N.Y. Comp. Codes R. & Regs. tit. 1 § 20.27

Current through Register Vol. 46, No. 45, November 2, 2024

Section 20.27 - Suspension and cancellation of designation

The designation of a pool plant pursuant to section 20.24 of this Part or of a declared pool unit consisting of farms in the area specified in section 20.25(e) may be suspended or canceled under any of the following provisions:

(a) The designation shall be canceled effective on the first of the month following the filing with the market administrator, and on a form prescribed by him, of an application by the handler operating the plant; provided, that a plant whose designation is so canceled on the first of any of the months of August through November shall be a pool plant it it meets the provisions of section 20.28(e) of this Part, and shall not be a pool plant pursuant to any other provision of this order prior to December 1 following such cancellation; provided further, that such application for cancellation shall be accompanied by proof that the handler, if not a cooperative association qualified pursuant to section 20.77 has notified any qualified cooperative association which has any members who deliver milk to such plant, and has notified individually all producers delivering to such plant who are not members of such qualified cooperative association of his intention to make such application; provided further, that if 50 percent or more of the producers delivering milk at such plant deliver such milk for the account of a cooperative association which does not operate the plant but for which milk such association receives payment, an application must be made by such cooperative association as well as by the handler operating the plant; provided further, that if a handler applies for a replacement designation pursuant to section 20.24(b), the designation of the plant or plants replaced shall be canceled automatically at the time the replacement designation becomes effective.

(b) The designation of any plant which in any month is not approved by a health authority as a source of milk for the marketing area shall be automatically suspended at the beginning of the second month following the month that the handler receives notice that the plant does not have health approval as a source of milk for the marketing area unless the absence of health approval is a temporary condition covering a period of not more than 15 days; provided, that the designation of a plant approved by a health authority as a source of milk for the marketing area, even though such approval is restricted to prohibit shipment to the marketing area of milk for specified periods during which permission is given by such health authority for receiving unapproved milk or skim milk at the plant or for shipment of approved skim milk from such plant, shall not be suspended pursuant to this provision.

(c) The designation of a plant pursuant to section 20.24 of this Part shall be suspended at the beginning of the second month following any consecutive 12- month period in which the plant failed to receive any pool milk or at the beginning of the second month following a month in which there is a failure to maintain the facilities and equipment that constitute a plant pursuant to section 20.8(a) of this Part.

(d) The designation of any plant or unit shall be suspended, effective no sooner than 10 days nor later than 20 days after the date of mailing of notice, by registered letter, to the handler, whenever the market administrator, subject to the limitations set forth in subdivisions (h) and (j) of this section, finds on the basis of available information that the handler operating the plant or unit is not meeting the requirements set forth in section 20.26 of this Part; provided, that, if the handler operating the plant or unit is not a cooperative association qualified pursuant to section 20.77, the market administrator shall notify any qualified cooperative association which has any members who deliver milk to such plant or unit, and shall also notify individually all producers delivering to such plant or unit who are not members of such qualified cooperative association of such suspension of designation.

(e) In the case of suspension pursuant to this section of the designation of one or more plants or units for failure to meet the requirements of section 20.26(a) or (c) of this Part the handler operating such plant or unit may select, prior to the effective date of such suspension, one or more other pool plants or pool units consisting of farms in the area specified in section 20.25(e) for suspension in lieu thereof if, during the preceding month, the quantity of pool milk received from producers at such substituted plants or units was not less than the quantity of pool milk received from producers at the plants or units named for suspension. The handler may also select the order in which plant or unit designations are to be cancelled in the event of a later determination by the commissioner canceling the designation of some but not all of the plants or units suspended.

(f) Not later than 10 days after the effective date of suspension of designation pursuant to this section, the handler operating the plant or unit may apply to the commissioner for a review. If the handler fails to so apply for such review, the designation shall be canceled as of the effective date of the suspension. If the handler does so apply, the commissioner shall, after review, either determine that the requirements set forth in section 20.26 of this Part have been met and order the suspension revoked, or determine that such requirements have not been met and order the designation canceled as of the effective date of the suspension: provided, that, if the commissioner has made no determination within two months after the end of the month in which the suspension was made effective, but later orders the designation canceled, such cancellation shall be effective as of the first of the month following the date of such determination.

(g) Beginning with the effective date of a suspension pursuant to this section, and until the commissioner has either ordered the designation canceled or ordered the suspension revoked, the plant or unit shall be treated as a pool plant or pool unit: provided, that all payments into or out of the producer settlement fund (except such payments on the basis of operations during a month in which the plant meets the requirements of section 20.28 of this Part or the unit meets the requirements of section 20.25[g] ) shall be held in reserve by the market administrator until an order is issued by the commissioner, but no longer than two months after the end of the month in which the suspension was made effective.

(h) No pool plant or pool unit designation shall be suspended for failure to meet the requirements of section 20.26(a) of this Part except under the following conditions or pursuant to subdivision (1) of this section:

(1) A meeting has been held no sooner than three days after notice by the market administrator to all handlers operating pool plants designated pursuant to section 20.24 or pool units consisting of farms in the area specified in section 20.25(e) for consideration of the desirable utilization of milk received from producers during a period ending not later than the end of the second month after the month during which such meeting is held.

(2) There has been issued by the market administrator, following such meeting, and mailed to all handlers operating pool plants designated pursuant to section 20.24 of this Part or pool units consisting of farms in the area specified in section 20.25(e) the market administrator's determination of the desirable utilization of milk received from producers each month during all or a part of the period set forth in paragraph (1) of this subdivision. Such determination shall include a schedule setting forth, by months, the desired minimum percentage of pool milk received from producers to be utilized in specified classes. Such specified classes shall include Class I-A in the marketing area, and may include all or a part of other Class I-A and Class I-B.

(3) The market administrator finds on the basis of available information that the handler operating a plant or unit or the cooperative reporting a plant or unit is not utilizing milk received from producers in accordance with the minimum percentage set forth in the determination of the market administrator previously announced pursuant to paragraph (2) of this subdivision: provided, that the suspension of the designation of a plant or unit may be made effective during the months of November and December if the market administrator finds that the handler is utilizing any milk received from producers in classes other than those set forth in the determination of the market administrator announced pursuant to paragraph (2) of this subdivision.

(i) The cancellation of pool plant or pool unit designation for failure to meet the requirements of section 20.26(a) of this Part shall be subject to the following conditions:

(1) No pool plant or pool unit designation shall be canceled if the handler operating the plant or unit utilized the milk received by the handler from producers during the month in which the suspension is made effective in accordance with the minimum percentage set forth in the determination of the market administrator announced pursuant to paragraph (h)(2) or subdivision (1) of this section.

(2) No pool plant or pool unit designation shall be canceled if the handler operating the plant or unit utilized in the specified classes set forth in the determination of the market administrator announced pursuant to paragraph (h)(2) of this section a percentage of the total milk received by such handler from producers during the month in which the suspension is made effective which is not less than the percentage of the total pool milk reported by all handlers for such month to have been used in the specified classes.

(3) In the event that all milk received from producers at a plant or unit is reported to the market administrator by a cooperative association qualified pursuant to section 20.77 of this Part and such association pays the producer for such milk, the pool plant or pool unit designation shall not be canceled if a percentage of all milk reported by such cooperative association is utilized in accordance with the minimum percentage set forth in the determination of the market administrator announced pursuant to paragraph (h)(2) of this section, or in accordance with the percentage set forth in paragraph (2) of this subdivision.

(4) Cancellation of designations shall be limited to those plants or units necessary to result in a utilization of milk received at the remaining pool plants and pool units operated by the handler, or reported by the cooperative, as the case may be, in accordance with the minimum percentage set forth in subdivision (1) of this section, or in the determination of the market administrator announced pursuant to paragraph (h)(2) of this section.

(j) Loss of approval by health authorities of a plant as a source of milk for the marketing area may in itself constitute adequate reason for the market administrator to suspend the designation of the plant for failure to meet the requirements of section 20.26(b) of this Part only if the absence of such approval continues for more than 15 days.

(k) The designation shall be canceled effective on the first of the month following three consecutive months in in the absence of this designation milk received from dairy farmers and units at the plant would have been classified and priced under another order with a provision for marketwide equalization and if in each of such months the percentage of milk received from dairy farmers and units at the plant which is classified as Class I-A and disposed of in the marketing area defined in such other order is greater than the percentage of such milk so classified and disposed of in this marketing area.

(l) The designation of any pool plant pursuant to section 20.24 of this Part or any pool unit pursuant to section 20.25(e) of this Part shall be canceled unless five percent or more of the pool milk received from producers at such plant or by such unit during each of the months of December and January, and 10 percent during each of the months of September through November, is utilized as Class I-A milk unless the percentage has been revised pursuant to subdivision (h) of this section.

N.Y. Comp. Codes R. & Regs. Tit. 1 § 20.27