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STATE OF NEW YORK
________________________________________________________________________

8038

2011-2012 Regular Sessions

IN ASSEMBLY

May 27, 2011
___________

Introduced  by M. of A. SPANO -- read once and referred to the Committee
  on Agriculture

AN ACT to amend the state finance law and the  agriculture  and  markets
  law, in relation to enacting the "buy from the backyard act"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "buy from the backyard act".
  S 2. Subdivision 4 of section 165 of the state finance law, as amended
by chapter 137 of the laws of 2008, is amended to read as follows:
  4.  Special  provisions  for  purchase  of  available  New  York  food
products.
  a. Except as otherwise provided  in  this  subdivision,  when  letting
contracts  for the purchase of food products on behalf of facilities and
institutions of the state, solicitation specifications of the office  of
general  services  and  any  other  agency, department, office, board or
commission [may] SHALL require provisions  that  mandate  that  [all  or
some],  DURING  EACH  STATE FISCAL YEAR, NOT LESS THAN TWENTY PERCENT of
the required food products are grown, produced or harvested in New  York
state, or that any processing of such food products take place in facil-
ities located within New York state.
  b.  The  commissioner  of  agriculture and markets shall determine AND
CERTIFY, using uniform criteria,  those  food  products  for  which  the
requirements  of  this  subdivision are deemed MOST beneficial and shall
promulgate and forward to the appropriate agencies a list of  such  food
products,  and  shall  in  addition ascertain those periods of time each
year that those food products are available in sufficient quantities for
competitive purchasing and shall forward such information to  purchasing
agencies.  The commissioner of agriculture and markets shall update such
list  as  often  as  is  deemed  by him or her to be necessary.  FOR THE
PURPOSES OF THIS SUBDIVISION, "COMPETITIVE PURCHASING" OF NEW YORK  FOOD

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07264-01-1
A. 8038                             2

PRODUCTS  SHALL  BE  DEEMED  TO  BE  ESTABLISHED  WHEN  THE COST OF SUCH
PRODUCTS ARE NOT MORE THAN TEN PERCENT HIGHER THAN OTHER FOOD PRODUCTS.
  c.  (i)  Prior  to  issuing  a  solicitation  for  such food products,
purchasing agencies shall advise the  commissioner  of  agriculture  and
markets  of  the quantities of each food product on the list promulgated
by the commissioner of agriculture and markets to fulfill that  agency's
purchasing needs.
  (ii)  The  commissioner  of  agriculture  and markets will then make a
determination of whether those products required by the purchasing agen-
cy are available in sufficient  quantities  to  satisfy  the  purchasing
agency's requirements.
  (iii)  Upon  a  determination  by  the commissioner of agriculture and
markets that the food products required by  the  purchasing  agency  are
available  in  sufficient  quantities to fulfill the agency's purchasing
needs, the purchasing agency [may] SHALL include in its  solicitation  a
requirement  that all or some of those food products are grown, produced
or harvested in New York state, or that  any  processing  of  such  food
products take place in facilities located within New York state.
  (iv)  Upon  a  determination  by  the  commissioner of agriculture and
markets that such food products are not available in sufficient  quanti-
ties  to  fulfill  the  agency's purchasing needs, the purchasing agency
shall issue a solicitation that does not require that  all  or  some  of
those  food products are grown, produced or harvested in New York state,
or that any processing of such food products take  place  in  facilities
located  within  New  York  state.  In such cases, the purchasing agency
[may] SHALL include such requirements in the next contract for such food
products that is let if at such time those food products  are  available
in  sufficient quantities.  If at that time, those food products are not
available in sufficient  quantities,  the  requirement  shall  again  be
waived until such time as the products are available.
  (v)  In  the  event that the purchasing agency receives no offers that
meet the agency's requirement that all or some of the food products  are
grown,  produced  or harvested in New York state, or that any processing
of such food products take place in facilities located within  New  York
state,  it  may  waive  the  provisions  of this subdivision and award a
contract in accordance with other applicable statutes. [In addition,  if
the  commissioners  of agriculture and markets, economic development and
any such individual agency shall agree as to  the  deleterious  economic
impact  of  specifications  requiring  such purchases, such agencies may
waive the provisions of this subdivision for such purchases.]
  d. The commissioner, and the commissioner of agriculture and  markets,
may  issue  such  regulations  as they deem necessary and proper for the
implementation of this subdivision.
  e. Notwithstanding any other section of law, rule, regulation or stat-
ute, the department of agriculture and markets shall supply  information
required  by  paragraph  b  of this subdivision to the office of general
services and to all other appropriate agencies.
  f. (i) With each offer,  the  offerer  shall  certify  that  the  food
products  provided  pursuant  to that solicitation will be in conformity
with the provisions of the [percentage required to meet or  exceed  the]
requirements  in  the  solicitation specifying that all [or some] of the
food products be grown, produced, or harvested within New York state  or
that  any  processing  of  such  food  products take place in facilities
located within New York state.
  (ii) Any successful offerer who fails to comply with the provisions of
this subdivision, at the discretion of such  agency,  board,  office  or
A. 8038                             3

commission,  shall  forfeit  the right to bid on contracts let under the
provisions of this subdivision for a period of time to be determined  by
the commissioner and the commissioner of agriculture and markets.
  g.  The  commissioner and the commissioner of agriculture and markets,
shall advise and assist the chancellor of the state  university  of  New
York in [extending the benefits] THE IMPLEMENTATION of the provisions of
this  subdivision  [to]  BY  the  STATE university [and shall modify any
regulations or procedures heretofore established pursuant to this subdi-
vision, in order to facilitate such participation] OF NEW YORK.
  S 3. The agriculture and markets  law  is  amended  by  adding  a  new
section 5-a to read as follows:
  S  5-A.  REPORT  ON  PURCHASE  OF NEW YORK FOOD PRODUCTS. ON OR BEFORE
MARCH FIRST EACH YEAR, THE COMMISSIONER SHALL REPORT TO THE GOVERNOR AND
THE LEGISLATURE ON THE IMPLEMENTATION OF THE PROVISIONS  OF  SUBDIVISION
FOUR  OF  SECTION  ONE HUNDRED SIXTY-FIVE OF THE STATE FINANCE LAW. SUCH
REPORT SHALL INCLUDE THE LEVEL OF COMPLIANCE BY STATE AGENCIES WITH  THE
PROVISIONS OF SUCH SUBDIVISION, THE AVAILABLE NEW YORK FOOD PRODUCTS AND
THE  PRODUCERS AND/OR PROCESSORS THEREOF WHICH WERE PURCHASED AND RECOM-
MENDATIONS FOR THE IMPROVED IMPLEMENTATION OF SUCH SUBDIVISION.
  S 4. This act shall take effect on the first of April  next succeeding
the date on which it shall have become a law.