a tuberculin test to be made by

competent and authorized veterinarians of all bovine animals,

irrespective of age or sex, and cause all such bovine animals to be

subjected to periodic retests when deemed necessary by the commissioner.

The commissioner may also cause a physical examination and a tuberculin

test to be made by competent and authorized veterinarians of any

domestic animal or herds of domestic animals, irrespective of age or

sex, when deemed necessary in his or her judgment to prevent or suppress

disease. If, from such examination or test, any animal be deemed by the

commissioner to be infected with tuberculosis or any other communicable

disease or its condition be such as to render it undesirable for the

production of milk or meat, or a menace to the health of other animals

or persons, such animal shall be immediately removed from the herd,

slaughtered or otherwise disposed of as the commissioner may prescribe.

2. No person shall possess, maintain, transport, or otherwise handle

farmed deer except under conditions by which such animals are

biologically segregated from bovine animals in a manner prescribed by

the commissioner, provided however that such separation shall not be

required with respect to any farmed deer maintained under circumstances

where contact with bovine animals would not pose a threat to the state's

cattle population as determined by the commissioner pursuant to

regulation. For purposes of this subdivision: (a) "farmed deer" shall

mean members of family Cervidae which are raised or bred in confinement;

and (b) "bovine animals" shall mean cattle and bison. This subdivision

shall take effect on the one hundred eightieth day after it shall have

become a law.

Examination at request of owner; segregation; grading of herds.

The owner of a herd of cattle kept for dairy or breeding purposes within

the state may apply to the commissioner for examination of his herd by

the tuberculin, or other approved tests, subject to the following

regulations:

1. The application therefor shall be upon a blank form provided by the

commissioner and shall include an agreement on the part of the owner of

the herd to improve faulty sanitary conditions, to disinfect his

premises if diseased cattle be found, and to follow directions of the

commissioner designed to prevent the reinfection of the herd and to

suppress the disease and prevent the spread thereof.

2. The commissioner shall cause such cattle to be examined

accordingly, subject to the provisions of this article, and if any

animal responds to such test, he may cause it to be slaughtered or held

in strict quarantine.

3. If after examination an animal be found to be suffering from

tuberculosis such animal shall be slaughtered under the provisions of

this article, or the commissioner may enter into a written agreement

with the owner for keeping such animal in segregation or the

commissioner may, if the condition of such animal warrants it, consign

such animal to any one of the experiment stations or farms owned or

controlled by the state, or by any county of the state, or to the farms

of such public institutions in the state as the commissioner shall

approve, or to hospitals, sanitariums or other institutions existing in

whole or in part for the purpose of suppressing tuberculosis, there to

be kept and used for breeding, dairy or experimental purposes under

regulations to be prescribed by the commissioner.

4. Subject to the rules of the commissioner, an animal found to be

diseased after such examination may continue to be used for breeding

purposes, but the milk from such animal shall not be used for any

purpose until pasteurized at such temperature and for such period as the

commissioner may prescribe.

5. The young of any such diseased animal shall immediately be

separated from its mother and shall not be permitted to receive or be

fed the milk from such affected animal until such milk has been

pasteurized as provided in subdivision four of this section.

6. The commissioner may make rules for classifying herds tested under

this section and for the purpose of giving recognition to herds which

are in a healthy condition, he is hereby authorized to issue such

certification as he may deem proper in relation to such herds. If such

rules and such certification provide for periodical retests of

accredited herds, or other herds not yet accredited, the cost of such

retests, after January first, nineteen hundred and thirty, shall be

borne by the state and there shall be appropriated annually to the

department a sum sufficient to defray the expense of the veterinary

service for such required retests.

Certificate to healthy herds. For the purpose of giving

recognition to other than segregated herds which are certified to him,

after competent examination satisfactory to him, to be in a healthy

condition, the commissioner is hereby authorized to issue such

certificates as he may deem proper to the owner of such herd; to use

such terms to designate such herds as will harmonize with federal

designations of such herds and to adopt such rules as he may deem proper

for the tagging, branding or marking of any animal or animals affected

or believed to be affected with any communicable disease, or exposed

thereto. In the event that such animals are branded it shall not be

construed as cruelty to animals within the meaning of article twenty-six

of this chapter.

Sale, removal or slaughter of animals affected with

tuberculosis. No animal showing physical evidence of tuberculosis or in

which such disease shall have been indicated as a result of the

tuberculin test shall be sold, except under the supervision of the

commissioner. No such animal shall be removed from the premises where

examined, or from any other premises, except upon the written permission

of the commissioner. No such animal shall be slaughtered except under

the supervision of a veterinarian designated by the commissioner as

provided in section eighty-six of this chapter.

Appraisers. The commissioner may employ from time to time

appraisers of condemned animals. The chief or any assistant veterinarian

shall have all the powers of any appraiser of condemned animals under

this article.

Appraisal of diseased animals. Each animal directed to be

slaughtered shall be appraised at its market value. The appraiser shall

make and transmit to the commissioner a certificate of appraisal and

shall deliver to the owner a copy of such appraisal certificate. If the

owner is dissatisfied with the amount of the appraisal he may, within

ten days after the delivery of the copy of appraisal certificate, make

written application to the commissioner for a review of the appraisal.

Upon receipt of such application, the commissioner shall cause an

investigation to be made as to the market value of the animals referred

to in the application for a review. Upon completion of such

investigation, the commissioner shall render a decision either

confirming the appraisal or modifying it by an increase or a decrease of

the amount of the appraisal as justice may require, and shall state in

his decision the reasons therefor and shall transmit a copy of the

decision to the owner. The decision of the commissioner may be reviewed

by a proceeding under article eight of the civil practice law and rules.

Destruction of animals; disposition of carcasses. The

commissioner may prescribe rules for the destruction of animals affected

with infectious or communicable disease, and for the proper disposal of

their hides and carcasses and all objects which might carry infection or

contagion. Whenever in his judgment necessary for the more speedy and

economical suppression or prevention of the spread of any such disease

he may cause to be slaughtered and afterward disposed of, in such manner

as he may deem expedient, any animal or animals which by contact or

association with diseased animals or other exposure to infection or

contagion may be considered or suspected to be liable to contract or

communicate the disease sought to be suppressed or prevented. The

commissioner may seize and cause to be destroyed a carcass or any

portion thereof affected with any communicable disease.

Post-mortem examination of animals. The carcass of every animal

duly condemned and killed under the provisions of this article shall be

examined by a veterinarian designated by the commissioner for the

purpose of determining whether or not disease existed in such animal and

the person making the examination shall file promptly with the

commissioner a report of the examination, in a form prescribed by the

commissioner; but such an examination, and the filing of such a report

thereof, by an inspector of the United States government engaged in meat

inspection service may be accepted by the commissioner in lieu of an

examination and report by a designated veterinarian.

Payments for animals killed. The commissioner shall determine

all claims which may be presented to him for indemnity to owners of

animals killed by the state under the provisions of this article, and

shall file in his office a certificate of his determination and,

provided the claim is determined complete, shall within five days of

having received the claim, issue his order for the amount due to the

comptroller for payment. All claims allowed shall bear interest computed

as provided in section one hundred seventy-nine-g of the state finance

law. A claim shall be considered an invoice within the meaning of the

provisions of article eleven-A of the state finance law. Anyone having a

right of reimbursement pursuant to the provisions of this article shall

be deemed to be a "contractor" having a "contract" with a "state agency"

as such terms are defined in section one hundred seventy-nine-e of the

state finance law. The commissioner shall issue his order for the amount

due as determined by the certificate, which amount shall be paid from

the treasury, on the warrant of the comptroller, out of moneys

appropriated therefor.

Domestic fowl and fertile eggs thereof. Domestic fowl and

fertile eggs of domestic fowl are included within the meaning of the

words "animal" and "domestic animal" as used in sections seventy-two,

seventy-three, seventy-four, seventy-five, seventy-six, seventy-seven,

eighty-two, eighty-three, eighty-five, eighty-six and eighty-seven of

this article.

Indemnity. The following provisions shall govern the payment of

indemnity to owners of animals killed pursuant to the provisions of this

article:

1. In the case of a bovine animal so killed to prevent the spread of

tuberculosis, the owner shall be entitled to receive the net proceeds of

the sale of the animal, and in addition thereto shall be paid indemnity

in a sum sufficient to secure to the owner the full appraised value of

the animal, but not exceeding the sum of six hundred dollars for a

registered pure bred animal or for a pure bred animal less than three

years of age, not registered but eligible for registry, for which a

reasonable time shall be granted for the presentation of registration

papers to the department, and not exceeding the sum of five hundred

dollars for any other bovine animal. In the case of a pure bred animal

three years of age or over not registered at the time of appraisal, such

animals shall be appraised at grade value, and in computing indemnity to

be paid for such animal any other appraised value shall be excluded. The

total amount receivable by the owner from the net proceeds of the sale

of the animal and indemnity from the federal government and indemnity

from the state shall, in every case except as otherwise specifically

limited by this subdivision, equal but not exceed the full appraised

value of the animal.

If a bovine animal for which indemnity has not been paid is

slaughtered at an establishment under state or federal meat inspection

and the carcass thereof is found upon post mortem examination and

laboratory analysis to contain tubercular lesions and such carcass is

condemned and destroyed pursuant to state or federal regulations, the

owner thereof shall be entitled to receive as indemnity four hundred

dollars for carcasses weighing four hundred pounds or less, and six

hundred dollars for carcasses weighing more than four hundred pounds.

2. No indemnity shall be paid to any person who shall have made any

false representation, oral or written, in applying to the commissioner

for an examination of his or her animals, or who shall have violated any

agreement with the state regarding such animals, entered into pursuant

to a provision of this chapter, or who shall have failed to comply with

any instructions or directions given by the commissioner in respect to

the control or eradication of any infectious or communicable diseases

among animals, or who shall have failed to comply with any provision of

this article or rule or regulation promulgated pursuant to such article,

relating to the prevention, control, suppression or eradication of such

disease; provided that indemnity may be allowed when payment is deemed

by the commissioner to further the public interest in preventing,

controlling, suppressing, or eradicating the disease with respect to

which indemnity is sought.

3. If upon post-mortem examination of an equine animal evidence of

glanders be found, and such animal shall not have exhibited physical

symptoms of such disease, indemnity equal to ninety per centum of the

appraisal value, or so much thereof as shall not exceed the sum of one

hundred and twenty-five dollars, shall be paid. If the animal shall have

exhibited such physical symptoms of glanders, indemnity equal to

twenty-five per centum of the appraised value, or so much thereof as

shall not exceed the sum of one hundred and twenty-five dollars, shall

be paid.

4. No indemnity shall be paid unless the animal, if an equine, shall

at the time ordered destroyed, have been within the state of New York

for at least twelve months; and if a bovine shall at the time ordered

destroyed have been within the state for at least three months, except

that in the discretion of the commissioner, indemnity may be paid for a

bovine which has not been within the state three months, provided that

the animal at the time of entry into the state was accompanied by a

tuberculin test chart, authenticated by the chief livestock sanitary

official by whatever name known of the state or province from which the

animal was brought, showing that the animal had originated in a herd

under official supervision, and that such herd, including the animal in

question, had been subjected to a tuberculin test under the regulations

of the accredited herd plan and had passed such test negatively within

one year preceding the order of destruction.

5. If animals are slaughtered or property destroyed by order of the

commissioner to control, suppress or eradicate the disease known as

aphthous fever, or foot and mouth disease, compensation shall be made to

the owners of the animals slaughtered or the property destroyed, but not

more than two hundred dollars shall be paid on account of any bovine

animal.

6. In the case of any poultry, or all or part of any flock which has

been exposed to salmonella enteritidis and which the commissioner has

ordered to be slaughtered pursuant to section eighty-five of this

chapter, the owner shall be entitled to receive, within the amount

appropriated for such purpose, indemnity for each poultry, in a sum

equal to the full appraised value of the poultry, or to not more than

three dollars per poultry, whichever is less.

Final payment of state monies due to the owner of poultry slaughtered

as set forth in this subdivision shall be made within sixty calendar

days after the order is signed by the commissioner. In the event payment

is not made within such period, interest thereafter at the rate of eight

per centum per annum on the amount of the said monies owed shall be paid

to the owner in a single lump sum calculated from the end of the sixty

day period until the final payment is made.

7. In the case of any farmed deer, or all or part of any herd which

has been exposed to tuberculosis and which the commissioner has ordered

to be slaughtered pursuant to sections eighty-one and eighty-five of

this article, the owner shall be entitled to receive the net proceeds of

the sale of the animal, and in addition shall be paid indemnity in the

sum sufficient to secure to the owner the full appraised value of the

animal, but not exceeding the sum of two hundred fifty dollars. The

total amount receivable by the owner from the net proceeds of the sale

of the animal and indemnity from the federal government and indemnity

from the state shall, in every case except as otherwise specifically

limited by this subdivision, equal but not exceed the full appraised

value of the animal.

Indemnity payments shall be subject to the provisions set forth in

section eighty-seven of this article. The amount of indemnity payments

made by the state for testing and owner indemnification related to

tuberculosis in animals by the department shall be limited to the amount

of funds appropriated for such purposes by the legislature, and,

notwithstanding any other provision of law to the contrary, shall

represent fulfillment of the state's obligation for this program.

For purposes of this subdivision, the term "farmed deer" shall mean

members of family cervidae which are raised and bred in confinement.

Control of vaccines, serums and other preparations. For the

purpose of detection, prevention, control or eradication of infectious

or contagious diseases of domestic animals and fowls, the commissioner

may make such exemptions and promulgate such orders, rules and

regulations as he may deem necessary for the proper control, use, and

distribution of any and all therapeutic preparations of microbiological

origin used in the detection, prevention, control or eradication of such

diseases within the state. The following provisions shall govern the

disposition and use of such preparations.

(1) Such preparations used, sold, or given away in this state shall be

labeled in conformity with the provisions of the federal

virus-serum-toxin act of nineteen hundred thirteen, and any act or acts

amendatory thereof or supplemental thereto.

(2) No person shall falsely label or mark any package or container of

any such preparation, or alter any label or mark on any package or

container of such preparation so as to falsify such label or mark.

(3) Such preparations, except those prepared by a federal or a

designated state agency, prepared within or brought into the state to be

retained, sold or given away within the state, for use in the detection,

prevention, control or eradication of infectious or contagious diseases

of domestic animals or fowls, or for the administration thereto for

whatever purpose, shall be reported to the commissioner unless exempted

by him. Such reports shall be made by the individual, firm, corporation

or institution preparing or selling such preparations within the state,

or receiving such preparations within the state to be retained, sold or

given away. The reports shall show the character and purpose of the

preparation, the quantity, the name and address of the manufacturer and

the name and address of the person or firm to whom the product was sold

or given away.

(4) Except by permission of the commissioner, the sale, or gift, or

use of such preparations shall be confined to legally qualified

veterinarians.

(5) Legally qualified veterinarians using such preparations, except

those preparations exempted by the commissioner, in the detection,

prevention, control, or eradication of infectious or contagious diseases

of domestic animals or fowls shall make a report of such use to the

commissioner immediately after the application or administration of such

preparation. The report shall include the name and address of the owner

or custodian of the animals, the character and purpose of the

preparation employed, the amount used, and, if required by the

commissioner, the identification of each animal and/or other necessary

information.

(6) No person shall treat with or inject into any domestic animal any

preparation, material or substance for the purpose of or with the effect

of fraudulently interfering in any manner with a normal reaction to an

officially prescribed test.

(7) No veterinarian shall certify or make a statement showing or

tending to show that any domestic animal has been tested or examined and

found free from an infectious or contagious disease, unless such

certification shall show the character of the test, and bear a statement

that the test was made by an officially accepted method, and that upon

such test or examination the animal failed to give evidence of such

disease.

Examination of cattle for Bang's disease. 1. The commissioner,

within the amounts appropriated for such purpose, may cause an

appropriate test for ascertaining the presence or absence of bovine

infectious abortion, commonly known as and hereafter termed "Bang's

disease," to be made by competent and authorized veterinarians and cause

such bovine animals to be subjected to periodic retests when deemed

necessary by the commissioner. If, from such examination or test, any

animal be deemed by the commissioner to be infected with Bang's disease

and its condition be such as to render it undesirable for the production

of milk or a menace to the health of other animals or persons, such

animal may be immediately removed from the herd, slaughtered or

otherwise disposed of as the commissioner may prescribe.

2. If after examination an animal be found to be suffering from Bang's

disease such animal may be slaughtered under the provisions of this

section, or the commissioner may enter into a written agreement with the

owner for keeping such animal in segregation, or the commissioner may,

if the condition of such animal warrants it, consign such animal to any

one of the experiment stations or farms owned or controlled by the

state, or by any county of the state, or to the farms of such public

institutions in the state as the commissioner shall approve, or to

hospitals, sanitariums or other institutions existing in whole or in

part for the purpose of suppressing such bovine disease; there to be

kept and used for breeding, dairy or experimental purposes under

regulations to be prescribed by the commissioner.

3. No animal showing evidence of Bang's disease as a result of the

official test shall be sold, except under the supervision of the

commissioner. No such animal shall be removed from the premises where

examined, or from any other premises, except upon the written permission

of the commissioner. No such animal shall be slaughtered except under

the supervision of a veterinarian designated by the commissioner as

provided in section eighty-six of this chapter.

4. In the case of a bovine animal killed on account of positive

reaction to Bang's disease, the owner shall, in the discretion of the

commissioner, and within the amount appropriated for such purpose, be

entitled to receive indemnity in a sum equal to seventy-five per cent of

the difference between the full appraised value of the animal and the

total of the amounts received by the owner from the federal government

as indemnity and from the sale of the animal as salvage, but not

exceeding the sum of one thousand five hundred dollars for a registered

pure bred animal and not exceeding the sum of five hundred dollars for

any other bovine animal.

The commissioner may, in his discretion at the request of the owner,

order the slaughter of non-reactor animals if he finds that they have

been exposed to Bang's disease as a member of an infected herd and that

the entire herd should be depopulated to control the spread of the

disease. In such case, the owner shall be entitled to receive, within

the amount appropriated for such purpose, indemnity in an amount equal

to the difference between the full appraised value of the animal and the

total of the amounts received by the owner from the federal government

as indemnity and from the sale of the animal as salvage, but not

exceeding the sum of three hundred dollars for a registered pure bred

animal or one hundred seventy-five dollars for any other bovine animal.

The commissioner may, in his discretion, order the slaughter of any

animal, or of all or part of any herd, which he finds has been exposed

to Bang's disease by association with a positive reactor or by any other

manner of exposure which he finds may make the animal or herd liable to

contract or communicate the disease. In such case, the owner shall be

entitled to receive, within the amount appropriated for such purpose,

indemnity for each reactor animal and for each non-reactor animal as set

forth in this subdivision unless the commissioner finds that such owner

has failed to comply with any laws, rules or regulations relating to the

control or eradication of brucellosis.

Final payment of state moneys due the owner of animals slaughtered as

set forth in this subdivision shall be made within sixty calendar days

after the order is signed by the commissioner. In the event payment is

not made within such period, interest thereafter at the rate of eight

per centum per annum on the amount of the said moneys owed shall be paid

to the owner in a single lump sum calculated from the end of the sixty

day period until the final payment is made.

For purposes of this section, the term "registered pure bred animal"

shall include a pure bred animal less than three years of age, not

registered but eligible for registry, for which application for registry

has been duly made prior to the appraisal. Pure bred animals three years

of age or over, not registered at the time of appraisal, shall be

appraised at grade value.

5. No indemnity shall be paid unless the animal shall, at the time

ordered destroyed, have been within the state for at least three months,

and provided further that the animal came into the state in accordance

with the then existing laws and regulations relative to Bang's disease.

6. The commissioner, within the limits of the amount appropriated for

such purpose or purposes, may initiate an official program of calfhood

vaccination, may cause blood samples to be taken, may have such samples

tested, and may make necessary rules and regulations relative thereto,

and provide for identifying and recording all vaccinated animals in

order that all such animals may be properly and officially supervised.

The commissioner may cooperate for such purpose or purposes with federal

or county officials upon such terms as he approves.

Declaration of policy and purposes. Infectious and

communicable disease affecting domestic animals continues to exist in

this state, and the existence thereof endangers the health and welfare

of the people of the state. Despite the moneys spent to control,

suppress and eradicate such infection and disease its incidence is the

concern of the legislature. The powers of quarantine and condemnation

held and exercised by the department of agriculture and markets tend to

suppress but do not constitute an adequate control. It is hereby

declared to be a matter of legislative determination that a more

exacting supervision of those who, as a business, whether for profit or

not-for-profit, deal in, handle, transport, and rescue domestic animals

is needed in the public interest and that in the exercise of the police

power such persons be required to hold a permit before engaging in such

activities.

Definitions. As used in this article unless otherwise

expressly stated:

1. The term "auctioneer" means a person who sells, or makes a business

of selling cattle, swine, sheep, goats, camelids or horses, at auction.

2. The term "auction" means a public sale of cattle, swine, sheep,

goats, camelids or horses.

3. The term "cattle" means the entire family of bovidae.

4. The term "camelid" means the entire family of camelidae.

5. The term "cervid" means any member of the family of cervidae.

6. The term "dealer" means any person who buys and sells cattle,

horses, swine, cervids, camelids, poultry, goats, or sheep as a business

enterprise. The term shall not include persons who buy and sell such

animals as part of a bona fide breeding, feeding or farming operation,

or receive such animals exclusively for slaughter on their own premises,

or purchase or sell horses either as part of a bona fide riding or

racing operation or for their own personal use.

7. The term "goat" means any member of the genus capra.

8. The term "horse" means the entire family of equidae.

9. The term "live poultry market" means any premises where poultry are

assembled and held for sale and slaughter. It does not include livestock

auction buildings.

10. The term "official backtag" means a unique, tamper-resistant

device approved by the United States department of agriculture, which,

when affixed to cattle, cervid, swine or camelid, identifies and

distinguishes animals that shall be moved directly to slaughter.

11. The term "official ear tag" means a unique, tamper-resistant

device approved by the United States department of agriculture, which,

when affixed to the ears of cattle, cervid, swine, sheep, goat, or

camelid, identifies and distinguishes such animals.

12. The term "poultry" means a domesticated fowl including chickens,

turkeys, waterfowl, guinea fowl and game birds commonly used for the

production of meat and eggs. It does not include pigeons.

13. The term "poultry transporter" or "transporter of poultry" means

any person who transports poultry or otherwise moves poultry to a live

market.

14. The term "registration number" means the number assigned to and

that identifies a particular domestic animal, where such number and the

identifying characteristics of such domestic animal are set forth in a

registry maintained by a breed association recognized by the department.

15. The term "rescue" means the action by a person that accepts

cattle, swine, horses, sheep, goats, cervids, or camelids from any

source and attempts to find permanent homes through adoption, transfer,

sale, lease, sponsorship, or gift of such livestock.

16. The term "sheep" means any member of the genus ovis.

17. The term "swine" means the entire super family of suidoidae.

Prohibitions. 1. It shall be unlawful for any person to

purchase, deal in, sell, or rescue cattle, swine, horses, cervids,

camelids, sheep, goats or poultry; to operate or conduct an auction

where cattle, swine, horses, cervids, camelids, sheep, goats or poultry

are sold; or to transport poultry, unless such dealer, auctioneer,

poultry transporter, or rescue holds a domestic animal health permit

granted by the commissioner.

2. No person who holds or is required to hold a domestic animal health

permit shall purchase, sell, rescue, or otherwise deal in cattle,

cervids, swine, camelids, sheep or goats unless and until an ear tag is

securely affixed to the ear of such animal, unless such animal is

otherwise identified by a registration number, distinctive tattoo,

electronic identification device or some other unique permanent mark or,

for an animal that is moved directly to slaughter, an official backtag.

3. No person shall deface, obliterate or remove an official ear tag or

other identification mark affixed to an animal under their control, or

shall affix an official ear tag to the ear of an animal that has

previously been affixed to the ear of another animal.

Application and permit fees. Application for an animal health

permit shall be made to the commissioner. The application shall be on a

form prescribed by the commissioner and shall be accompanied by an

animal health permit fee of fifty dollars. The applicant shall satisfy

the commissioner of their character and responsibility and shall set

forth such information as the commissioner shall require regarding the

past record of infection or contagion among domestic animals dealt in,

or handled, or sold, or rescued by the applicant during the past five

years. A permit shall be issued for a two year period and a renewal

application shall be submitted to the commissioner on or before the

thirtieth day prior to the expiration of the permit.

Refusing and revoking permits. The commissioner, after due

notice and opportunity of hearing to the applicant or permittee, may

deny an application for or revoke or refuse to renew a permit when the

commissioner is satisfied that the applicant or permittee has:

1. violated the statutes of the state of New York or of the United

States or the official regulations of the commissioner governing the

interstate or intrastate movement, shipment or transportation of cattle

or horses, swine, camelids, cervids, sheep, goats or poultry;

2. made false or misleading statements in their application for an

animal health permit or has made false or misleading statements as to

the health or physical condition of cattle, horses, swine, camelids,

cervids, sheep, goats or poultry; regarding official tests;

3. knowingly sold for purposes other than slaughter cattle, horses,

swine, camelids, cervids, sheep, goats or poultry which were affected

with a communicable disease;

4. failed to observe sanitary measures in barning, stabling premises

or vehicles used for the stabling, holding or transportation of cattle,

horses, swine, camelids, cervids, sheep, goats or poultry;

5. engaged in a course of dealing of such a nature as to satisfy the

commissioner of their inability or unwillingness properly to conduct the

business for which an animal health permit has been issued;

6. been convicted of a felony;

7. had their animal health permit terminated or revoked;

8. ceased to operate the business for which the animal health permit

was issued; or

9. failed to comply with any of the provisions of this chapter or the

rules and regulations promulgated pursuant thereto.

Proceedings to review. The action of the commissioner in

denying an application or revoking an animal health permit may be

reviewed in the manner provided by article seventy-eight of the civil

practice law and rules and the decision of the commissioner shall be

final unless within thirty days from the date of service thereof upon

the applicant or permittee affected thereby the court proceeding is

instituted to review such action. The pleadings upon which such review

proceeding is instituted shall be served upon the commissioner or upon

an assistant commissioner, personally, in the manner provided for the

personal service of a summons in an action unless a different manner of

service is provided in an order to show cause granted by a justice of

the supreme court.

Records. All records as now required by the commissioner

respecting the health of domestic animals shall be continued and the

commissioner may require such other and further records as from time to

time may seem to him to be necessary or desirable in his enforcement of

disease control.

Violations; remedies. The commissioner may institute such

action at law or in equity as may appear necessary to enforce compliance

with any provision of the statutes, rules and orders committed to his

administration in regard to animal health permits and infectious or

communicable disease affecting domestic animals, and in addition to any

other remedy under article three of this chapter or otherwise may apply

for relief by injunction if necessary to protect the public interest

without being compelled to allege or prove that an adequate remedy at

law does not exist. Such application may be made to the supreme court in

any district or county as provided in the civil practice law and rules,

or to the supreme court in the third judicial district.

Hog cholera and pseudorabies control; indemnity. 1. The

commissioner, to control, suppress or eradicate hog cholera and

pseudorabies, may cause to be made appropriate examinations or tests for

ascertaining the presence or absence of such diseases in swine. If,

from such examinations or tests, any swine be found to be infected with

or exposed to hog cholera or pseudorabies and such condition be such as

to cause the swine to be a menace to the health of other animals the

commissioner may order such swine to be immediately slaughtered or

otherwise disposed of as he may prescribe.

2. No swine infected with or exposed to hog cholera or pseudorabies

shall be sold or removed from the premises where examined, or from any

other premises, except upon written permission of the commissioner. No

swine so infected or exposed shall be slaughtered or killed except under

the supervision of the commissioner.

3. The commissioner, within the appropriation for such purpose, may

cause blood samples of swine to be taken and tested.

4. Swine killed on account of hog cholera or pseudorabies shall be

appraised and indemnity shall be paid to the owner as provided in this

article, except as otherwise specifically limited by this section. The

owner shall be entitled to receive the net proceeds, if any, of the sale

of the swine, and in addition thereto, within the appropriation for such

purpose, shall be paid indemnity in a sum not exceeding one hundred

dollars for a registered purebred, inbred or hybrid swine, and not

exceeding forty dollars for any other swine. A purebred swine is any

breeding swine upon which a certificate of pure breeding has been issued

by a purebred swine association; an inbred or hybrid swine is any

breeding swine upon which a certificate or registration has been issued

by a recognized inbred or hybrid registry association. Certificates of

pure breeding or registration for inbred or hybrid swine shall be

presented at the time of appraisal or such swine will be appraised as

grades, provided, however, that in the absence of such certificates or

registrations the commissioner may grant a reasonable time for the

presentation of such certificates or registrations to the appraiser.

The total amount receivable by the owner from the net proceeds of the

sale of the swine and indemnity from the federal government and

indemnity from the state shall, in every case, except as otherwise

specifically limited by this section, equal but not exceed the full

appraised value of the swine.

5. The commissioner may adopt and enforce rules and regulations, and

may cooperate with the authorities of the United States government and

with local officials, to implement the provisions of this section.

Protecting the breeding of pure bred stock. It shall be

unlawful for any person or persons owning or in the possession of any

bull of the age of more than six months, any stallion of the age of more

than eighteen months, or buck or boar over five months of age, to suffer

or permit such animal or animals to go, or range, or run at large on any

lands or premises without the consent of the person entitled to the

possession of such land or premises.

No right of action shall accrue under this section to any person who,

being liable to contribute to the erection or repair of a division fence

as required by the town law, shall neglect or refuse to make and

maintain his proportion of such fence, or shall permit the same to be

out of repair, for damages done by any animal described in this section

coming, by reason of such defective fence, from adjoining lands where

such animal was lawfully kept.

Animal ear tags or other identification. A person who without

authorization by the commissioner, (a) cuts out, removes, obliterates or

destroys a New York state department of agriculture and markets official

ear tag or other official New York state identification tag, device or

mark on any cattle, camelid, deer, sheep, goats or swine, as defined in

this article, other than such identification which may be used for the

owner's own records in the state of New York, or (b) inserts or attaches

to the ear of any cattle, camelid, deer, sheep, goats or swine, as

defined in this article, in the state of New York a New York state

department of agriculture and markets official ear tag or inserts in or

attaches to any such animal any other official New York state

identification tag, device or mark other than such identification which

may be used for the owner's own records that has not been duly issued

for said animal by the department is guilty of a misdemeanor.

False pedigree of animals. Every person who by any false

pretense shall obtain from any club, association, society or company for

improving the breed of cattle, horses, sheep, swine or other domestic

animals the registration of any animal in the herd register or other

register of any such club, association, society or company or a transfer

of any such registration, and every person who shall knowingly give a

false pedigree of any animal, shall be deemed guilty of a misdemeanor.

Examination of horses for equine infectious anemia. 1. The

commissioner or his authorized agent may cause to be administered to any

horse within the state any test he finds appropriate for ascertaining

the presence or absence of equine infectious anemia, also known as

"swamp fever." Upon order of the commissioner or his authorized agent,

the owner, custodian or harborer of any horse shall confine, present,

control and restrain such animal or animals for the examinations, tests

and identification procedures the commissioner deems necessary and if

exposure to equine infectious anemia is apparent, the commissioner shall

order confinement for a period up to sixty days or until a negative test

can be obtained. During the period of such test, and until the

commissioner or his agent shall otherwise direct, the owner, custodian

or harborer of any animal being tested shall keep such animal in

segregation or confinement as the commissioner's agent shall direct, and

no person shall remove a horse under test from the premises where the

test is being conducted, nor remove from the horse, or alter or deface

any temporary identification marks or devices affixed for the purpose of

the test, except with the written consent of the commissioner's

authorized agent.

2. (a) Any horse found by the commissioner after testing to be

infected with equine infectious anemia may be freeze branded in a manner

prescribed by the commissioner. Upon notification of the results of such

test, the owner, custodian or harborer of any animal found by the

commissioner to be infected with equine infectious anemia shall confine,

present and restrain such animal for freeze branding by any duly

authorized agent of the commissioner at such time as he may direct.

(b) Notwithstanding any other provisions of law, the owner, harborer

or custodian of any horse freeze branded pursuant to this section shall

not be indemnified for any loss in value of such animal.

(c) The term "horse" as used throughout this section shall apply to

the entire family of equidae. The commissioner may by regulation exclude

from the provisions of this section horses within defined age

categories.

3. No person shall import or bring into the state any horse unless

such horse has been tested for equine infectious anemia and reacted

negatively within a period prior to entry, and in a manner, prescribed

by the commissioner in regulations.

4. No person shall transport on any public highway within this state

any horse unless such horse has been tested for equine infectious anemia

and reacted negatively within a period prior to such transportation, and

in a manner, prescribed by the commissioner in regulations.

5. No person shall sell, exchange, barter or give away any horse

unless such horse has been tested for equine infectious anemia and

reacted negatively within a period prior to such transfer of ownership,

and in a manner, prescribed by the commissioner in regulations.

6. Subdivisions three, four and five of this section shall not apply

to horses which are imported, sold, exchanged, bartered, given away or

transported under permit from the commissioner or his authorized agent

for immediate slaughter, research or such other purposes as the

commissioner finds are consistent with the control and eradication of

equine infectious anemia, as prescribed by the commissioner in

regulations.

Certificates of registry of domestic animals. Certificates of

registry, and of transfer of domestic animals when issued by and under

seal of a duly organized and recognized corporation or association

formed for the purpose of registering pure-bred domestic animals, may be

received in evidence in any action or proceeding, and shall be

presumptive evidence of the facts and circumstances stated therein.

Declaration of policy and purpose. Whereas unsanitary

conditions in the slaughtering of animals and fowl for food have been

found to exist in this state, and whereas such conditions endanger the

health and welfare of the people of the state, it is hereby declared to

be a matter of legislative determination that the supervision of the

slaughtering of animals and fowl is in the public interest, and that

this article is enacted in the exercise of the police power of the state

and its purposes are the protection of the public health.

* § 96-b. License required. 1. No person, firm, partnership or

corporation not granted inspection pursuant to the federal meat

inspection act, the federal poultry products inspection act, article

five-B or article five-D of this chapter shall operate any place or

establishment where animals or fowls are slaughtered or butchered for

food unless such person, firm, partnership or corporation be licensed by

the commissioner. In addition to any other requirements established by

the commissioner, such license shall prohibit the slaughter or

butchering by slaughterhouses of domesticated dog and domesticated cat

to create food, meat, meat by-products or meat food products for human

or animal consumption. An application for license shall be made upon a

form prescribed by the commissioner on or before the first day of May in

every other year, for a two year license period commencing upon the

following first day of June. With the application there shall be paid a

license fee of two hundred dollars.

2. In a city with a population of one million or more, the

commissioner shall not license any person, firm, partnership or

corporation to operate any place or establishment where animals and/or

fowls are slaughtered or butchered for food within a fifteen hundred

foot radius of a residential dwelling. This subdivision shall not apply

to any premises upon which a person, firm, partnership or corporation

has been continuously conducting business as described in this

subdivision from a date prior to the effective date of this subdivision.

3. In addition to any other requirements established by this chapter,

an applicant for a license pursuant to this article shall furnish

evidence: (a) of his or her good character, experience and competency,

(b) that the establishment has adequate facilities and equipment for the

business to be conducted, (c) that the establishment is such that the

cleanliness of the premises can be maintained and (d) that the product

produced therein will not become adulterated.

* NB Effective until August 5, 2028

* § 96-b. License required. No person, firm, partnership or

corporation not granted inspection pursuant to the federal meat

inspection act, the federal poultry products inspection act, article

five-B or article five-D of this chapter shall operate any place or

establishment where animals or fowls are slaughtered or butchered for

food unless such person, firm, partnership or corporation be licensed by

the commissioner. In addition to any other requirements established by

the commissioner, such license shall prohibit the slaughter or

butchering by slaughterhouses of domesticated dog and domesticated cat

to create food, meat, meat by-products or meat food products for human

or animal consumption. An application for license shall be made upon a

form prescribed by the commissioner on or before the first day of May in

every other year, for a two year license period commencing upon the

following first day of June. With the application there shall be paid a

license fee of two hundred dollars.

In addition to any other requirements established by this chapter, an

applicant for a license pursuant to this article shall furnish evidence:

(a) of his or her good character, experience and competency, (b) that

the establishment has adequate facilities and equipment for the business

to be conducted, (c) that the establishment is such that the cleanliness

of the premises can be maintained and (d) that the product produced

therein will not become adulterated.

* NB Effective August 5, 2028

Posting of inspection results required. Each person, firm,

partnership or corporation licensed pursuant to this article shall post

a copy of the date and results of its most recent sanitary inspection by

the department in a conspicuous location near each public entrance, as

prescribed by the commissioner. Such copies shall also be made available

to the public upon request.

Application of article. Except for the absolute prohibition

against the slaughtering or butchering of domesticated dog and

domesticated cat to create food, meat, meat by-products or meat food

products for human or animal consumption contained in this article which

shall continue to apply notwithstanding the following exclusions from

this article, the remaining provisions of this article shall not apply

to (a) any bona fide farmer who butchers his own domestic animals or

fowl on his farm exclusively for use by him and members of his household

and his non-paying guests and employees, or (b) any custom slaughterer,

(as used in this section, "custom slaughterer" means a person, firm,

corporation or association who or which operates a place or

establishment where animals are delivered by the owner thereof for

slaughter exclusively for use, in the household of such owner, by him,

and members of his household and his non-paying guests and employees,

provided, that such custom slaughterer does not engage in the business

of buying or selling any carcasses, parts of carcasses, meat or meat

products of any animal), or (c) any person who slaughters not more than

two hundred fifty turkeys or an equivalent number of birds of all other

species raised by him on his own farm during the calendar year for which

an exemption is sought (four birds of other species shall be deemed the

equivalent of one turkey), provided that such person does not engage in

buying or selling poultry products other than those produced from

poultry raised on his own farm, or (d) any person who donates, and any

charitable or not-for-profit organization that possesses, prepares or

serves game or wild game pursuant to section 11-0917 of the

environmental conservation law (and any person who processes game or

wild game on behalf of such donor).

Unlawful acts. 1. It shall be unlawful for any person, firm,

partnership or corporation to operate any slaughterhouse, abattoir or

other place or establishment where animals or fowl are slaughtered or

where meat or meat food products are prepared or processed for food

unless such place or establishment is maintained and operated in a clean

and sanitary manner, and conducted in accordance with the provisions of

this article and with the regulations of the commissioner.

2. It shall be unlawful to expose any meat, fowl or meat food product

in any slaughterhouse, abattoir or other place or establishment to

insects, live animals or injurious contamination; or to slaughter,

possess or sell unwholesome meat. Meat shall be unwholesome within the

meaning of this article if it be from a diseased animal or one which

shall have died other than by slaughter, or if such meat shall be

contaminated with filth or shall have been slaughtered, processed or

handled under insanitary conditions.

3. It shall be unlawful to feed hogs uncooked offal from a

slaughterhouse.

4. It shall be unlawful for any slaughterhouse, abattoir or other

place or establishment, or for any person, to slaughter or butcher

domesticated dog (canis familiaris) or domesticated cat (felis catus or

domesticus) to create food, meat or meat products for human or animal

consumption. A violation of this subdivision shall subject the offender

to a civil penalty of up to one thousand dollars for an individual and

up to five thousand dollars for a corporation for the first violation.

Any subsequent violation shall be subject to a civil penalty of up to

twenty-five thousand dollars. Any civil penalties collected pursuant to

this subdivision shall be paid to the animal population control fund

established by section ninety-seven-xx of the state finance law.

Denial, revocation and suspension of licenses. 1. The exposure

of meat, fowl or meat food product to insects, live animals or injurious

contamination, or the slaughter, possession or sale of unwholesome meat,

or the slaughtering, butchering, possession or sale of the fur, hair,

skin or flesh of a domesticated dog (canis familiaris) or domesticated

cat (felis catus or domesticus) shall be cause for the denial of an

application for license, or the revocation or suspension of a license

already granted. Any such denial, revocation or suspension may be

reviewed by a proceeding instituted under article seventy-eight of the

civil practice law and rules.

2. After due notice and opportunity to be heard, the license issued to

any person, firm, partnership or corporation to operate any place or

establishment where animals or fowls are slaughtered or butchered for

food pursuant to subdivision one of this section shall be revoked upon

establishing failure of three consecutive inspections. Nothing in this

subdivision shall prohibit the commissioner from taking licensing action

prior to failure of three consecutive inspections.

3. Each licensee shall post a copy of the date and results of its most

recent sanitary inspection by the department in a conspicuous location

near each public entrance, as prescribed by the commissioner. Such

copies shall also be made available to the public upon request. Any

licensee that violates the provisions of this subdivision shall be

subject to a penalty of five hundred dollars for each day of violation.

4. In addition to any other grounds established by this article for

the denial, revocation and suspension of licenses, the commissioner may

decline to grant a new license, may decline to renew a license, or may

suspend or revoke a license after due notice and opportunity for hearing

whenever he or she finds that:

(a) any statement contained in an application for license is or was

false or misleading;

(b) the establishment does not have facilities or equipment sufficient

to maintain adequate sanitation for the activities conducted;

(c) the establishment is not maintained in a clean and sanitary

condition or is not operated in a sanitary or proper manner;

(d) the maintenance and operation of the establishment is such that

the product produced therein is or may be adulterated;

(e) the establishment has failed or refused to produce any records or

provide any information demanded by the commissioner reasonably related

to the administration and enforcement of this article;

(f) the applicant or licensee, or an officer, director, partner,

holder of ten percent of the voting stock, or any other person

exercising any position of management or control has failed to comply

with any of the provisions of this chapter or rules and regulations

promulgated pursuant thereto; or

(g) any person including the applicant or licensee, or an officer,

director, partner or any stockholder, exercising any position of

management or control has been convicted of a felony in any court of the

United States or any state or territory and that there is a direct

relationship between that felony and the license sought or held by the

individual.

Definitions. As used in this article, unless otherwise

expressly stated, or unless the content or subject matter otherwise

requires;

1. "Department" means the department of agriculture and markets.

2. "Commissioner" means the commissioner of agriculture and markets.

3. "Person" means any person, firm, corporation, or association.

4. "Inspection legend" means a mark or a statement authorized by the

provisions of the federal law, on a carcass, meat, meat by-product, or

meat food product indicating the product has been inspected and passed.

5. "Meat label" means a display of written, printed, or graphic matter

authorized by the provisions of the federal law on a container

indicating the meat, meat by-products, or meat food products contained

therein have been inspected and passed.

6. "Meat" means the edible part of the muscle of cattle, swine, sheep,

goats, horses and other large domesticated animals which is skeletal or

which is found in the tongue, in the diaphragm, in the heart or in the

esophagus, with or without the accompanying or overlying fat, and the

portions of bone, skin, nerve and blood vessels which normally accompany

the muscle tissue and which are not separated from it in the process of

dressing. It does not include the muscle found in the lips, snout or

ears. Any edible part of the carcass which has been manufactured, cured,

smoked, processed or otherwise treated shall not be considered meat.

7. "Meat by-product" means any edible part other than meat which has

been derived from cattle, swine, sheep, goats, horses and other large

domesticated animals. This term shall apply only to those parts which

have not been manufactured, cured, smoked, processed or otherwise

treated.

8. "Meat food product" means any product capable of use as human food

which is made wholly or in part from any meat or other portion of the

carcass of any animal, excepting products which contain meat or other

portions of such carcasses only in a relatively small proportion or

historically have not been considered by consumers as products of the

meat food industry, and which are exempted from definition as a meat

food product by the commissioner under such conditions as he may

prescribe to assure that the meat or other portions of such carcasses

contained in such product are not adulterated and that such products are

not represented as meat food products.

9. "Custom slaughterer" means a person, firm, corporation or

association who or which operates a place or establishment where animals

are delivered by the owner thereof for slaughter exclusively for use, in

the household of such owner, by him and members of his household and his

non-paying guests and employees, provided, that such custom slaughterer

does not engage in the business of buying or selling any carcasses,

parts of carcasses, meat or meat products of any animal.

10. "Custom slaughtered meat" means meat from animals which have been

slaughtered by a custom slaughterer for the owner exclusively for use,

in the household of such owner, by him and members of his household and

his non-paying guests and employees.

11. "Farm dressed meat" means meat from animals slaughtered by a bona

fide farmer who, as an incident of such farm operation, slaughters his

own domestic animals on his own premises exclusively for use, in his

household, by him and members of his household and his non-paying guests

and employees.

12. "Edible" and "for human consumption" shall apply to any carcass,

or part or product of a carcass, of any animal, unless it is denatured

or otherwise identified as required by regulations prescribed by the

commissioner to deter its use as human food, or is naturally inedible by

humans.

13. "Animal" means cattle, swine, sheep, goats, horses and other large

domesticated mammals.

14. "Carcass" means all parts, including viscera of a slaughtered

animal, that are capable of being used for human food.

15. "Federal inspection" means the meat inspection maintained by the

United States department of agriculture.

16. "Federal law" means the federal meat inspection act and all acts

amendatory thereof and supplementary thereto.

17. "Game or wild game" means any deer or big game, or portions

thereof, as defined in section 11-0103 of the environmental conservation

law, taken by lawful hunting.

Application of article. Notwithstanding any other provisions

of this article, the knowing sale, exposure for sale, exchange or

transportation at any and all places within the state of the fur, hair,

skin or flesh of domesticated dog (canis familiaris) or domesticated cat

(felis catus or domesticus) as food, meat, custom slaughtered meat, farm

dressed meat, meat by-product or meat food product edible by humans or

animals is hereby prohibited. A violation of this section shall subject

the offender to a civil penalty of up to one thousand dollars for an

individual and up to five thousand dollars for a corporation for the

first violation. Any subsequent violation shall be subject to a civil

penalty of up to twenty-five thousand dollars. Any civil penalties

collected pursuant to this section shall be paid to the animal

population control fund established by section ninety-seven-xx of the

state finance law. Any authorization given by or pursuant to the

provisions of this article to handle, sell, expose for sale, exchange or

transport the carcasses of animals, parts thereof, meat, meat

by-products and meat food products within the state and any exclusion

from the application of this article applicable to custom slaughtered

meat or contained in section ninety-six-j or another provision of this

article shall not apply to the knowing sale, exposure for sale, exchange

or transportation of the fur, hair, skin or flesh of domesticated dog or

domesticated cat as food, meat, custom slaughtered meat, farm dressed

meat, meat by-product or meat food product edible by humans or animals

which is prohibited by the provisions of this section. In the case of

any conflict with another provision of this article, the provisions of

this section shall prevail over such other provision of this article.

General powers. The department, through the commissioner, is

hereby vested with the power to administer and enforce the provisions of

this article.

Farmer and custom processors. This article shall not apply to

any bona fide farmer who butchers his own domestic animals on his own

farm exclusively for use by him and members of his household and his

non-paying guests and employees, custom slaughterers, custom slaughtered

meat, farm dressed meat, custom meat by-products, custom meat food

products, and establishments where only such products are prepared,

produced, processed or packaged, provided, however, that custom

slaughtered meat, farm dressed meat, custom meat by-products and custom

meat food products shall be identified as such in such manner as may be

required by the commissioner by duly promulgated rules and regulations.

Inspection legend required. Except as exempted by the

provisions of this article no carcasses of animals, parts thereof, meat,

meat by-product or meat food product for human consumption, shall be

sold, exposed for sale, exchanged or transported within the state unless

the same shall bear an official inspection legend or a meat label

affixed pursuant to a federal inspection.

Sale of inspected meat. All carcasses of animals, parts

thereof, meat, meat by-products, and meat food products bearing an

inspection legend or meat label affixed after a federal inspection may

be sold, exposed for sale, exchanged or transported at all places within

the state, except that dressed carcasses of equines or other large

domesticated animals, parts, meat, meat by-products and meat food

products thereof may be sold, exposed for sale, exchanged or transported

only in accordance with such rules and regulations as may be enacted by

the commissioner.

Mishandling and improper transportation of meat, meat

by-products and meat food products. (1) No person, firm, association,

partnership or corporation engaged in carrying or transporting meat,

meat by-products or meat food products shall transport such products

except in an enclosed vehicle in such a manner as to assure delivery of

the aforesaid products so that frozen products remain frozen and such

other products do not rise above forty degrees Fahrenheit, provided,

however, that this section shall not apply to establishments engaging in

meat handling operations at retail stores and restaurants, when

conducted at any retail store or restaurant or similar retail-type

establishment for sale in normal retail quantities or service of such

articles to consumers at such establishments, nor to household

consumers. This section shall not apply to meat food products which

because of their method of manufacture, processing, and packaging,

require no special handling temperatures to prevent adulteration or

unwholesomeness including, but not limited to, commercially sterile meat

food products in hermetically sealed containers.

(2) The commissioner may promulgate rules and regulations to further

define standards for the transportation of meat, meat by-products or

meat food products to further ensure that they are delivered in an

unadulterated and wholesome condition.

(3) A violation of the provisions of this section shall be a violation

as defined in subdivision three of section 10.00 of the penal law.

Unmarked and unlabeled meat. Inasmuch as it cannot be

determined for certain by any presently known method of inspection

whether meat is unsound, unhealthful, unwholesome, or otherwise unfit or

unsafe for food unless the organs and other tissues of an animal are

inspected when slaughtered, or whether meat, meat by-products or meat

food products are unsound, unhealthful and unwholesome or contain dyes,

chemicals, preservatives or ingredients which render such products

adulterated unless inspected where processed, and as uninspected meat,

meat by-products and meat food products may be unfit or unsafe for human

consumption, the commissioner shall seize and destroy for food purposes

any meat, meat by-product or meat food product that does not bear an

official inspection legend affixed pursuant to a federal inspection;

provided nothing herein shall affect the possession by a custom

slaughterer or custom processor, or the possession and transportation by

the owner of custom slaughtered meat or farm dressed meat when meats are

identified as such in accordance with rules and regulations duly

promulgated pursuant to the federal meat inspection act and all acts

amendatory thereof; and provided, further, nothing herein shall affect

the transportation of dead animals, properly identified, condemned

carcasses and parts of carcasses, and other condemned or inedible

product or material to rendering plants.

Unlawful possession of inspection legend and meat label. It

shall be unlawful for any person to possess, keep, or use an inspection

legend or meat label or to possess, keep or use any stamp or label

simulating the inspection legend and meat label unless authorized

pursuant to the federal meat inspection act.

Rules and regulations. The commissioner is hereby authorized

to enact, amend and repeal rules and regulations necessary to carry out

and give full force and effect to the provisions of this article.

The commissioner is hereby authorized to adopt, insofar as

appropriate, the regulations, from time to time promulgated under such

federal act or acts, and to change or amend the regulations promulgated

under this chapter so as to conform, insofar as appropriate, to those

promulgated under the federal meat inspection act and all acts

amendatory thereof and supplementary thereto, particularly the wholesome

meat act.

The commissioner shall hold a public hearing upon a proposal to

promulgate any new or amended regulations under this article, except in

the case of a proposal to adopt applicable regulations promulgated under

the federal act or acts.

Enforcement. 1. The commissioner may institute such action at

law or in equity as may appear necessary to enforce compliance with any

provision of this article and the rules and regulations adopted and

promulgated hereunder and, in addition to any other remedy under article

three of this chapter or otherwise, may apply for relief by injunction

if necessary to protect the public interest without being compelled to

allege or prove that an adequate remedy at law does not exist. Such

application may be made to the supreme court in any county pursuant to

the civil practice law and rules or to the supreme court in any county

of the third judicial district.

2. Whenever the commissioner is authorized or directed hereunder to

render unfit for food or seize and destroy any meat, meat by-product, or

meat food product, the destruction and disposition of such meat, meat

by-product, or meat food product, as well as any necessary storage,

handling or other incidentals, shall be the responsibility both

financially and otherwise, of the owner of the establishment or other

person having custody or possession of such meat, meat by-product, or

meat food product; provided, however, that such destruction or

disposition shall be carried out only under the direction and

supervision of the commissioner. Nothing in this subdivision shall be

construed as preventing the commissioner from destroying or disposing of

meat, meat by-products, or meat food products found to be unfit or

unsafe for use as food where such action is necessary for the protection

of public health.

Severability. If any provision of this article or the

application thereof to any person or circumstances is held invalid, such

invalidity shall not affect other provisions or applications of the

article which can be given effect without the invalid provision or

application, and to this end the provisions of this article are declared

to be severable.

Declaration of policy and purposes. The use as food of meat

or meat products derived from dead, dying, disabled, diseased or

condemned animals endangers the health and welfare of the people of the

state. The powers of seizure, quarantine and condemnation held and

exercised by the department tend to suppress but do not constitute

adequate controls to prevent such adulterated and unfit meat and meat

products from being sold for consumption. It is hereby declared to be a

matter of legislative determination that regulation and supervision of

those who deal in, handle, transport, process or dispose of such animals

and the products therefrom are needed in the public interest, and that

in the exercise of the police power such persons be required to be

licensed before engaging in such activities and that such activities be

regulated and supervised. The general purpose of this article is to

protect the public health, safety and welfare by controlling the use,

movement and disposition of dead, dying, disabled, diseased, or

condemned animals, and the meat and meat products derived therefrom.

Definitions. As used in this article, unless otherwise

expressly stated, or unless the context or subject matter otherwise

requires:

(1) "Disposal plant" means the premises or place where bodies,

carcasses or portions thereof of dead, dying, diseased, disabled or

condemned animals or inedible meat are received and held for the purpose

of burning, processing or rendering or otherwise obtaining the hides,

skins, grease or meat therefrom in any manner whatsoever.

(2) "Processing" means any method whereby meat or meat products

derived from animals are cut, boned, mixed, blended, canned, cured or

otherwise prepared for purposes other than for human consumption.

(3) "Inedible meat" means meat and meat products derived from dead,

dying, disabled, diseased or condemned animals, and meat or meat

products, regardless of origin, which are adulterated within the meaning

of section two hundred of this chapter.

(4) "Rendering" means the method by which animal bodies, carcasses or

portions thereof, and meat or meat product are melted down and the fat

or grease extracted therefrom.

(5) "Decharacterization" means the uniform application of sufficient

quantities of dye, charcoal, malodorous fish oil, acid, or any other

agent approved by the commissioner upon and into the freely slashed

flesh of meat or meat product not being rendered so as to unequivocally

preclude its use for human food.

(6) "Transportation service" means the operation within the state of a

vehicle or vehicles by a person not otherwise licensed to operate a

disposal plant, for the purpose of transporting for hire unprocessed

animal bodies, carcasses or portions thereof, and meat or meat products

which are not intended for eventual use for human consumption.

(7) "Vehicle" means a conveyance or any piece of equipment whatsoever

used in transportation service.

(8) "Animal" means any animal, domestic or feral, or any domesticated

bird.

(9) "Dead animal" means an animal that has died otherwise than by

slaughter.

(10) "Meat" means the entire bodies, carcasses or portions thereof of

animals or birds.

(11) "Meat product" means any product which is made or derived wholly

or in part from the body, carcass or portions thereof of animals or

birds.

Exemptions. This article shall not apply to disposal plants

operated under federal inspection or under inspection pursuant to

article five-B of this chapter; to any person, who, in the regular

course of a refuse collection business, gathers up and disposes of the

bodies of dead fowls, cats, dogs or other small animals; or to any

person, including but not limited to members of state or municipal

highway maintenance crews or state or municipal officials or employees

who in the pursuit of their duties, are charged with or responsible for

the protection of the health, safety and welfare of the people of the

state.

License required. It shall be unlawful for any person to

operate a disposal plant or transportation service unless licensed as

provided in this article.

Application. Application for a license to operate a disposal

plant or transportation service shall be made upon a form prescribed by

the commissioner. The applicant shall satisfy the commissioner of his or

her character and that he or she has adequate physical facilities for

the operation of a disposal plant or transportation service. If so

satisfied, the commissioner shall issue to the applicant a

non-transferable license which will expire on the thirtieth day of

September of the next even numbered year following its issuance.

Application for renewal of such license for a period of two years shall

be made biennially upon a form prescribed by the commissioner and

submitted no later than thirty days prior to the expiration of the

existing license.

Granting, suspending or revoking licenses. The commissioner

may decline to grant a license or may suspend or revoke a license

already granted, after written notice to the applicant or licensee and

an opportunity to be heard, when (1) any statement in the application or

upon which it was issued is or was false or misleading, (2) the

applicant or licensee does not have adequate physical facilities for the

operation of a disposal plant or transportation service, (3) facilities

are not maintained in a manner and as required by rules and regulations

duly promulgated by the commissioner, (4) applicant, an officer,

director, partner, or holder of ten per centum or more of the voting

stock of an applicant has been convicted of a felony by a court of the

United States or any state or territory thereof, without subsequent

pardon by the governor or other appropriate authority of the state or

jurisdiction in which such conviction occurred, or the receipt of a

certificate of relief from disabilities or a certificate of good conduct

pursuant to article twenty-three of the correction law, (5) when

applicant or licensee is a partnership or corporation, any partner,

officer, director, holder or owner of ten percent or more of the stock,

has previously been responsible, in whole or in part, for any act on

account of which a license may be denied, suspended or revoked pursuant

to the provisions of this article, or (6) the applicant or licensee has

failed to comply with any of the provisions of this chapter or rules or

regulations promulgated pursuant thereto.

Review. The action of the commissioner in refusing to grant

a license, or in suspending or revoking a license may be reviewed in the

manner provided by article seventy-eight of the civil practice law and

rules, and the decision of the commissioner shall be final unless within

thirty days from this date of service thereof on the applicant or

licensee a proceeding is instituted to review such action.

Rules and regulations. The commissioner is hereby

authorized, after public hearing, to adopt and promulgate such rules and

regulations to supplement and give full effect to the provision of this

article as he may deem necessary.

Violations; remedies. The commissioner may institute such

action at law or in equity as may appear necessary to enforce compliance

with any provisions of this article or of any rules and regulations

promulgated thereunder, and in addition to any other remedy under

article three of this chapter or otherwise, apply for relief by

injunction if necessary to protect the public interest without being

compelled to allege or prove that an adequate remedy at law does not

exist. Such application may be made to the supreme court in any district

or county as provided in the civil practice law and rules, or to the

supreme court in the third judicial district.

Labeling. All products except hides, tallow, meat meal or

bone meal, leaving a disposal plant shall be packed in containers

approved by the commissioner, and the containers shall be clearly marked

or stamped with the legend "unfit for human consumption" in such manner

as prescribed by the commissioner.

Access to premises; records. The commissioner may inspect

as often as he deems necessary, each disposal plant or vehicle licensed

under the provisions of this article. For the purpose of making such

inspection, the commissioner and his authorized agents shall have free

access to all disposal plants licensed hereunder and to all premises

where vehicles used in a transportation service are located. Licensees

shall maintain such records as the commissioner may require pertaining

to the origin, movement, storage, distribution or other disposition of

inedible meat and such records shall be open to inspection by the

commissioner or his authorized agents at any time during normal working

hours.

Criminal slaughter, processing or possession of inedible

meat. A person is guilty of criminal slaughter, processing or possession

of inedible meat when he knowingly and unlawfully (a) slaughters, for

the purpose of human consumption, any animal from which such meat would

be derived, (b) adds, mixes or otherwise combines any such meat with

food intended for human consumption, or bones, cuts, grinds or otherwise

processes such meat for the purpose of human consumption, or (c)

possesses such meat with intent to sell the meat for human consumption.

Criminal slaughter, processing or possession of an inedible meat is a

class E felony.

Criminal sale of inedible meat. A person is guilty of

criminal sale of inedible meat when he knowingly and unlawfully sells

such meat for the purpose of human consumption. Criminal sale of

inedible meat is a class E felony.

Criminal transporting of inedible meat. A person is guilty

of criminal transporting of inedible meat when he knowingly and

unlawfully transports such meat for human consumption or when he

knowingly and unlawfully transports inedible meat which is not marked or

stamped with the legend "unfit for human consumption", as required by

the commissioner. Criminal transporting of inedible meat is a class E

felony.

Unlawful decharacterization and labeling of inedible meat.

A person is guilty of unlawful decharacterization and labeling of

inedible meat when he knowingly and unlawfully fails to decharacterize

and label such meat in a manner prescribed by the commissioner. Unlawful

decharacterization and labeling of inedible meat is a class A

misdemeanor.

Definitions. As used in this article, unless otherwise

expressly stated, or unless the content or subject matter otherwise

requires:

1. "Person" means any person, firm, corporation, or association.

2. "Adulterated" means the same as set forth in section two hundred of

this chapter.

3. "Poultry" means any domesticated bird, whether live or dead.

4. "Poultry product" means any poultry carcass, or part thereof; or

any product which is made wholly or in part from any poultry carcass or

part thereof, excepting products which contain poultry ingredients only

in a relative small portion or historically have not been considered by

consumers as products of the poultry food industry, and which are

exempted by the commissioner from definition as a poultry product under

such conditions as the commissioner may prescribe to assure that the

poultry ingredients in such products are not adulterated and that such

products are not represented as poultry products.

5. "Federal inspection" means the poultry and poultry products

inspection maintained by the United States department of agriculture.

Inspection legend required. Except as exempted by the

provisions of the Federal Poultry Products Inspection Act, no poultry or

poultry product for human consumption, shall be sold, exposed for sale,

exchanged or transported within the state unless the same shall bear an

official inspection mark affixed pursuant to a federal inspection.

Mishandling and improper transportation of poultry

products. (1) No person, firm, association, partnership, or corporation

engaged in carrying or transporting poultry products shall transport

such poultry products except in an enclosed vehicle in such a manner as

to assure delivery of the aforesaid products so that frozen products

remain frozen and such other products do not rise above forty degrees

Fahrenheit, provided, however, that this section shall not apply to (a)

household consumers; (b) retail dealers with respect to poultry products

sold directly to consumers in retail stores; (c) poultry products

derived from either the slaughter by any person of poultry of his own

raising, or the custom slaughter by another person of poultry delivered

by the owner thereof for such slaughter, when such poultry products are

used exclusively by such owner and members of his household and his

non-paying guests and employees. This section shall not apply to poultry

products which because of their method of manufacture, processing, and

packaging, require no special handling temperatures to prevent

adulteration or unwholesomeness including, but not limited to,

commercially sterile poultry products in hermetically sealed containers.

(2) The commissioner may promulgate rules and regulations to further

define standards for the transportation of poultry products to further

ensure that they are delivered in an unadulterated and wholesome

condition.

(3) A violation of the provisions of this section shall be a violation

as defined in subdivision three of section 10.00 of the penal law.

Uninspected poultry and poultry products. The commissioner

shall seize and destroy for food purposes any poultry or poultry product

subject to federal inspection that does not bear the official inspection

legend affixed pursuant to federal inspection.

Unlawful possession of official devices. It shall be

unlawful for any person:

1. To forge any official federal device or mark.

2. Knowingly to possess, without authority granted by the United

States department of agriculture, any official federal device or any

counterfeit, simulated, forged or improperly altered official federal

device, mark or label, or any carcass of any poultry, or part or product

thereof, bearing any counterfeit, simulated, forged or improperly

altered official federal mark.

3. Knowingly to represent that any article has been federally

inspected and passed, or exempted, when it has not been so inspected and

passed, or exempted.

Rules and regulations. The commissioner is hereby

authorized to enact, amend and repeal rules and regulations necessary to

carry out and give full force and effect to the provisions of this

article. This chapter and the regulations promulgated thereunder shall

be so interpreted and construed as to effectuate a general purpose to

enact state legislation uniform with and at least equal to the federal

wholesome poultry products act and all acts amendatory thereof and

supplementary thereto.

The commissioner is hereby authorized to adopt, insofar as

appropriate, the regulations from time to time promulgated under such

federal act or acts, and to change or amend the regulations promulgated

under this chapter so as to conform, insofar as appropriate, to those

promulgated under the federal act or acts.

The commissioner shall hold a public hearing upon a proposal to

promulgate any new or amended regulations under this article, except in

the case of a proposal to adopt applicable regulations promulgated under

such federal act or acts.

Enforcement. The commissioner may institute such action at

law or in equity as may appear necessary to enforce compliance with any

provision of this article and the rules and regulations adopted and

promulgated hereunder and, in addition to any other remedy under article

three of this chapter or otherwise, may apply for relief by injunction

if necessary to protect the public interest without being compelled to

allege or prove that an adequate remedy at law does not exist. Such

application may be made to the supreme court in any county pursuant to

the civil practice law and rules or to the supreme court in any county

of the third judicial district.

Severability. If any provision of this article or the

application thereof to any person or circumstances is held invalid, such

invalidity shall not affect other provisions or applications of the

article which can be given effect without the invalid provision or

application, and to this end the provisions of this article are declared

to be severable.

Temporary emergency. The present losses to livestock in

certain areas of the state resulting from the disease in animals known

as rabies threaten to impair the agricultural economy of the communities

affected. This article is enacted in the exercise of the police power

and its purposes generally are to protect the public welfare. The

provisions of this article shall not apply to the city of New York.

Indemnification for rabies. Each county shall be liable for

damages resulting within the county to domestic animals from the disease

known as rabies and indemnification therefor shall be made in the manner

provided by this article. The term "domestic animals" as used in this

article shall mean domesticated sheep, horses, cattle, swine and goats.

Such indemnification shall not exceed the actual damage and shall in no

event exceed the sum of five hundred dollars for each animal in the case

of damage to horses or cattle, or one hundred fifty dollars for each

animal in the case of damage to swine, goats or sheep, provided,

however, that in the case of registered purebred bovine animals

indemnification may be made in an amount not to exceed seven hundred

dollars for each animal.

The board of supervisors of each county shall have power to cause to

be assessed, levied and collected in the same manner as other charges

against the county, such sums of money as shall be necessary to pay

indemnification on account of damages resulting from rabies as provided

in this article.

Damage appraisal and report. The owner of a domestic animal

which has died as a result of rabies shall immediately upon discovery

thereof notify any assessor of the city or town where the death occurred

of the fact thereof, and that he claims indemnity therefor, and requires

that the damages be determined. Such assessor, immediately upon

receiving such notification, shall inquire into the matter. If he deems

it necessary, he shall examine witnesses in relation thereto. No

indemnification shall be paid unless there shall be presented to the

assessor a report from a laboratory officially approved for rabies

examination by the state commissioner of health, showing the presence of

rabies in each animal for which indemnity is claimed. If the assessor is

satisfied that the animal or animals died of rabies, he shall determine

the amount of the damages resulting therefrom and shall thereupon make a

report in the form prescribed by the commissioner and shall state

therein the amount of damages. The report shall be signed by the

assessor, one copy of which shall be accompanied by an official

laboratory report showing the presence of rabies. Two copies of the

report shall be filed by the assessor in the office of the county

treasurer, and a third copy shall be delivered by the assessor to the

claimant. The county treasurer shall immediately approve or disapprove

the claim. If he shall approve the claim, he shall endorse a copy of the

report with a statement in accordance with the form prescribed by the

commissioner certifying that the amount of the damage so reported by the

assessor has been set aside by him for payment to the claimant from

funds made available by the county for such purpose, and he shall

immediately forward the copy of the report with such endorsement thereon

to the commissioner. Upon receipt of such report, the commissioner

shall examine the same and may investigate the same on his own part. The

commissioner shall either confirm the amount of the damage reported by

the assessor or modify it by such increase or decrease of the amount

thereof as may appear proper and adequate in view of the facts and, if

the facts so warrant, may disallow the same. The decision of the

commissioner shall be in writing, and a copy thereof shall be mailed to

the county treasurer and to the claimant.

Review by commissioner. If the claimant desires to appeal

the county treasurer's disapproval of his claim or if he is dissatisfied

with the amount of the damage as set forth in the assessor's report, he

may, within ten days after the receipt of the report, present to the

commissioner a request for a review. The county treasurer may, within

ten days after receiving the report of the assessor, if dissatisfied

with the damages stated in the report, present to the commissioner a

request for a review. Upon receipt of such request, from either the

claimant or the county treasurer, the commissioner shall cause an

investigation to be made of the facts surrounding the death of the

animal or animals described therein and the amount of damage incurred

thereby for which indemnification should be made in accordance with the

intent of this article. The claimant shall permit the commissioner or

his duly authorized representative to enter the premises where the

animal or animals for which indemnification is claimed were kept,

harbored or pastured, and shall furnish to the commissioner or his duly

authorized representative whatever information and proof may be

available to the claimant and deemed necessary by the commissioner or

his representative to complete the investigation. After the completion

of such investigation the commissioner shall make his decision in

writing as set forth in the preceding section.

Review by court. The decision of the commissioner may be

reviewed by the claimant or the county treasurer in the manner provided

by article seventy-eight of the civil practice law and rules, but such

review must be instituted within twenty days after receipt of the

commissioner's decision, otherwise the commissioner's decision shall be

final.

Payment to claimant by county. If the decision of the

commissioner increases or decreases the amount to be paid to the

claimant above or below the amount originally approved by the county

treasurer, the county treasurer shall, upon receipt of the

commissioner's decision, adjust the county's share in accordance

therewith. Upon receipt of the commissioner's decision and provided a

review thereof has not been instituted as herein provided, the county

treasurer shall forward to the claimant the county's check for the

amount of indemnity allowed. If the commissioner shall disallow the

claim, the county shall not be liable for the payment of any amount of

indemnity.

Partial reimbursement by state. Each county shall be

entitled to partial reimbursement by the state for payments by the

county of indemnification on account of damages resulting from rabies as

provided in this article, to the extent of fifty per centum of the

amount of its approved expenditures for such indemnification. Not later

than the last day in each of the months of June, September, December and

March the county treasurer of each county which has made payments to

claimants during the three months' period ending on such days pursuant

to the provisions of this article shall make a report to the

commissioner of agriculture and markets of the amount of its

expenditures for payments to claimants under this article and apply for

state reimbursement to the extent of fifty per centum of its approved

expenditures therefor. Such report and application shall be in such form

and contain such information as may be required by such commissioner.

The commissioner shall thereupon promptly certify to the comptroller for

payment the amount of state reimbursement due the county thereon. The

amounts so certified by the commissioner of agriculture and markets,

after audit by and on the warrant of the comptroller, shall be paid to

the county treasurers of the respective counties to which such

reimbursement is due, from any moneys available by appropriation

therefor.

Enforcement of article. The commissioner shall supervise the

enforcement of this article. It shall be unlawful for any officer to

neglect or refuse to perform his duties under the provisions of this

article and such neglect or refusal shall be cause for his removal from

office.

Purpose. The purpose of this article is to provide for the

licensing and identification of dogs, the control and protection of the

dog population and the protection of persons, property, domestic animals

and deer from dog attack and damage.

Application. 1. This article shall apply to all areas of the

state except any city having a population of over two million.

2. In the event that any dog owned by a resident of any city having a

population of over two million or by a non-resident of this state is

harbored within this state outside of any such city, the licensing

municipality in which such animal is harbored may exempt such dog from

the identification and licensing provisions of this article for a period

of thirty days provided such dog is licensed pursuant to the provisions

of law of the area of residence.

3. This article shall not apply to any dog confined to the premises of

any public or private hospital devoted solely to the treatment of sick

animals, or confined for the purposes of research to the premises of any

college or other educational or research institution.

4. This article shall not apply to any dog confined to the premises of

any person, firm or corporation engaged in the business of breeding or

raising dogs for profit and licensed as a class A dealer under the

Federal Laboratory Animal Welfare Act.

5. Nothing contained in this article shall prevent a municipality from

adopting its own program for the control of dangerous dogs; provided,

however, that no such program shall be less stringent than this article,

and no such program shall regulate such dogs in a manner that is

specific as to breed. Notwithstanding the provisions of subdivision one

of this section, this subdivision and sections one hundred twenty-three,

one hundred twenty-three-a and one hundred twenty-three-b of this

article shall apply to all municipalities including cities of two

million or more.

6. Nothing contained in this article shall be construed to prohibit a

county from administering a dog licensing program for the municipalities

within its jurisdiction.

Definitions. As used in this article, unless otherwise

expressly stated or unless the context or subject matter requires

otherwise:

1. "Adoption" means the delivery to any natural person eighteen years

of age or older, for the limited purpose of harboring a pet, of any dog,

seized or surrendered, or any cat.

3. "Clerk" means the clerk of any county, town, city or village where

licenses are validated or issued pursuant to this article.

4. "Commissioner" means the state commissioner of agriculture and

markets.

5. "Dog" means any member of the species canis familiaris.

6. "Dog control officer" means any individual appointed by a

municipality to assist in the enforcement of this article or any

authorized officer, agent or employee of an incorporated humane society

or similar incorporated dog protective association under contract with a

municipality to assist in the enforcement of this article.

7. "Domestic animal" means any domesticated sheep, horse, cattle,

fallow deer, red deer, sika deer, whitetail deer which is raised under

license from the department of environmental conservation, llama, goat,

swine, fowl, duck, goose, swan, turkey, confined domestic hare or

rabbit, pheasant or other bird which is raised in confinement under

license from the state department of environmental conservation before

release from captivity, except that the varieties of fowl commonly used

for cock fights shall not be considered domestic animals for the

purposes of this article.

8. "Euthanize" means to bring about death by a humane method.

9. "Guide dog" means any dog that is trained to aid a person who is

blind and is actually used for such purpose, or any dog during the

period such dog is being trained or bred for such purpose.

10. "Harbor" means to provide food or shelter to any dog.

11. "Identification tag" means a tag issued by the licensing

municipality which sets forth an identification number, together with

the name of the municipality, the state of New York, contact

information, including telephone number, for the municipality and such

other information as the licensing municipality deems appropriate.

12. "Identified dog" means any dog carrying an identification tag as

provided in section one hundred eleven of this article.

13. "Municipality" means any county, town, city and village.

15. "Owner" means any person who harbors or keeps any dog.

16. "Owner of record" means the person in whose name any dog was last

licensed pursuant to this article, except that if any license is issued

on application of a person under eighteen years of age, the owner of

record shall be deemed to be the parent or guardian of such person. If

it cannot be determined in whose name any dog was last licensed or if

the owner of record has filed a statement pursuant to the provisions of

section one hundred twelve of this article, the owner shall be deemed to

be the owner of record of such dog, except that if the owner is under

eighteen years of age, the owner of record shall be deemed to be the

parent or guardian of such person.

17. "Person" means any individual, corporation, partnership,

association or other organized group of persons, municipality, or other

legal entity.

18. "Police work dog" means any dog owned or harbored by any state or

municipal police department or any state or federal law enforcement

agency, which has been trained to aid law enforcement officers and is

actually being used for police work purposes.

19. "Recognized registry association" means any registry association

that operates on a nationwide basis and issues numbered registration

certificates.

20. "War dog" means any dog which has been honorably discharged from

the United States armed services.

21. "Hearing dog" means any dog that is trained to aid a person who is

deaf or hard of hearing and is actually used for such purpose, or any

dog during the period such dog is being trained or bred for such

purpose.

22. "Service dog" means any dog that has been or is being individually

trained to do work or perform tasks for the benefit of a person with a

disability.

23. "Person with a disability" means any person with a disability as

that term is defined in subdivision twenty-one of section two hundred

ninety-two of the executive law.

24. (a) "Dangerous dog" means any dog which (i) without justification

attacks a person, companion animal as defined in subdivision five of

section three hundred fifty of this chapter, farm animal as defined in

subdivision four of section three hundred fifty of this chapter or

domestic animal as defined in subdivision seven of this section and

causes physical injury or death, or (ii) behaves in a manner which a

reasonable person would believe poses a serious and unjustified imminent

threat of serious physical injury or death to one or more persons,

companion animals, farm animals or domestic animals or (iii) without

justification attacks a service dog, guide dog or hearing dog and causes

physical injury or death.

(b) "Dangerous dog" does not include a police work dog, as defined in

subdivision eighteen of this section, which acts in the manner described

in this paragraph while such police work dog is being used to assist one

or more law enforcement officers in the performance of their official

duties.

25. "Working search dog" means any dog that is trained to aid in the

search for missing persons and is actually used for such purpose.

26. "Therapy dog" means any dog that is trained to aid the emotional

and physical health of patients in hospitals, nursing homes, retirement

homes and other settings and is actually used for such purpose, or any

dog during the period such dog is being trained or bred for such

purpose, and does not qualify under federal or state law or regulations

as a service dog.

27. "Detection dog" means any dog that is trained and is actually used

for such purposes or is undergoing training to be used for the purpose

of detecting controlled substances, explosives, ignitable liquids,

firearms, cadavers, or school or correctional facility contraband.

28. "Physical injury" means impairment of physical condition or

substantial pain.

29. "Serious physical injury" means physical injury which creates a

substantial risk of death, or which causes death or serious or

protracted disfigurement, protracted impairment of health or protracted

loss or impairment of the function of any bodily organ.

Licensing of dogs required; rabies vaccination required. 1. (a)

The owner of any dog reaching the age of four months shall immediately

make application for a dog license. No license shall be required for any

dog which is under the age of four months and which is not at large, or

that is residing in a pound or shelter maintained by or under contract

or agreement with the state or any county, city, town or village, duly

incorporated society for the prevention of cruelty to animals, duly

incorporated humane society or duly incorporated dog protective

association. Except as otherwise provided in this subdivision, a license

shall be issued or renewed for a period of at least one year, provided,

that no license shall be issued for a period expiring after the last day

of the eleventh month following the expiration date of the current

rabies certificate for the dog being licensed. All licenses shall expire

on the last day of the last month of the period for which they are

issued. In the event an applicant for a license presents, in lieu of a

rabies certificate, a statement certified by a licensed veterinarian, as

provided in subdivision two of this section, a license shall be issued

or renewed for a period of one year from the date of said statement. Any

municipality may establish a common renewal date for all such licenses.

A license issued by a municipality that has established a common renewal

date shall expire no later than the common renewal date prior to the

expiration date of the rabies certificate for the dog being licensed.

(b) Application for a dog license shall be made to the clerk of the

town, city, or county or, in the counties of Nassau and Westchester,

incorporated village in which the dog is harbored or to the village

clerk of those villages in the county of Rockland with a population of

fifteen thousand or more which have elected to accept applications

pursuant to the provisions of this paragraph or to the village clerk of

the village of Newark in the county of Wayne upon the election of the

village of Newark pursuant to the provisions of this paragraph.

Provided, however, that in the counties of Nassau and Westchester, the

board of trustees of any incorporated village may by resolution provide

that applications for licenses shall no longer be made to the village

clerk, but to the clerk of the town in which the village is situated.

Provided further, however, that in the county of Rockland, the board of

trustees of any incorporated village with a population of fifteen

thousand or more may by resolution provide that application for licenses

shall be made to the village clerk. Provided further, however, that in

the county of Wayne, the board of trustees of the village of Newark may

by resolution provide that application for licenses shall be made to the

village clerk. Provided further, however, that in the county of

Montgomery, the board of trustees of the village of St. Johnsville may

by resolution provide that application for licenses shall be made to the

village clerk. The governing body of any town or city or, in the

counties of Nassau and Westchester, incorporated village or in the

county of Rockland, those villages with a population of fifteen thousand

or more which have so elected to accept applications, in the county of

Wayne, the village of Newark if such village has so elected to accept

applications or, in the county of Montgomery, the village of St.

Johnsville if such village has so elected to accept applications may, on

resolution of such body, authorize that such application be made to one

or more named dog control officers of any such town, city or village.

The issuance of any license by any such officer shall be under the

control and supervision of the clerk. In the case of a seized dog being

redeemed or a dog being otherwise obtained from a county animal shelter

or pound, such application may be made to the county dog control officer

in charge of such facility. In the case of a dog being redeemed or a dog

being adopted from a shelter or pound established, maintained or

contracted for, pursuant to section one hundred fourteen of this

article, such application may be made to the manager of such facility,

provided such manager has been authorized by the municipality in which

the prospective owner resides to accept such application. Such

authorization shall be requested by the governing body of the pound or

shelter and the granting or denial of such authorization shall be in the

discretion of the municipality in which the prospective owner resides.

(c) The application shall state the sex, actual or approximate age,

breed, color, and municipal identification number of the dog, and other

identification marks, if any, and the name, address, telephone number,

county and town, city or village of residence of the owner. The

application shall include space where an owner may elect to make a

contribution in support of the pound or shelter managed by the

municipality where the owner resides or any organization which is

contracted by such municipality to provide animal shelter services. The

space for contribution shall be clearly marked and distinct with bold

lettering or on a separate page, to make clear it is a voluntary

contribution and not a part of the license fee. The application shall

list the organization in which the contribution will be sent and may

list suggested reasonable contribution amounts with an option for any

amount. Municipalities may also require additional information on such

application as deemed appropriate.

(d) The application shall be accompanied by the license fee prescribed

by section one hundred ten of this article, the contribution, if elected

by the owner, and a certificate of rabies vaccination or statement in

lieu thereof, as required by subdivision two of this section. In the

case of a spayed or neutered dog, every application shall also be

accompanied by a certificate signed by a licensed veterinarian or an

affidavit signed by the owner, showing that the dog has been spayed or

neutered, provided such certificate or affidavit shall not be required

if the same is already on file with the clerk or authorized dog control

officer. In lieu of the spay or neuter certificate an owner may present

a statement certified by a licensed veterinarian stating that the

veterinarian has examined the dog and found that because of old age or

other reason, the life of the dog would be endangered by spaying or

neutering. In such case, the license fee for the dog shall be the same

as for a spayed or neutered dog as set forth in subdivision one of

section one hundred ten of this article.

(e) Upon validation by the clerk, authorized dog control officer or

authorized pound or shelter manager, the application shall become a

license for the dog described therein.

(f) The clerk, authorized dog control officer or authorized pound or

shelter manager shall: (i) provide a copy of the license to the owner;

(ii) retain a record of the license that shall be made available upon

request to the commissioner for purposes of rabies and other animal

disease control efforts and actions. In addition, the authorized pound

or shelter manager shall send, within forty-eight hours of validation, a

copy of the license to the licensing municipality within which the dog

is to be harbored.

(g) No license shall be transferable. Upon the transfer of ownership

of any dog, the new owner shall immediately make application for a

license for such dog.

(h) Notwithstanding the provisions of any general, special or local

law, or any rule or regulation to the contrary, the clerk, authorized

dog control officer or authorized pound or shelter manager in

municipalities having a population of less than one hundred thousand

shall within five business days after the license has been validated,

send a copy of the validated license to the licensing municipality in

which the dog is to be harbored.

2. The clerk, authorized dog control officer or authorized pound or

shelter manager, at the time of issuing any license pursuant to this

article, shall require the applicant to present a statement certified by

a licensed veterinarian showing that the dog or dogs have been

vaccinated to prevent rabies or, in lieu thereof, a statement certified

by a licensed veterinarian stating that because of old age or another

reason, the life of the dog or dogs would be endangered by the

administration of vaccine. The clerk, authorized dog control officer or

authorized pound or shelter manager shall make or cause to be made from

such statement a record of such information and shall file such record

with a copy of the license. Such records shall be made available to the

commissioner upon request for rabies and other animal disease control

efforts.

3. Municipalities may provide for the establishment and issuance of

purebred licenses and, in the event they do so, shall provide for the

assessment of a surcharge of at least three dollars for the purposes of

carrying out animal population control efforts as provided in section

one hundred seventeen-a of this article. Municipalities which issue

purebred licenses shall remit such surcharge collected to the

commissioner.

4. Municipalities shall deposit all monies collected from voluntary

contributions pursuant to paragraph (c) of subdivision one of this

section into a dedicated fund. The proceeds of such fund shall be

properly accounted for and be given to the organization listed on the

application annually. In no event shall the funds derived from voluntary

contributions replace any existing funding commitments to such

organizations.

License fees. 1. The license fee for dog licenses issued

pursuant to subdivision one of section one hundred nine of this article

shall be determined by the municipality issuing the license, provided

that the total fee for an unspayed or unneutered dog shall be at least

five dollars more than the total fee for a spayed or neutered dog. All

revenue derived from such fees shall be the sole property of the

municipality setting the same and shall be used only for controlling

dogs and enforcing this article and any rule, regulation, or local law

or ordinance adopted pursuant thereto, including subsidizing the spaying

or neutering of dogs and any facility as authorized under section one

hundred sixteen of this article used therefor, and subsidizing public

humane education programs in responsible dog ownership.

2. Municipalities may exempt from their licensing fees any guide dog,

hearing dog, service dog, war dog, working search dog, detection dog,

police work dog or therapy dog. Each copy of any license for such dogs

shall be conspicuously marked "Guide Dog", "Hearing Dog", "Service Dog",

"Working Search Dog", "War Dog", "Detection Dog", "Police Work Dog", or

"Therapy Dog", as may be appropriate, by the clerk or authorized dog

control officer.

3. In addition to the fee charged pursuant to subdivision one of this

section, all municipalities issuing dog licenses pursuant to this

article are required to provide for the assessment of an additional

surcharge of at least one dollar for altered dogs and at least three

dollars for unaltered dogs for the purposes of carrying out animal

population control efforts as provided in section one hundred

seventeen-a of this article. Such surcharges shall be submitted by

municipalities to the commissioner.

4. In addition to the fee charged pursuant to subdivision one of this

section, any municipality issuing dog licenses pursuant to this article

is hereby authorized to provide for the assessment of additional

surcharges for the purpose of:

(a) recovering costs associated with enumeration conducted pursuant to

subdivision six of section one hundred thirteen of this article should a

dog be identified as unlicensed during such enumeration. Such additional

fee shall be the property of the licensing municipality and shall be

used to pay the expenses incurred by the municipality in conducting the

enumeration. In the event the additional fees collected exceed the

expenses incurred by the municipality in conducting an enumeration in

any year, such excess fees may be used by the municipality for enforcing

this article and for spaying or neutering animals; and

(b) offsetting costs associated with the provision and replacement of

identification tags pursuant to section one hundred eleven of this

article.

Identification of dogs. 1. Each dog licensed pursuant to

subdivision one of section one hundred nine of this article shall be

assigned, at the time the dog is first licensed, a municipal

identification number. Such identification number shall be carried by

the dog on an identification tag which shall be affixed to a collar on

the dog at all times, provided that a municipality may exempt dogs

participating in a dog show during such participation.

2. No tag carrying an identification number shall be affixed to the

collar of any dog other than the one to which that number has been

assigned.

3. A municipality offering a purebred license may provide a licensee,

at his or her expense, any number of tags imprinted with the same number

as the purebred license. One such tag shall be affixed to the collar of

each dog harbored pursuant to the purebred license at all times,

provided that municipalities may exempt dogs participating in a dog show

during such participation. Such a tag shall be affixed only to the

collar of a dog owned by the holder of the purebred license and harbored

on his premises.

4. A municipality offering a license for any guide dog, service dog,

hearing dog, therapy dog or detection dog may issue a special tag for

identifying such dog, provided that such tag shall be in addition to the

identification tag required by subdivision one of this section. The

municipality may prescribe the shape, size, color, and form of imprint

of the tag which shall be a different color and shape than the standard

identification tag. Upon application, the commissioner shall furnish

such tags without payment of a fee.

Microchipping standards. 1. The commissioner may adopt and

promulgate rules and regulations that may provide for: standardization

of technology used in microchips implanted in companion animals that are

dogs or cats; and/or microchip readers so that such readers used by

veterinarians, animal shelters, dog control officers, and animal control

officers are capable of reading any chip to identify the animals and/or

the owner of record; and/or the need for such veterinarians, animal

shelters, dog control officers, and animal control officers to possess

or have access to a microchip reader capable of reading any commercially

available microchip implanted in a cat or dog. Such rules and

regulations may also provide for the collection, sharing, and

dissemination of chip identification information by entities that

possess and manage such information solely to promote timely

notification of owners when pets are lost while maintaining privacy

protection of personal information and providing for disclosure to such

owners of the sharing of such information.

Change of ownership; lost or stolen dog. 1. In the event of a

change in the ownership of any dog which has been licensed pursuant to

this article or in the address of the owner of record of any such dog,

the owner of record shall, within ten days of such change, file with the

municipality in which the dog is licensed a written report of such

change. Such owner of record shall be liable for any violation of this

article until such filing is made or until the dog is licensed in the

name of the new owner.

2. If any dog which has been licensed pursuant to this article is lost

or stolen, the owner of record shall, within ten days of the discovery

of such loss or theft file with the municipality in which the dog is

licensed a written report of such loss or theft. In the case of a loss

or theft, the owner of record of any such dog shall not be liable for

any violation of this article committed after such report is filed.

3. In the case of a dog's death, the owner of record shall so notify

the municipality in which the dog is licensed either prior to renewal of

licensure or upon the time of such renewal as set forth by the

municipality in which the the dog is licensed.

Dog control officers. 1. Each town and city, and each village

in which licenses are issued, shall appoint, and any other village and

any county may appoint, one or more dog control officers for the purpose

of assisting, within the appointing municipality, with the control of

dogs and the enforcement of this article.

2. In lieu of or in addition to the appointment of a dog control

officer or officers, any town or city, or any village in which licenses

are issued shall, and any other village and any county may, contract for

dog control officer services with any other municipality or with any

incorporated humane society or similar incorporated dog protective

association, or shall appoint, jointly with one or more other

municipalities, one or more dog control officers having jurisdiction in

each of the cooperating municipalities.

3. Every dog control officer shall have the power to issue an

appearance ticket pursuant to section 150.20 of the criminal procedure

law, to serve a summons and to serve and execute any other order or

process in the execution of the provisions of this article. In addition,

any dog control officer or any peace officer, when acting pursuant to

his special duties, or police officer, who is authorized by a

municipality to assist in the enforcement of this article may serve any

process, including an appearance ticket, a uniform appearance ticket and

a uniform appearance ticket and simplified information, related to any

proceeding, whether criminal or civil in nature undertaken in accord

with the provisions of this article or any local law or ordinance

promulgated pursuant thereto.

4. Every dog control officer, peace officer, when acting pursuant to

his special duties or police officer shall promptly make and maintain a

complete record of any seizure and subsequent disposition of any dog.

Such record shall include, but not be limited to, a description of the

dog, the date and hour of seizure, the official identification number of

such dog, if any, the location where seized, the reason for seizure, and

the owner's name and address, if known.

5. Every dog control officer shall file and maintain such records for

not less than three years following the creation of such record, and

shall make such reports available to the commissioner upon request.

6. The governing body of any municipality in which licenses are

issued, may, either individually or in cooperation with other municipal

entities, require its dog control officer or animal control officer or

any other authorized agent to ascertain and list the names of all

persons in the municipality owning or harboring dogs, or in lieu

thereof, such municipality may contract to have the same done.

Pounds and shelters. 1. Each town and city, and each village in

which licenses are issued shall, and any other village and any county

may, establish and maintain a pound or shelter for dogs.

2. In lieu of or in addition to establishing and maintaining such

pound or shelter, any town or city, or any village in which licenses are

issued shall, and any other village and any county may, contract for

pound or shelter services with any other municipality or with any

incorporated humane society or similar incorporated dog protective

association, or with a public authority providing shelter services, or

shall establish and maintain, jointly or with one or more other

municipalities, a pound or shelter.

Funds expended by municipality for services. No municipality

shall be required to expend in any calendar year for dog control officer

and pound or shelter services undertaken pursuant to this article, an

amount of money greater than it receives during such year pursuant to

this article and any local law or ordinance enacted pursuant thereto.

Spaying and neutering facilities authorized. 1. Any

municipality may, by local law or ordinance, provide for the

establishment and operation of a facility to provide services for the

alteration of the reproductive capacity through spaying or neutering of

dogs and cats owned by the residents thereof.

2. Any animal which is presented at such facility for alteration must

be accompanied by a notarized authorization signed by the owner thereof

consenting to such alteration and agreeing to hold the municipality, its

agents, servants and employees harmless for any damages arising

therefrom or incidental thereto.

3. Any municipality enacting a local law or ordinance as authorized by

this section shall further provide for the regulation of such facility

with respect to the terms and conditions, including compensation, under

which any animal will be maintained while the animal remains in the

custody of the facility.

4. In no event shall any of the moneys or fees derived from, or

collected pursuant to, the provisions of this article except as provided

in subdivision three of section one hundred ten of this article and

section one hundred seventeen-a of this article be used to subsidize the

spaying or neutering of cats.

Seizure of dogs; redemption periods; impoundment fees;

adoption. 1. Any dog control officer or peace officer, acting pursuant

to his special duties, or police officer in the employ of or under

contract to a municipality shall seize:

(a) any dog which is not identified and which is not on the owner's

premises;

(b) any dog which is not licensed, whether on or off the owner's

premises;

(c) any licensed dog which is not in the control of its owner or

custodian or not on the premises of the dog's owner or custodian, if

there is probable cause to believe the dog is dangerous; and

(d) any dog which poses an immediate threat to the public safety.

Promptly upon seizure the dog control officer shall commence a

proceeding as provided for in subdivision two of section one hundred

twenty-three of this article.

1-a. Notwithstanding the seizure requirements provided in subdivision

one of this section, dog control officer or peace officer, acting

pursuant to his or her special duties, or police officer in the employ

of or under contract to a municipality may, if there is no probable

cause to believe the dog is dangerous, return any dog with a current

license directly to the dog's owner or custodian of record at the

address provided on such dog's license.

2. Any dog control officer or peace officer, acting pursuant to his

special duties, or police officer in the employ of or under contract to

a municipality may seize any dog in violation of any local law or

ordinance relating to the control of dogs, adopted by any municipality

pursuant to the provisions of this article.

3. Each dog seized in accordance with the provisions of this article

shall be properly sheltered, fed and watered for the redemption period

as hereinafter provided.

4. Each dog which is not identified, whether or not licensed, shall be

held for a period of five days from the day seized during which period

the dog may be redeemed by its owner, provided that such owner produces

proof that the dog has been licensed and has been identified pursuant to

the provisions of this article and further provided that the owner pays

the following impoundment fees:

(a) not less than ten dollars for the first impoundment of any dog

owned by that person;

(b) not less than twenty dollars for the first twenty-four hours or

part thereof and three dollars for each additional twenty-four hours or

part thereof for the second impoundment, within one year of the first

impoundment, of any dog owned by that person; or

(c) not less than thirty dollars for the first twenty-four hours or

part thereof and three dollars for each additional twenty-four hours or

part thereof for the third and subsequent impoundments, within one year

of the first impoundment, of any dog owned by that person.

The impoundment fees set forth in paragraphs (a), (b) and (c) of this

subdivision notwithstanding, any municipality may set by local law or

ordinance such fees in any amount.

5. All impoundment fees shall be the property of the municipality to

which they are paid and shall be used only for controlling dogs and

enforcing this article and any rule, regulation, or local law or

ordinance adopted pursuant thereto, including subsidizing the spaying or

neutering of dogs and any facility as authorized under section one

hundred sixteen of this article used therefor, and subsidizing public

humane education programs in responsible dog ownership.

6. Promptly upon seizure of any identified dog, the owner of record of

such dog shall be notified personally or by certified mail, return

receipt requested, of the facts of seizure and the procedure for

redemption. If notification is personally given, such dog shall be held

for a period of seven days after day of notice, during which period the

dog may be redeemed by the owner. If such notification is made by mail,

such dog shall be held for a period of nine days from the date of

mailing, during which period the dog may be redeemed by the owner. In

either case, the owner may redeem such dog upon payment of the

impoundment fees prescribed by subdivision four of this section and by

producing proof that the dog has been licensed.

7. An owner shall forfeit title to any dog unredeemed at the

expiration of the appropriate redemption period, and the dog shall then

be made available for adoption or euthanized subject to subdivisions

six, eight and nine of this section and subject to the provisions of

section three hundred seventy-four of this chapter. Any municipality may

by local law or ordinance establish additional conditions for adoption

including the requirement that adopted dogs shall be spayed or neutered

before or after release from custody upon such terms and conditions as

the municipality may establish.

7-a. Any animal in the custody of a pound or shelter shall be made

available for adoption or euthanized subject to subdivisions six, eight

and nine of this section and subject to the provisions of section three

hundred seventy-four of this chapter after the time for redemption has

expired; provided, however, that such release may be made to another

such pound, duly incorporated society for the prevention of cruelty to

animals, duly incorporated humane society or duly incorporated animal

protective association for the sole purpose of placing such animal in an

adoptive home, when such action is reasonably believed to improve the

opportunity for adoption.

8. The redemption periods set forth above in this section

notwithstanding, any municipality may establish the duration of such

periods by local law or ordinance, provided that no such period shall be

less than three days, except that where notice to the owner is given by

mail, no such period shall be less than seven days.

9. Any dog, owned by a resident of any city having a population of

over two million or by a non-resident of this state, seized and

impounded pursuant to the provisions of this article, and whose owner

can be identified, shall be subject to subdivision six of this section.

If the dog is licensed pursuant to the provisions of law of the area of

the owner's residence, the licensing requirements of this article shall

not apply provided such dog is not harbored within this state outside

any city having a population of over two million for a period exceeding

thirty days.

10. The seizure of any dog shall not relieve any person from any

violation provided for by section one hundred eighteen of this article.

11. No liability in damages or otherwise shall be incurred on account

of the seizure, euthanization or adoption of any dog pursuant to the

provisions of this article.

Animal population control program. 1. The commissioner shall

submit a request for proposals from not-for-profit entities as described

herein for the purpose of administering a state animal population

control program. The entity chosen to administer such program shall

enter into a contract with the state for a term of five years, which may

be renewed subject to the approval of the commissioner. The purpose of

this program shall be to reduce the population of unwanted and stray

dogs and cats thereby reducing incidence of euthanasia and potential

threats to public health and safety posed by the large population of

these animals. This program shall seek to accomplish its purpose by

encouraging residents of New York state who are the owners of dogs and

cats to have them spayed or neutered by providing low-cost spaying and

neutering services to such owners meeting the criteria enumerated in

subdivision three of this section. For purposes of this section,

"low-cost" shall mean substantially less than the average cost in a

particular region of the state for spaying or neutering services,

including any and all ancillary changes for services, including but not

limited to, presurgical examinations, tests and immunizations, and other

services related to the spay or neuter procedure. All veterinary

services provided pursuant to this section must be performed by a

veterinarian licensed in this state.

2. Eligible not-for-profit entities shall consist of duly incorporated

societies for the prevention of cruelty to animals, duly incorporated

humane societies, duly incorporated animal protective associations, or

duly incorporated non-profit corporations that have received designation

as 501(c)(3) entities by the Internal Revenue Service and which entities

are operating as animal rescue organizations, animal adoption

organizations, spay/neuter clinics, or other entities whose core mission

predominantly includes statewide efforts to manage the companion animal

population in New York state. In awarding the contract, the commissioner

must consider the following criteria with respect to each applicant: its

experience in providing low-cost spay-neuter services, the scope of

services it provides, the length of time it has been operating, its

financial history, its demonstrated ability to work with outside

organizations and community groups, and the proposed cost of

administering and promoting the program. In choosing such entity, the

commissioner may establish other criteria for making his or her

selection in consultation with veterinarians, representatives from

animal advocacy and welfare organizations, and municipalities. The

selection of the administrative entity overseeing the state animal

population control fund must be completed no later than December

thirty-first, two thousand ten.

(a) The administrative entity chosen by the commissioner shall review

plans submitted for approval and funding of low-cost spay-neuter

programs and award grants for the animal population control fund for

implementation of such plans. In reviewing the plans, the entity shall

consider the following criteria: the method of providing low-cost

spay-neuter services, including an anticipated fee schedule for such

services, the size and need of the population served, the plan for

outreach and promotion of such services, experience in providing

low-cost spay-neuter services and cost-effectiveness of the overall

plan. In awarding grants, the entity shall use best efforts to provide

statewide distribution of funding.

(b) (i) Upon approving a plan submitted pursuant to this section, the

administrative entity shall award a grant for the creation and

implementation of such plan.

(ii) Upon approving a plan submitted for approval and funding of all

other spay-neuter programs, the administrative entity shall award grants

for the ongoing administration of low-cost spay-neuter services.

Payments against such grants shall be advanced quarterly. Any remaining

funds at the end of the grant period shall be remitted to the animal

population control fund.

(iii) Any grants made pursuant to this section may be discontinued if

it is found by the administrative entity that funds previously disbursed

were not used for their intended purpose or that services performed were

not provided according to the terms and conditions as the administrative

entity shall provide.

(c) An administrative entity selected pursuant to this section shall

use proceeds from the animal population control fund to pay for

reasonable expenses incurred in operating the low-cost spay-neuter

program, but is hereby authorized to solicit funds from other public and

private sources.

(d) Such administrative entity shall submit an annual report to the

governor, the temporary president of the senate, the speaker of the

assembly, the minority leader of the senate, the minority leader of the

assembly, and the commissioner. Such report shall include but not be

limited to the balance of the fund, annual expenditures, annual income,

the number of entities receiving funding and the amount received by each

entity, the total number and type of low-cost spay-neuter services

provided by each entity, the method of providing such services by each

entity, the expenditure made for promoting the fund and description of

marketing efforts, and recommendations regarding the implementation and

financial viability of the fund.

(e) The administrative entity shall perform such other tasks as may be

reasonable and necessary for the administration of such fund.

(f) If the administrative entity cannot perform its obligations

pursuant to its contract, or if it is determined by the commissioner

that it is not performing its obligations in a satisfactory manner, the

commissioner may cancel such contract and issue another request for

proposals from other entities to administer the program.

3. In order to be eligible to participate in the animal population

control program, and therefore, be entitled to the low-cost spay/neuter

services provided for herein, an owner of a dog or cat shall be a

resident of New York state and shall submit proof to the entity

providing such services as follows:

(a) in the form of an adoption agreement that their dog or cat was

adopted from a pound, shelter maintained by or under contract or

agreement with the state or any county, city, town, or village, duly

incorporated society for the prevention of cruelty to animals, duly

incorporated humane society or duly incorporated dog or cat protective

association; or

(b) proof of participation in at least one of the following:

(i) the food stamp program authorized pursuant to 7 U.S.C. 2011, et

seq.;

(ii) the supplemental security income for the aged, blind and disabled

program authorized pursuant to 42 U.S.C. 1381 et seq.;

(iii) the low income housing assistance program authorized pursuant to

42 U.S.C. 1437(f);

(iv) the Family Assistance program authorized pursuant to title ten of

article five of the social services law;

(v) the Safety Net Assistance program authorized pursuant to title

three of article five of the social services law;

(vi) the program of Medical Assistance authorized pursuant to title

eleven of article five of the social services law; or

(vii) other similar programs identified by the administrative entity

and approved by the commissioner; and

(c) in any city, town, village, or county which has enacted a local

law or ordinance requiring spay/neuter of all dogs and cats prior to

adoption from shelters, pounds, duly incorporated societies for the

prevention of cruelty to animals, humane societies and duly incorporated

dog or cat protective associations within such city, town, village or

county, eligibility for participation in the animal population control

program shall be determined based solely on the provisions of paragraph

(b) of this subdivision.

4. Notwithstanding the provisions of paragraph (a) of subdivision

three of this section, no resident, otherwise qualified pursuant to such

paragraph, shall be entitled to participate in the low cost spay/neuter

program implemented by this section if the animal to be spayed or

neutered:

(a) was imported or caused to be imported from outside the state;

(b) was adopted from an otherwise qualifying pound, shelter, duly

incorporated society for the prevention of cruelty to animals, duly

incorporated humane society or duly incorporated dog or cat protective

association which included the cost of a spaying or neutering procedure

in the cost of the adoption.

5. Any county is hereby authorized to establish and implement an

animal population control program within its jurisdiction. Any county

creating its own program may submit a plan to the administrative entity

for such program for approval and to receive funding from the animal

population control program. Such plan shall include but not be limited

to the criteria described in paragraph (a) of subdivision two of this

section.

6. Any county which has created its own program, which has been

approved by the administrative entity pursuant to this section, may

receive the funds collected by the municipalities within the county

pursuant to subdivision three of section one hundred nine of this

article and subdivision three of section one hundred ten of this article

for the sole purpose of administering such animal population control

program. Such county program shall be subject to this article and the

terms and conditions of the animal population control program, as may be

amended from time to time.

7. Any municipality within a county that does not have its own program

approved by the administrative entity pursuant to subdivision two of

this section must submit the funds collected pursuant to subdivision

three of section one hundred ten of this article to the animal

population control fund pursuant to section ninety-seven-xx of the state

finance law.

8. In the absence of a county animal population control program,

entities described below within such county may, pursuant to subdivision

two of this section, apply for funds from the animal population control

fund described in section ninety-seven-xx of the state finance law for

the sole purpose of providing low-cost spay and neuter services in their

service area. In the event that the service area of an entity

encompasses two or more counties, such entity may apply and receive

funding from the animal population control fund to serve such portion of

their service area that is not covered by an existing county animal

population control program. Such entities shall include pounds, duly

incorporated societies for the prevention of cruelty to animals, duly

incorporated humane societies, duly incorporated animal protective

associations and duly incorporated nonprofit corporations that have

received designation as a 501(c)(3) organization by the Internal Revenue

Service, which entities are operating as animal rescue or adoption

organizations. Any such entity must also be in good standing with the

charities bureau of the office of the attorney general and with the

secretary of state.

9. The administrative entity shall establish reporting requirements

for any entity awarded funding through the animal population control

program, and any other protocols necessary to ensure appropriate and

effective use of monies disbursed pursuant to this section.

Violations. 1. It shall be a violation, punishable as provided

in subdivision two of this section, for:

(a) any owner to fail to license any dog;

(b) any owner to fail to have any dog identified as required by this

article;

(c) any person to knowingly affix to any dog any false or improper

identification tag, special identification tag for identifying guide,

service, therapy or hearing dogs or purebred license tag;

(d) any owner or custodian of any dog to fail to confine, restrain or

present such dog for any lawful purpose pursuant to this article;

(e) any person to furnish any false or misleading information on any

form required to be filed with any municipality pursuant to the

provisions of this article or rules and regulations promulgated pursuant

thereto;

(f) the owner or custodian of any dog to fail to exercise due

diligence in handling his or her dog if the handling results in harm to

another dog that is a guide, hearing or service dog;

(g) any owner of a dog to fail to notify the municipality in which his

or her dog is licensed of any change of ownership or address as required

by section one hundred twelve of this article.

2. It shall be the duty of the dog control officer of any municipality

to bring an action against any person who has committed within such

municipality any violation set forth in subdivision one of this section.

Any municipality may elect either to prosecute such action as a

violation under the penal law or to commence an action to recover a

civil penalty.

A violation of this section shall be punishable, subject to such an

election, either:

(a) where prosecuted pursuant to the penal law, by a fine of not less

than twenty-five dollars, except that (i) where the person was found to

have violated this section or former article seven of this chapter

within the preceding five years, the fine may be not less than fifty

dollars, and (ii) where the person was found to have committed two or

more such violations within the preceding five years, it shall be

punishable by a fine of not less than one hundred dollars or

imprisonment for not more than fifteen days, or both; or

(b) where prosecuted as an action to recover a civil penalty, by a

civil penalty of not less than twenty-five dollars, except that (i) when

the person was found to have violated this section or this article

within the preceding five years, the civil penalty may be not less than

fifty dollars, and (ii) where the person was found to have committed two

or more such violations within the preceding five years, the civil

penalty may be not less than one hundred dollars.

3. A defendant charged with a violation of any provision of this

article or any local law or ordinance promulgated pursuant thereto may

plead guilty to the charge in open court. He or she may also submit to

the magistrate having jurisdiction, in person, by duly authorized agent,

or by registered mail, a statement (a) that he or she waives arraignment

in open court and the aid of counsel, (b) that he or she pleads guilty

to the offense charged, (c) that he or she elects and requests that the

charge be disposed of and the fine or penalty fixed by the court, (d) of

any explanation that he or she desires to make concerning the offense

charged, and (e) that he or she makes all statements under penalty of

perjury. Thereupon the magistrate may proceed as though the defendant

had been convicted upon a plea of guilty in open court, provided

however, that any imposition of fine or penalty hereunder shall be

deemed tentative until such fine or penalty shall have been paid and

discharged in full. If upon receipt of the aforesaid statement the

magistrate shall deny the same, he or she shall thereupon notify the

defendant of this fact, and that he or she is required to appear before

the said magistrate at a stated time and place to answer the charge

which shall thereafter be disposed of pursuant to the applicable

provisions of law.

4. Any person who intentionally refuses, withholds, or denies a

person, because he or she is accompanied by an on-duty police work dog,

working search, war, or detection dog as defined in section one hundred

eight of this article, any accommodations, facilities, or privileges

thereof shall be subject to a civil penalty of up to two hundred dollars

for the first violation and up to four hundred dollars for each

subsequent violation.

5. Any person who for the purpose of participating in the animal

population control program shall falsify proof of adoption from a pound,

shelter, duly incorporated society for the prevention of cruelty to

animals, duly incorporated humane society or duly incorporated dog or

cat protective association or who shall furnish any licensed

veterinarian of this state with inaccurate information concerning his or

her residency or the ownership of an animal or such person's authority

to submit an animal for a spaying or neutering procedure pursuant to

section one hundred seventeen-a of this article, and any veterinarian

who shall furnish false information concerning animal sterilization fees

shall be guilty of a violation punishable by a fine of not less than two

hundred fifty dollars where prosecuted pursuant to the penal law, or

where prosecuted as an action to recover a civil penalty of not more

than two hundred fifty dollars.

Disposition of fines. Notwithstanding any other provision of

law, all moneys collected as fines or penalties by any municipality as a

result of any prosecution for violations of the provisions of this

article or any local law or ordinance and all bail forfeitures by

persons charged with such violations shall be the property of the

municipality and shall be paid to the financial officer of such

municipality. Such moneys shall be used only for controlling dogs and

enforcing this article and any rule, regulation, or local law or

ordinance adopted pursuant thereto, including subsidizing the spaying or

neutering of dogs and any facility as authorized under section one

hundred sixteen of this article used therefor, and subsidizing public

humane education programs in responsible dog ownership.

Protection of deer. 1. Whenever the governing body of any

municipality shall determine that the deer population in the

municipality or part thereof is suffering severe depredation due to dogs

attacking, chasing or worrying deer, such governing body may by order

require that all dogs in such municipality or part thereof shall be

securely confined during the period of time designated in the order or,

if no time is designated, until the order is revoked.

2. Notice of such order shall be given by publication in a newspaper

or newspapers of general circulation in said municipality which shall be

designated by such governing body and by filing a copy of the order in

the office of each clerk in the area affected by such order. Such order

shall be in full force and effect at the expiration of twenty-four hours

following publication of such notice.

3. If any dog is not confined as required by such order, any dog

control officer, peace officer, acting pursuant to his special duties,

or police officer shall seize such dog. Any dog so seized shall be

subject to the provisions of section one hundred eighteen of this

article. A dog shall not be deemed to be in violation of such order if

accompanied by and under the full control of the owner.

4. If any dog, which is not confined as required by such order, shall

attack, chase or worry any deer, any dog control officer, peace officer,

acting pursuant to his special duties, or police officer upon witnessing

the same, shall destroy, or seize and destroy, such dog, and no

liability in damages or otherwise shall be incurred on account of such

destruction.

5. If any dog shall kill or cripple any deer, the owner shall be

subject to a civil penalty in the amount of one hundred dollars for the

first deer killed or crippled by the dog or by the pack of dogs, if any,

of which the dog was a member, and in the amount of one hundred fifty

dollars for each additional deer killed or crippled, to be recovered in

an action brought by the commissioner of environmental conservation on

behalf of the people of the state of New York.

6. This section and any order issued pursuant thereto shall not apply

to dogs in special dog training areas or shooting preserves enclosed and

licensed pursuant to the provisions of the environmental conservation

law, while such dogs are under the control of the owner or trainer.

Night quarantine. 1. The governing body of any municipality may

at any time by order require that all dogs in such municipality shall be

securely confined between sunset and one hour after sunrise during the

period of time designated in the order, or, if no time is so designated,

until the order is revoked.

2. Notice of such order shall be given by publication in a newspaper

or newspapers of general circulation in said municipality which shall be

designated by such governing body and by filing a copy of the order in

the office of each clerk in the area affected by such order.

3. Any dog control officer, peace officer, acting pursuant to his

special duties, or police officer shall destroy or seize any dog not

confined as required by such order, and no liability in damages or

otherwise shall be incurred on account of such destruction or seizure.

Any dog so seized shall be subject to the provisions of section one

hundred eighteen of this article. A dog shall not be deemed to be in

violation of such order if accompanied by and under the full control of

the owner.

Local laws or ordinances. 1. Any municipality may enact a local

law or ordinance upon the keeping or running at large of dogs and the

seizure thereof, provided no municipality shall vary, modify, enlarge or

restrict the provisions of this article relating to rabies vaccination

and euthanization.

2. Such local law or ordinance may:

(a) impose penalties for violation of such restrictions to be

recovered in a civil action in the name of such municipality;

(b) provide for enforcement by fine or imprisonment for any such

violation; or

(c) provide for the issuance pursuant to the criminal procedure law of

an appearance ticket, or in lieu thereof, a uniform appearance ticket,

or in lieu thereof, a uniform appearance ticket and simplified

information, as provided in section one hundred thirteen of this

article, by any dog control officer, peace officer, acting pursuant to

his special duties, or police officer, who is authorized by any

municipality to assist in the enforcement of this article for any such

violation.

Dangerous dogs. 1. Any person who witnesses an attack or

threatened attack, or in the case of a minor, an adult acting on behalf

of such minor, may make a complaint of an attack or threatened attack

upon a person, companion animal as defined in section three hundred

fifty of this chapter, farm animal as defined in such section three

hundred fifty, or a domestic animal as defined in subdivision seven of

section one hundred eight of this article to a dog control officer or

police officer of the appropriate municipality. Such officer shall

immediately inform the complainant of his or her right to commence a

proceeding as provided in subdivision two of this section and, if there

is reason to believe the dog is a dangerous dog, the officer shall

forthwith commence such proceeding himself or herself.

2. Any person who witnesses an attack or threatened attack, or in the

case of a minor, an adult acting on behalf of such minor, may, and any

dog control officer or police officer as provided in subdivision one of

this section shall, make a complaint under oath or affirmation to any

municipal judge or justice of such attack or threatened attack.

Thereupon, the judge or justice shall immediately determine if there is

probable cause to believe the dog is a dangerous dog and, if so, shall

issue an order to any dog control officer, peace officer, acting

pursuant to his or her special duties, or police officer directing such

officer to immediately seize such dog and hold the same pending judicial

determination as provided in this section. Whether or not the judge or

justice finds there is probable cause for such seizure, he or she shall,

within five days and upon written notice of not less than two days to

the owner of the dog, hold a hearing on the complaint. The petitioner

shall have the burden at such hearing to prove the dog is a "dangerous

dog" by clear and convincing evidence. If satisfied that the dog is a

dangerous dog, the judge or justice shall then order neutering or

spaying of the dog, microchipping of the dog and one or more of the

following as deemed appropriate under the circumstances and as deemed

necessary for the protection of the public:

(a) evaluation of the dog by a certified applied behaviorist, a board

certified veterinary behaviorist, or another recognized expert in the

field and completion of training or other treatment as deemed

appropriate by such expert. The owner of the dog shall be responsible

for all costs associated with evaluations and training ordered under

this section;

(b) secure, humane confinement of the dog for a period of time and in

a manner deemed appropriate by the court but in all instances in a

manner designed to: (1) prevent escape of the dog, (2) protect the

public from unauthorized contact with the dog, and (3) to protect the

dog from the elements pursuant to section three hundred fifty-three-b of

this chapter. Such confinement shall not include lengthy periods of

tying or chaining;

(c) restraint of the dog on a leash by an adult of at least twenty-one

years of age whenever the dog is on public premises;

(d) muzzling the dog whenever it is on public premises in a manner

that will prevent it from biting any person or animal, but that shall

not injure the dog or interfere with its vision or respiration; or

(e) maintenance of a liability insurance policy in an amount

determined by the court, but in no event in excess of one hundred

thousand dollars for personal injury or death resulting from an attack

by such dangerous dog.

3. Upon a finding that a dog is dangerous, the judge or justice may

order humane euthanasia or permanent confinement of the dog if one of

the following aggravating circumstances is established at the judicial

hearing held pursuant to subdivision two of this section:

(a) the dog, without justification, attacked a person causing serious

physical injury or death; or

(b) the dog has a known vicious propensity as evidenced by a previous

unjustified attack on a person, which caused serious physical injury or

death; or

(c) the dog, without justification, caused serious physical injury or

death to a companion animal, farm animal or domestic animal, and has, in

the past two years, caused unjustified physical injury or death to a

companion or farm animal as evidenced by a "dangerous dog" finding

pursuant to the provisions of this section.

An order of humane euthanasia shall not be carried out until expiration

of the thirty day period provided for in subdivision five of this

section for filing a notice of appeal, unless the owner of the dog has

indicated to the judge in writing, his or her intention to waive his or

her right to appeal. Upon filing of a notice of appeal, the order shall

be automatically stayed pending the outcome of the appeal.

4. A dog shall not be declared dangerous if the court determines the

conduct of the dog (a) was justified because the threat, injury or

damage was sustained by a person who at the time was committing a crime

or offense upon the owner or custodian of the dog or upon the property

of the owner or custodian of the dog; (b) was justified because the

injured, threatened or killed person was tormenting, abusing, assaulting

or physically threatening the dog or its offspring, or has in the past

tormented, abused, assaulted or physically threatened the dog or its

offspring; (c) was justified because the dog was responding to pain or

injury, or was protecting itself, its owner, custodian, or a member of

its household, its kennels or its offspring; or was justified because

the injured, threatened or killed companion animal, farm animal or

domestic animal was attacking or threatening to attack the dog or its

offspring. Testimony of a certified applied behaviorist, a board

certified veterinary behaviorist, or another recognized expert shall be

relevant to the court's determination as to whether the dog's behavior

was justified pursuant to the provisions of this subdivision.

5. (a) The owner of a dog found to be a "dangerous dog" pursuant to

this section may appeal such determination, and/or the court's order

concerning disposition of the dog to the court having jurisdiction to

hear civil appeals in the county where the "dangerous dog" finding was

made. The owner shall commence such appeal by filing a notice of appeal

with the appropriate court within thirty days of the final order

pursuant to this section. Court rules governing civil appeals in the

appropriate jurisdiction shall govern the appeal of a determination

under this section.

(b) Upon filing a notice of appeal from an order of humane euthanasia

pursuant to this section, such order shall be automatically stayed

pending final determination of any appeal. In all other circumstances,

the owner of the dog may make application to the court to issue a stay

of disposition pending determination of the appeal.

6. The owner of a dog who, through any act or omission, negligently

permits his or her dog to bite a person, service dog, guide dog or

hearing dog causing physical injury shall be subject to a civil penalty

not to exceed four hundred dollars in addition to any other applicable

penalties.

7. The owner of a dog who, through any act or omission, negligently

permits his or her dog to bite a person causing serious physical injury

shall be subject to a civil penalty not to exceed one thousand five

hundred dollars in addition to any other applicable penalties. Any such

penalty may be reduced by any amount which is paid as restitution by the

owner of the dog to the person or persons suffering serious physical

injury as compensation for unreimbursed medical expenses, lost earnings

and other damages resulting from such injury.

8. The owner of a dog who, through any act or omission, negligently

permits his or her dog, which had previously been determined to be

dangerous pursuant to this article, to bite a person causing serious

physical injury, shall be guilty of a misdemeanor punishable by a fine

of not more than three thousand dollars, or by a period of imprisonment

not to exceed ninety days, or by both such fine and imprisonment in

addition to any other applicable penalties. Any such fine may be reduced

by any amount which is paid as restitution by the owner of the dog to

the person or persons suffering serious physical injury as compensation

for unreimbursed medical expenses, lost earnings and other damages

resulting from such injury.

9. If any dog, which had previously been determined by a judge or

justice to be a dangerous dog, as defined in section one hundred eight

of this article, shall without justification kill or cause the death of

any person who is peaceably conducting himself or herself in any place

where he or she may lawfully be, regardless of whether such dog escapes

without fault of the owner, the owner shall be guilty of a class A

misdemeanor in addition to any other penalties.

10. The owner or lawful custodian of a dangerous dog shall, except in

the circumstances enumerated in subdivisions four and eleven of this

section, be strictly liable for medical costs resulting from injury

caused by such dog to a person, companion animal, farm animal or

domestic animal.

11. The owner shall not be liable pursuant to subdivision six, seven,

eight, nine or ten of this section if the dog was coming to the aid or

defense of a person during the commission or attempted commission of a

murder, robbery, burglary, arson, rape in the first degree as defined in

paragraph (a) or (b) of subdivision one, paragraph (a) or (b) of

subdivision two or paragraph (a) or (b) of subdivision three of section

130.35 of the penal law, rape in the first degree as defined in the

former subdivision one of section 130.35 of the penal law, a crime

formerly defined in subdivision one or two of section 130.50 of the

penal law or kidnapping within the dwelling or upon the real property of

the owner of the dog and the dog injured or killed the person committing

such criminal activity.

12. Nothing contained in this section shall limit or abrogate any

claim or cause of action any person who is injured by a dog with a

vicious disposition or a vicious propensity may have under common law or

by statute. The provisions of this section shall be in addition to such

common law and statutory remedies.

13. Nothing contained in this section shall restrict the rights and

powers derived from the provisions of title four of article twenty-one

of the public health law relating to rabies and any rule and regulation

adopted pursuant thereto.

14. Persons owning, possessing or harboring dangerous dogs shall

report the presence of such dangerous dogs pursuant to section two

hundred nine-cc of the general municipal law.

Exemption from civil liability. 1. If any dog shall, without

justification, attack a person, or behaves in a manner which a

reasonable person would believe poses a serious and unjustified imminent

threat of serious physical injury to a person, when such person is

peaceably conducting himself in a place where he may lawfully be, such

person or any other person witnessing the attack or threatened attack

may destroy such dog while so attacking, and no liability in damages or

otherwise shall be incurred on account of such destruction.

2. If any dog shall, without justification, attack a companion animal,

farm animal or domestic animal, or shall behave in a manner which a

reasonable person would believe poses a serious and unjustified imminent

threat of serious physical injury or death to a companion animal, farm

animal or domestic animal, where such animal is in any place where it

may lawfully be, the owner or caretaker of such animal, or any other

person witnessing the attack, may destroy such dog, and no liability in

damages or otherwise shall be incurred on account of such destruction.

Offenses against service animals and handlers. 1.

Definitions. For purposes of this section:

(a) "Service animal" shall mean any animal that has been partnered

with a person who has a disability and has been trained or is being

trained, by a qualified person, to aid or guide a person with a

disability.

(b) "Disability" shall have the same meaning as provided in section

two hundred ninety-two of the executive law.

(c) "Handler" shall mean a disabled person using a service animal.

(d) "Formal training program" or "certified trainer" shall mean an

institution, group or individual who has documentation and community

recognition as a provider of service animals.

2. Any person who owns an animal or possesses control of such animal

and who, through any act or omission, recklessly permits his or her

animal to interfere with the proper working of a service animal,

exposing the handler and service animal to danger or resulting in injury

or death of the service animal shall be subject to a civil penalty not

to exceed one thousand dollars in addition to any other applicable

penalties.

3. Any person who owns an animal or possesses control of such animal

and who, through any act or omission, recklessly permits his or her

animal to interfere with the proper working of a service animal,

exposing the handler and service animal to danger or resulting in injury

or death of the service animal, where the animal causing such injury has

previously been determined to be dangerous pursuant to this article,

shall be guilty of a violation punishable by a fine of not more than two

thousand dollars, or by a period of imprisonment not to exceed fifteen

days, or by both such fine and imprisonment in addition to any other

applicable penalties.

4. The handler of the service animal incapacitated, injured or killed

shall have the right to pursue any and all civil remedies available to

recover damages for medical and veterinary expenses, rehabilitation or

replacement of the service animal, and lost wages, transportation

expenses or other expenses directly related to the temporary or

permanent loss of the service animal.

Powers of commissioner. The commissioner is hereby authorized

to:

1. (a) promulgate, after public hearing, such rules and regulations as

are necessary to supplement and give full effect to the provisions of

sections one hundred thirteen, one hundred fourteen and one hundred

seventeen of this article; and

(b) exercise all other powers and functions as are necessary to carry

out the duties and purposes set forth in sections one hundred thirteen,

one hundred fourteen and one hundred seventeen of this article.

2. in cooperation with other relevant state agencies and stakeholders

identify, and develop as necessary, guidance for therapy dogs, their

handlers and facilities using such dogs, including, but not limited to,

assessment and training, risk management, animal welfare, and best

practices for such dogs and their dog-handlers. Such guidance shall be

made available on the department's website and provided to

municipalities that issue special tags for therapy dogs pursuant to

section one hundred eleven of this article.

Agricultural pursuit. Notwithstanding the provisions of any

law to the contrary, the breeding, raising and producing in captivity,

and the marketing, by the producer of mink and ranch fox, as live

animals, pelts or carcasses, shall be deemed an agricultural pursuit and

all persons engaged therein shall be deemed farmers for all purposes,

except that employees engaged in the aforementioned activities shall be

deemed employees for which coverage is required under the workmen's

compensation law, including article nine thereof. All mink and ranch fox

raised in captivity shall be deemed domestic animals subject to all laws

relative to possession, ownership and taxation applicable to domestic

animals, except for the purposes of disease control and indemnification

under articles five and seven of this chapter.

Functions of department. All the functions of the

conservation department which affect the breeding, raising, producing,

marketing, or any other phase of the production or distribution, of

domestically raised mink and ranch fox, or products thereof, are hereby

transferred to and vested in the department of agriculture and markets.

Definitions. As used in this article, unless otherwise

expressly stated, or unless the content or subject matter otherwise

requires:

1. "Commissioner" means the commissioner of agriculture and markets.

2. "Department" means the department of agriculture and markets.

3. "Person" means any person, firm, partnership, corporation or

association.

4. "Distribute" means to offer for sale, sell, exchange, or barter

commercial feed; or to supply, furnish, or otherwise provide commercial

feed to a contract feeder.

5. "Distributor" means any person who distributes.

6. "Feed" means all edible materials which are consumed by animals and

contribute energy or nutrients to the animal's diet.

7. "Commercial feed" means all materials except unmixed whole seeds or

physically altered entire unmixed seeds, when not adulterated within the

meaning of subdivision one of section one hundred thirty-two of this

article, which are distributed for use as feed or for mixing in feed,

and includes pet food and specialty pet food. Provided, however, the

commissioner by regulation may exempt from this definition, or from

specific provisions of this article, commodities such as hay, straw,

stover, silage, cobs, husks, hulls, and individual chemical compounds or

substances when such commodities, compounds or substances are not

inter-mixed or mixed with other materials, and are not adulterated

within the meaning of subdivision one of section one hundred thirty-two

of this article.

8. "Pet" means any domesticated animal normally maintained in or near

the household(s) of the owner(s) thereof.

9. "Pet food" means any commercial feed prepared and distributed for

consumption by pets.

10. "Specialty pet" means any domesticated pet normally maintained in

a cage or tank, such as, but not limited to, gerbils, hamsters,

canaries, psittacine birds, mynahs, finches, tropical fish, goldfish,

snakes and turtles.

11. "Specialty pet food" means any commercial feed prepared and

distributed for consumption by specialty pets.

12. "Contract feeder" means a person who, as an independent

contractor, feeds commercial feed to animals pursuant to a contract

whereby such commercial feed is supplied, furnished or otherwise

provided to such person and whereby such person's remuneration is

determined all or in part by feed consumption, mortality, profits, or

amount or quality of product.

13. "Registrant" means any person who has registered a commercial feed

manufacturing facility or brand of pet food or specialty pet food

pursuant to the provisions of section one hundred twenty-nine of this

article.

13-a. "Licensee" means any person who has licensed a commercial feed

manufacturing facility pursuant to section one hundred twenty-eight-a of

this article.

14. "Brand" means each commercial feed identified by and differing

from others either in name, trademark, descriptive designation or other

method or marking, composition or guaranteed analysis.

15. "Feed ingredient" means each of the constitutent materials making

up a commercial feed.

16. "Drug" means any article intended for use in the diagnosis, cure,

mitigation, treatment or prevention of disease in animals other than man

and articles other than feed intended to affect the structure or any

function of the animal body.

17. "Customer-formula feed" means commercial feed which consists of a

mixture of commercial feeds and/or feed ingredients, each batch of which

is manufactured according to the specific instructions of the final

purchaser, including feed mixed from components supplied by the

purchaser.

18. "Manufacture" means to grind, mix or blend, or further process a

commercial feed for distribution.

19. "Brand name" means any word, name, symbol or device, or any

combination thereof, identifying the commercial feed of a distributor or

registrant and distinguishing it from that of others.

20. "Product name" means the name of the commmercial feed which

identifies it as to kind, class, or specific use.

21. "Label" means a display of written, printed or graphic matter upon

or affixed to the container in which a commercial feed is distributed,

or on the invoice or delivery slip with which a commercial feed is

distributed.

22. "Labeling" means any and all labels and other written, printed or

graphic matter (a) upon a commercial feed or any of its containers or

wrappers or (b) accompanying such commercial feed.

23. "Official sample" means a sample of feed taken by the commissioner

or his authorized agent in accordance with the provisions of section one

hundred thirty-five-a of this article.

Licenses. 1. No person shall manufacture any commercial feed

in this state unless such person holds a license issued therefor by the

commissioner. Each application for a license shall be made on a form

supplied by the department and shall contain such information as may be

required by the department. A license issued on or before the thirtieth

of June will expire on the thirty-first of December of the year of its

issuance, and if issued between July first and December thirty-first,

will expire on the thirty-first day of December in the year following

its issuance. Renewal applications shall be made annually on a form

prescribed by the commissioner and submitted no later than thirty days

prior to the expiration of the existing license.

2. The commissioner may deny any application for a license or revoke

any license when granted, after written notice to the applicant and an

opportunity to be heard, when:

(a) any statement in the application or upon which it was issued is or

was false or misleading;

(b) facilities of the applicant are not maintained in a manner as

required by rules and regulations duly promulgated by the commissioner;

(c) the maintenance and operation of the establishment of the

applicant is such that the commercial feed produced therein is or may be

adulterated, misbranded, or not maintained in any manner as required by

this article;

(d) the applicant or licensee, or an officer, director, partner or

holder of ten per centum or more of the voting stock of the applicant or

licensee, has failed to comply with any of the provisions of this

article or rules and regulations promulgated pursuant thereto; or

(e) the applicant or licensee is a partnership or corporation and any

individual holding any position or interest or power of control therein

has previously been responsible in whole or in part for any act on

account of which an application for licensure may be denied or a license

revoked pursuant to the provisions of this article.

3. Inspection in accordance with section one hundred thirty-five-a of

this article, the results of which establish compliance with the

provisions of this article, shall precede issuance of a license or

renewal thereof under this section.

4. Upon validation by the commissioner, the application shall become

the license of the person.

5. The commissioner shall provide a copy of the license to the

licensee. The commissioner shall also retain a copy of the license.

6. No licensee shall publish or advertise the sale of any commercial

feed unless the publication or advertisement is accompanied by such

licensee's license number.

7. Commercial feed licenses shall be conspicuously displayed on the

premises so that they may be readily seen by officers and employees of

the department.

8. Notwithstanding the definition of commercial feed under subdivision

seven of section one hundred twenty-eight of this article, the

provisions of this section shall not apply to a person who conducts a

business of selling pet food and specialty pet food.

Registration. 1. No person shall distribute in this state any

commercial feed unless he or she is registered pursuant to the

provisions of this section. The biennial registration fee shall be one

hundred dollars. Application, upon a form prescribed by the

commissioner, shall be made on or before June first of every other year

for the registration period beginning July first following.

Notwithstanding the provisions of this subdivision, a person licensed in

accordance with section one hundred twenty-eight-a of this article shall

not be required to be registered pursuant to this section.

2. No person shall distribute in this state any pet food or specialty

pet food unless the brand thereof has been registered pursuant to the

provisions of this section. An application for such registration of a

pet food or specialty pet food shall be accompanied by a registration

fee of one hundred dollars for each brand to be distributed, said fee to

be paid annually thereafter. If any brand of a pet food or specialty pet

food changes in any way after such brand has been registered, a new

application therefor shall be made pursuant to the provisions of this

section.

3. Application for registration as set forth in subdivisions one and

two of this section shall be made to the commissioner on forms

prescribed by the commissioner. The applicant shall satisfy the

commissioner of his character and responsibility and shall set forth

such information as the commissioner shall require. Upon approval by the

commissioner the registration shall be issued to the applicant.

4. The commissioner may deny any application for registration as set

forth in subdivisions one and two of this section or revoke any

registration already granted, after written notice to the applicant or

registrant and an opportunity to be heard, when:

(a) Any statement in the application or upon which it was issued is or

was false or misleading;

(b) If facilities of the applicant or registrant are not maintained in

a manner as required by rules and regulations duly promulgated by the

commissioner;

(c) The applicant or registrant, or an officer, director, partner or

holder of ten per centum or more of the voting stock of the applicant or

registrant, has failed to comply with any of the provisions of this

chapter or rules and regulations promulgated pursuant thereto;

(d) The applicant or registrant, or an officer, director, partner or

holder of ten per centum or more of the voting stock of the applicant or

registrant, has been convicted of a felony by a court of the United

States or any state or territory thereof, without subsequent pardon by

the governor or other appropriate authority of the state or jurisdiction

in which such conviction occurred, or receipt of a certificate of relief

from disabilities or a certificate of good conduct pursuant to article

twenty-three of the correction law;

(e) The applicant or registrant is a partnership or corporation and

any individual holding any position or interest or power of control

therein has previously been responsible in whole or in part for any act

on account of which an application for registration may be denied or a

registration cancelled pursuant to the provisions of this article; or

(f) The maintenance and operation of the establishment of the

applicant or registrant is such that the commercial feed held therein is

or may be adulterated.

Review. The action of the commissioner in denying an

application for registration, or licensure, or in revoking a

registration or license already granted, shall be subject to review in

the manner provided by article seventy-eight of the civil practice law

and rules. The decision of the commissioner shall be final unless within

thirty days from the date of service thereof on the applicant or

registrant, a proceeding is instituted to review such action.

Labeling. 1. A commercial feed, except a customer-formula feed,

shall be accompanied by a label bearing the following information:

(a) The net weight.

(b) The product name and the brand name, if any, under which the

commercial feed is distributed.

(c) The guaranteed analysis stated in such terms as the commissioner

by regulation determines is required to advise the user of the

composition of the feed or to support claims made in the labeling. In

all cases the substances or elements must be determinable by laboratory

methods such as the methods published by the Association of Official

Analytical Chemists.

(d) The common or usual name of each ingredient used in the

manufacture of a commercial feed, provided, that the commissioner by

regulation may permit the use of a collective term for a group of

ingredients which perform a similar function, or he may exempt such

commercial feeds, or any group thereof, from this requirement of an

ingredient statement if he finds that such statement is not required in

the interest of consumers.

(e) The name and principal mailing address of the manufacturer or the

person responsible for distributing the commercial feed.

(f) Adequate directions for use for all commercial feeds containing

drugs and for the use of such other feeds as the commissioner may

require by regulation as necessary for their safe and effective use.

(g) Such warning or caution statements as the commissioner by

regulation determines are necessary for the safe and effective use of

the commercial feed.

2. A customer-formula feed shall be accompanied by a label, invoice,

delivery slip, or other shipping document, bearing the following

information:

(a) Name and address of the manufacturer.

(b) Name and address of the purchaser.

(c) Date of delivery.

(d) The product name and brand name, if any, and the net weight of

each registered commercial feed used in the mixture, and the net weight

of each other ingredient used.

(e) Adequate directions for use for all customer-formula feeds

containing drugs and for such other customer-formula feeds as the

commissioner may require by regulation as necessary for their safe and

effective use.

(f) Such warning or caution statements as the commissioner by

regulation determines are necessary for the safe and effective use of

the customer-formula feed.

Misbranding. A commercial feed shall be deemed to be misbranded

if:

1. Its labeling is false or misleading in any particular.

2. It is distributed under the name of another commercial feed.

3. It is not labeled as required in section one hundred thirty of this

article.

4. It purports to be or is represented as a commercial feed, or if it

purports to contain or is represented as containing a commercial feed

ingredient, unless such commercial feed or feed ingredient conforms to

the definition, if any, prescribed by regulation by the commissioner.

5. Any word, statement, or other information required by or under

authority of this article to appear on the label or labeling is not

prominently placed thereon with such conspicuousness (as compared with

other words, statements, designs, or devices in the labeling) and in

such terms as to render it likely to be read and understood by the

ordinary individual under customary conditions of purchase and use.

Adulteration. A commercial feed shall be deemed to be

adulterated if:

1. (a) It bears or contains any poisonous or deleterious substance

which may render it injurious to health; but in case the substance is

not an added substance, such commercial feed shall not be considered

adulterated under this subdivision if the quantity of such substance in

such commercial feed does not ordinarily render it injurious to health;

or

(b) It bears or contains any added poisonous, added deleterious, or

added nonnutritive substance which is unsafe within the meaning of any

relevant provisions of the Federal Food, Drug and Cosmetic Act, other

than one which is (i) a pesticide chemical in or on a raw agricultural

commodity; or (ii) a food additive; or

(c) It is, or it bears or contains any food additive which is unsafe

within the meaning of any relevant provisions of the Federal Food, Drug,

and Cosmetic Act; or