BEFORE THE UNITED STATES DEPARTMENT 

OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

IN RE: 

 Milk in the Appalachian, 

 Southeast, and Florida 

 Marketing Areas 

: 7 CFR Parts 1005, 1006, and 1007 

Docket No. 23-J-0019 

AMS-DA-23-0003 

: 

: 

: 

: 

POST-HEARING BRIEF FOR 

DAIRY COOPERATIVE MARKETING ASSOCIATION (“DCMA”) 

Marvin Beshore, Esquire 

I.D. No. 31979 

301 Market Street 

P.O. Box 109 

Lemoyne, PA 17043-0109 

Phone: (717) 761-4540 

Email: mbeshore@johnsonduffie.com 

Attorney for DCMA 

REC'D - USDA/OALJ/HCO

202

3 APR 19

3:09

P

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I. INTRODUCTION 

This hearing was called on an expedited basis at the request of the Dairy Marketing 

Cooperative Association, Inc., (“DCMA”) to address the urgent need for assistance in providing 

adequate supplies of fresh fluid milk to distributing plants in the southeastern United States. 

DCMA is a common marketing agency consisting of nine (9) Capper-Volstead cooperative 

members. (Exh. 15)1 The members of DCMA are all recognized by the Department as qualified 

cooperatives. Each of the nine (9) DCMA cooperatives markets milk as a handler in one or 

more of the southeastern marketing orders, Federal Orders 5, 6, and 7 (7 C.F.R. §§ 1005, 1006, 

and 1007) (collectively, the “southeastern orders.”) The DCMA members and the order(s) in 

which each is recognized as a handler are: 

DCMA Cooperative Order as Coop Handler2 

Appalachian Dairy Farmers Cooperative 5 

Cobblestone Milk Cooperative, Inc. 5, 7 

Cooperative Milk Producers Association 5 

Dairy Farmers of America, Inc. (DFA) 5, 6, 7 

Lanco Dairy Farms Co-op 5, 7 

Lone Star Milk Producers, LC 5, 7 

Maryland and Virginia Milk Producers Cooperative 

Association, Inc. 

5, 7 

Select Milk Producers, Inc. 5, 7 

Southeast Milk, Inc. 5, 6, 7 

DCMA’s cooperatives represent both producers and distributing plants in the Southeast. 

DCMA’s producer members, using October 2021 data, collectively market in excess of 80% of 

the producer milk in aggregate in the southeastern orders (Exh. 12, p. 2; Hollon, Tr. 94). Of the 

1 References to the transcript of the hearing will be cited as “[witness name] Tr. [page #]”. Exhibits admitted into 

the hearing record will be referenced as “Exh [number]”. 

2 See Market Administrator Exh. 7, page 10, No. 4 (Plant and handler lists) 

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DCMA member farms pooled on Orders 5, 6, and 7 in October 2021, 1,258 or 48% met the 

Regulatory Flexibility Act/NAICS definition of a small business dairy farm (Exh. 16). In 

addition, the DCMA cooperatives are responsible for the processing and distribution of a 

substantial percentage of the region’s Class I fluid milk products through cooperative-owned 

distributing plants: See 

https://www.ams.usda.gov/resources/marketing-order-statistics/distributing-and-supply-plants 

for plants owned by DFA; Maryland and Virginia also owns two distributing plants in these 

orders (Exh. 81, p.1; Smith, Tr. 381). Consequently, DCMA’s proposals are amendments to 

these southeastern orders advocated by the overwhelming majority of both the producers on the 

Orders and a substantial portion of the Orders’ distributing plants. 

The urgent need for the hearing and for expedited implementation of the proposals 

derives from the substantial and continuing erosion in the local milk supply for the growing 

population in the southeastern United States and the major increases in the transportation costs to 

supply milk to the region’s distributing plants since those costs were last reviewed and updated 

in a 2006 hearing. DCMA’s five (5) proposals address the costs of supplying milk to Orders 5, 

6, and 7 distributing plants both by updating the existing transportation credit balancing funds in 

Order 5 and 7 to facilitate the provision of milk from outside the marketing areas for the region’s 

needs and implementing a program of inside the marketing area distributing plant delivery 

credits to promote and support local, in-area milk production. 

It is extremely important in considering this hearing record to note that there was only 

nominal opposition3 from industry participants in the Southeast to amending the orders to 

3 The nominal opposition of the Milk Innovation Group is noted at part IV below. 

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provide transportation cost assistance for provision of milk to distributing plants, or for doing so 

on an expedited basis. 

This brief will: (1) initially review the disorderly marketing conditions in the orders, 

emphasizing the documented need for expedited consideration of the order amendments; (2) 

detail the proposed amendments put forth by DCMA and the support for them; and (3) review 

the inadequacies of the alternative proposals put forth by other parties. 

DCMA wishes to sincerely thank the Department for its convening of this hearing to 

consider our proposals. 

II. MARKETING DISORDER IN THE SOUTHEAST AND THE NEED FOR 

EXPEDITED RELIEF 

The hearing record establishes clearly and unequivocally the distressed marketing 

conditions in the Southeast which need to be addressed on an expedited basis. Those conditions 

are reflected in three (3) aspects: (1) the drastic losses in in-area production, particularly in 

contrast with the population trends; (2) the simultaneous reduction in distributing plant numbers 

and, therefore, marketing outlets for remaining in-area production; and (3) the increased costs of 

moving milk from location of production to location of processing. We will review the 

evidence regarding each of these issues in turn. 

A. The loss of producers and milk production in the Southeast 

There has been a stark decline in producer numbers and milk production in the Southeast 

since these orders were promulgated in the federal order reform process in 2000. In-area farms in 

Order 5 have declined from 2,813 in 2000 to 650 in 2022, a loss of 77% of the farms (Exh. 22). 

In Order 7, the decline from 2000 to 2022 was even greater, from 3;504 to 489, a loss of 86% of 

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the farms. In Order 6, dairy farms declined from 194 to 49, a loss of 75% of the farms from 

2000 to 2022 (Exh. 22). In just the five-year period from 2017 to 2021, total licensed farms in 

the 11 states of the Southeast fell from 2,250 to 1,531, a decline of 32% (Exh. 20). The 

testimony of several individual producers brings home the massive losses in sectors of the 

Southeast. Marilyn Calvin, proprietor of a small 200 cow dairy business in southern Missouri 

noted the 69% decline in licensed Missouri farms from 2006 to 2022 (Exh. 56; Calvin, Tr. 203). 

Glenn Tweed, also the owner of a small 200 cow dairy business in eastern Tennessee, testified to 

the drastic decline of dairy farms in his area with only 11 dairy farms left in the two counties he 

farms in and an 80 % decline in the last twenty years (Tweed, Tr. 212). 

Production losses in several states has been extreme. In the ten years from 2011 to 2021, 

production in Alabama declined 72.7%; in Arkansas, 58%; in Mississippi, 48%; 45.7% in 

Louisiana; and 43% in South Carolina. Georgia is the only state in the region which has had a 

meaningful increase in production of twenty-four (24%) percent over this time period (Exh. 25). 

The overall regional loss and the extreme loss in vast geographic portions of the region, coupled 

with the loss in distributing plants discussed below, have required massive changes in 

farm-to-plant milk movements, both in distance and direction. Compounding the supply 

demand situation is an increase in population in the southeastern states as noted in Exhibit 18 

(Population Data US Census Bureau) and Exhibit 19 (Milk Sales in 2020 were 16.5 Gallons per 

capita). In Exhibit 18, Census Bureau data for the South Region shows an increasing population 

trend and the Milk Revitalization Alliance (Exhibit 19) data shows milk consumption also 

increasing.4 

Some indication of this reversal in trend is also shown in the Order 6 Class I utilization data for 2022 and 2023, 

noted at Section III.A, infra. 

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B. The loss of distributing plants in the Southeast and the impact of that loss 

The reduction in the number of distributing plants in the region is detailed in Exhibit 7, 

pp. 12-15, prepared and presented by the Southeast Orders’ Market Administrator and 

summarized on Exhibit 33, submitted by DCMA. From 2000 to 2022, there was a 39% 

reduction in pool distributing plants from 26 to 16 in Order 5. In Order 7, for the same period, 

the reduction in pool distributing plants was 53%, from 32 to 15 and in Order 6, there was a loss 

of 33% of plants from 12 to 8 (Exh 33). 

C. The increase in transportation costs to service distributing plants in the 

Southeast 

The loss in farms and plants has impacted the number of miles necessary to procure 

supplemental milk for the market. Increased miles means increased costs. DCMA testimony 

pointed out that in data presented in the 2006 Transportation Credit Hearing, based on October 

2003 transactions, the average distance necessary to procure a load of supplemental milk for the 

market was 511 miles. For October 2020 based on a DCMA survey detailed in testimony, the 

average miles to procure a load was 774 miles or a 51% increase. (Exh. 12, pp. 4-5; Hollon Tr. 

98) 

The reduction in available plants for delivery of fresh fluid milk has also meant greater 

instances required to get production from farm to plant in the marketing area and many more 

milk movements which derive no benefit from the Order’s north to south Class I price grid. For 

instance, Jason Smith of DCMA member Maryland and Virginia Milk Producers Cooperative 

Association described the 51% and 67% increase in mileage to market for Maryland and Virginia 

farms when a pool distributing plant in Richmond, Virginia closed. (Exh. 80, p. 3; Tr. 384) 

Another example is eastern Tennessee. Twenty years ago, there were two (2) distributing plants 

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in eastern Tennessee at Kingsport and Bristol. Both have since closed (Exh. 7, pp. 12-13) and 

that milk, as Mr. Tweed testified, now goes to Asheville, North Carolina, a distance of 80 miles 

(Tweed, Tr. 212) about twice as far from his Limestone, Tennessee farm as Bristol or Kingsport. 

The two (2) plants closest to Matt Johnson’s farm in southern Georgia were a distance of 52 and 

59 miles. Both have closed. His milk now moves 292 miles to where it is needed. His 

hauling cost increased 80% from 2021 to 2023. (Exh. 11, p. 2.) This pattern exists throughout the 

Southeast. 

Perhaps even more significant than total miles moving is the necessity for milk to move 

‘against-the-grain’ in the Southeast from supply point to demand point. Exhibit 82, p. 7, and the 

testimony of Mike Herting of DCMA member, Dairy Farmers of America, clearly depicts these 

‘against-the-grain’ milk movements from supply locations in Georgia to pool distributing plant 

demand points in the Southeast. The significance of these Georgia milk movements is 

underscored since Georgia is the only state in the Southeast with any significant increase in 

production in recent years. Consequently, it is something of a reserve source of in-area milk to 

areas of demand in all directions, but particularly west and north. Those milk movements either 

lose order value (the destination having a lower Class I price) or are value neutral over a 

significant distance. 

Additional examples of these now-regular milk movements west and north to distributing 

plants were described by Calvin Covington of Southeast Milk, Inc. SMI’s Order 5 milk 

previously moved east or south in positive patterns with the Class I price grid. In January 2023, 

it all moved from the $4.00 zone to the $3.60 zone. In Order 6, 44% of SMI’s supply to an 

Order 6 distributing plant moves from a higher to lower zone; and 14% of SMI’s Florida 

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producer milk serving pool distributing plants moves from the $5.80 zone to the lower $5.40 

zone. The present order provisions in essence penalize these needed milk movements to Class I 

use. (Exh. 81, p. 4; Covington, Tr. p. 413). 

The unreimbursed transportation cost in these movements is a classic example of 

disorderly marketing since the Federal Order Class I price grid is intended to reflect lower prices 

at supply areas and higher prices at demand points. The loss of farms and plants in the 

Southeast has turned the region into a marketplace in which the Federal Order provisions are 

profoundly out-of-sync. The result is an extremely disorderly marketplace. 

Overlaying and compounding the market disruptions and disorder created by the loss of 

production and plants in the Southeast is the increase in the cost of moving milk since 2006 

when the current transportation balancing fund reimbursement rates were incorporated in the 

Order provisions. The base haul rate currently embedded in the Order 5 and 7 regulations is 

$1.91 per loaded mile (Exh. 17). DCMA took a survey of over-the-road haul rates in September 

and October of 2020. The survey involved 2,951 observations of hauls ranging from 272 to 

1,490 miles. The average cost was $3.67 per loaded mile at a time when the average diesel fuel 

cost was $2.26 (Exh. 12, p. 27). With Lower Atlantic and Gulf Coast diesel fuel costs averaging 

$4.478 in January 2023 (Exh. 39, p. 4), the cost per loaded mile for moving milk today is well 

over twice what it was in 2006. Mr. Smith reported the current range of costs per loaded milk to 

bring milk from the Northeast to the Order 5 or 7 market to be $4.90 to $5.25 (Exh. 80, p. 2). 

Mr. Herting testified that the cost to move milk from the west of Order 7 to demand points in the 

area ranged from $4.85 to $5.10 per loaded mile (Exh. 83A, p. 5). 

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Producers also testified to major recent increases in hauling costs for their farm 

production. Ms. Calvin reported a 41% increase from 2021 to 2023 (Exh. 56, p.2). Mr. Tweed 

testified to a 62% increase from 2021-2023 (Tweed, Tr. 214). Maryland and Virginia member, 

Rodney Purser experienced a recent 50% increase (Exh. 55, p.2). All of the testimony from 

DCMA cooperative marketing personnel involved in everyday movement of milk in the region 

substantiated that transportation costs have escalated beyond any relation to the Orders’ 

compensation rates to the point where actually getting milk to Southeast demand locations is in 

jeopardy. (See Smith Tr. 378-404; Covington Tr. 405-435; Herting Tr. 436-455; 461--490) 

The increased cost of hauling is not due only to the increase in diesel fuel costs. Mr. 

Hollon noted that costs such as “purchasing and maintaining equipment, labor, benefits, 

management, and overhead costs are constant in the [MRF reimbursement] formula.” (Exh. 12, 

p. 28; Hollon, Tr.168) Indeed, the increased base hauling rates cited above, nearly tripling 

from the $1.91 in 2006, embody increased costs in all categories of transport expense. Calvin 

Covington of SMI testified to some of the multiple elements of the increase in transportation 

costs as experienced by SMI, in addition to fuel costs. (Exh. 81, pp. 5-6) SMI’s milk hauler wage 

increased from $22.60 to $31.24 from 2018 to 2023, a 38% increase in 5 years. Quotes for new 

trucks (day cab) have increased 44% just since 2019. 6,200-gallon milk tanker quotes are up 

15% in the last two years. While these costs are exemplary, they are not exhaustive. Other 

expenses which have all increased since 2006 include: employee benefits, insurance premiums, 

tractor and tanker maintenance and repairs, taxes, permits and highway tolls. (Exh. 81, p. 5). 

Additional miles and increased cost per mile for moving milk in the southeastern markets 

demand regulatory relief as proposed in this hearing. 

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D. The need for expedited regulatory relief 

The marketing conditions documented in detail in this hearing record cry out for the most 

urgent regulatory relief. The producers who testified were unanimous and earnest in their 

appeals for expedited procedures to be used in adopting the proposals put forth in this hearing. 

Matt Johnson, President of the Board of Directors of DCMA, after providing details of the cost 

increases incurred and cost-price pressures experienced in his 1,400-cow dairy, made this appeal 

to the Secretary at the opening of the hearing: “I ask that you make these changes expediently... . 

Immediate implementation of these proposals will help to buffer some of the stubbornly high 

hauling costs and moderate some of the cash crunch I will be facing this year.” (Exh. 11, p.3; 

Johnson, Tr. 84) Mr. Tweed, a board member of Appalachian Dairy Farmers Cooperative, 

testified to the extreme financial pressures caused by milk hauling costs and the risks which it 

created in his area testified that “It [relief from this hearing] can’t come quick enough.” 

(Tweed, Tr. 217) Maryland and Virginia board member Rodney Purser testified: “I believe that 

expedited procedures would be appropriate, given the pressures that Southeast dairy farmers 

have from transportation that is contributing to a lower mailbox price, a lower take-home price 

for all of us.” (Purser, Tr. 196-97) Marilyn Calvin, a DFA member, also testified specifically 

with respect to prompt relief from this hearing: “I would say that with the decline of dairy farms 

and milk production in my area, it is of immediate importance.” (Calvin, Tr. 207) 

The need for and the basis for expedited relief was perhaps best summarized by Mr. 

Herting who, after detailing the challenges and costs of servicing the western portion of the 

Order 7 marketing area, concluded his testimony as follows: “Just as the supply of 

supplemental milk from outside the marketing areas is threatened if additional regulated funds 

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are not made available to encourage its movement, dairy farmers inside the marketing areas will 

cease to be willing to supply distant plants if their financial return for that needed service, a 

service of marketwide benefit, fails to compensate them fairly.”5 

DCMA’s request for expedited processing of this hearing (sometimes referred to as 

“emergency” procedures) is a request that the Secretary issue a proposed amended order, subject 

to producer approval, before soliciting comments on a recommended decision. This procedure 

is allowed pursuant to 7 C.F.R. § 900.12(d) which authorizes omission of a recommended 

decision where the Secretary finds “on the basis of the record that due and timely execution of 

his functions imperatively and unavoidably requires such omission.” The Secretary can utilize 

this procedure by adopting an interim order and soliciting comments on that order before making 

it final, as was done after the 2006 hearing on these identical issues. This uncontested record 

clearly supports following that same procedure. In summary: 

• The southeastern order marketing areas are deficit milk production regions which 

require supplemental supplies from increasingly distant sources. The regulations 

for Orders 5 and 7 have recognized this circumstance with Transportation Credit 

Balancing Funds (TBCFs) established in the mid-1990s. 

• The cost of over-the-road milk transport has nearly tripled since the rates of 

compensation in the TBCFs were last updated, leaving those regulations woefully 

deficient in funding to accomplish their intended purpose. 

5 Exh. 83A, p. 12; Herting/Sims Tr. 486. As the extensive colloquy on (and off) the hearing record documented, 

Exh 83 was originally prepared by Jeff Sims of Lone Star Milk Producers. Mr. Sims was unable to attend the 

hearing because of exposure to COVID. Therefore, the testimony in 83A was presented by Mike Herting of DFA 

who vouched for it on the basis of his personal knowledge and experience. 

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• The increased cost of milk hauling has severely burdened milk producers in the 

marketing areas, cooperative producers in particular, since those producers incur 

the cost of transportation for both the out-of-area supplemental supplies and the 

cost of delivering their own production to pool distributing plants. (Exh. 56, p. 2; 

Calvin Tr. 209; Purser Tr. 198 (“We pay to haul the milk that we make as well as 

the milk we don’t make.”); Tweed Tr. 220 (“The balancing cost from month to 

month is listed on our statement.”)) 

• Unless there is relief for these costs, the necessary supplies for Southeast order 

pool distributing plants are at risk. 

With the incontestable facts of the distressed marketing conditions in these southeastern 

orders and the need for urgent relief, we will now detail the DCMA proposals which we request 

be adopted. 

III. THE SECRETARY SHOULD UPDATE THE TRANSPORTATION CREDIT 

BALANCING FUND PROVISIONS IN ORDERS 5 AND 7 BY ADOPTING DCMA 

PROPOSALS 1 AND 2 

A. Overview of the DCMA proposals 

Since 1996, with an update in 2006, the deficit milk supply for the Southeast Orders has 

been partially addressed with order provisions which assist the importation of supplemental 

supplies from outside the region during the months of the year when the local supply is shortest. 

These provisions known as the Transportation Credit Balancing Fund (“TCBF”) in Orders 5 and 

7 have operated effectively within their limitations. But, not having been updated since 2006, 

the TCBF monetary reimbursements have become quite outdated and woefully insufficient given 

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the increases in the costs of moving milk which have occurred over the intervening nearly 17 

years. In the meantime, as we have seen, the supply-demand situation in the Southeast Orders 

has continued to degrade, with in-area production sharply falling on a regional basis and nearly 

disappearing in large swaths of the region. At the same time, fluid milk demand has declined 

less sharply and leveled out in some areas of the Southeast. In the Florida Order, Class I 

disposition increased from 2021 to 2022 and that trend has continued in 2023. (Exh. 81, p. 2; 

Exh. 7, p. 10, No. 6) 

Consequently, the marketing conditions in the Southeast in 2023 require both: (1) 

updated order provisions to address the need for more funds to support out-of-area supplemental 

milk supplies; and (2) new provisions to support the demand for milk to move in-area from 

points of supply to demand. DCMA’s proposals have been carefully designed to address both 

of these needs. Proposals 1 and 2 will update the TCBF provisions for Orders 5 and 7. 

Proposals 3, 4, and 5 propose new Distributing Plant Delivery Credits to support local, in-area 

production and its delivery from farm production points to distributing plant demand locations 

for Orders 5, 6, and 7. 

B. The TCBF provisions of Orders 5 and 7 should be amended as requested in 

DCMA proposals 1 and 2 

As noted, the TCBF provisions were first implemented in Orders 5 and 7 in 1996. In 2005 

the provisions were amended to update the cost reimbursement and add a fuel adjustment 

formula which automatically adjusts reimbursement for changes in diesel fuel costs. DCMA’s 

proposals 1 and 2 will update those provisions in several respects. The updating primarily 

involves conforming the monetary reimbursement formula, and the assessment rate which 

supports the cost reimbursements, to more current actual costs, thereby making it a meaningful 

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contribution to the costs of bringing supplemental supplies of milk to the region. In addition, 

refinements to the months of mandatory and discretionary payment and to the method of 

calculating reimbursable miles are proposed. 

The DCMA proposals to update the TCBF provisions were explained, supported, and 

recommended for adoption with detailed documentation and analysis by Elvin Hollon, an expert 

in agricultural economics and milk marketing (See Exh. 12 (statement); Exhs. 15-74 (supporting 

data)). His extensive testimony and supporting exhibits stand unchallenged in the record and 

provide more than the substantial evidence required for the Secretary to adopt the DCMA 

proposals as recommended. We will not burden the record by reiterating in detail in this brief 

what is undisputed, particularly the updating of the monetary reimbursement calculations. We 

will, however, review in summary the monetary factor updates and discuss the recommended 

changes in order language and the assessment rates. 

1. Update the mileage rate for the TCBFs to reflect more current costs 

Currently, Orders 5 and 7, in 7 C.F.R. § 1005,83 and 1007.83, respectively, direct the 

Market Administrator to compute an identical mileage rate for handler cost reimbursement from 

each order’s TCBF. The computation formula consists of five (5) factors in 1005.83(a)(1) -

(a)(5) and 1007.83(a)(1) - (a)(5). Part (a)(1) which provides the formula for determining the 

average current diesel fuel cost would not be changed. Our proposal would, however, update 

factors (2) through (5) to reflect current costs and operating facts, as follows: 

• In (a)(2), the base cost per gallon of diesel fuel, now $1.42 per gallon, would be increased 

to $2.26 per gallon representing the average cost for the period of September – October 

2020. Use of this time period makes sense because diesel fuel was relatively constant 

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during this period providing a useful date set for collecting hauling rates. (Exh. 12 p.24; 

Exh. 38; Hollon Tr. 159) The volatility of diesel fuel prices is a major factor in the 

overall cost of transportation and a key dynamic which requires regulatory support. The 

historical and projected continued volatility in these prices was described in detail by 

DCMA witness Sarah Vanadia, a Commodity Risk Management Analyst for DFA. (See 

Exh. 78; Vanadia Tr. 365- 378) 

• In (a)(3), the average miles per gallon (mpg) for over-the-road full milk tankers, now 5.5 

mpg, would be increased to 6.2 mpg to reflect increases in truck fuel efficiency. (Exh. 12, 

p. 25; Exh. 41; Hollon Tr. 161) 

• In (a)(4), the average cost per loaded mile, presently $1.91, would be increased to $3.67 

to reflect cost increases in tank truck operation from 2005 to 2021. (Exh. 12, pp. 26-27; 

Exhs.41-43; Hollon Tr. 161-67) 

• In (a)(5), the average payload of a milk tanker delivering to the market, presently 480 

cwt, would be increased to 497 cwt to reflect current average load weights. (Exh. 12, p. 

26; Exh. 43; Hollon Tr. 166) 

2. Revise the months of mandatory and discretionary payment from the TCBF 

Currently, Orders 5 and 7 require payments from the TCBF for qualifying supplemental 

milk deliveries in the months of July through the following February. The Orders allow 

payment in the month of June if payment is requested and the Market Administrator finds 

extension of payment to June “necessary to assure the market of an adequate supply of milk for 

fluid use.” 7 C.F.R. 1005.82(b); 1007.82(b) 

DCMA proposals 1 and 2 would eliminate February as a mandatory payment month and 

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make February a discretionary month, subject to the same criteria and procedure as currently 

apply for June. The judgment of the DCMA cooperatives’ marketing staff, supported by Mr. 

Hollon’s testimony, is that February’s demand for supplemental milk is not as great as the other 

months of mandatory payment and making that month discretionary will allow the percentage 

payout to be somewhat greater in the payout months in Order 7 (Exh. 12, pp. 31, 35; Hollon 

Tr.175, 185). 

3. Revise the non-reimbursed mileage factor in § 1005.82(d)(3)(iii) to 15% of 

miles from origination point to delivery plant from the current flat 85 miles 

and allow the Market Administrator to adjust that non-reimbursement 

percentage when necessary 

Currently, Orders 5 and 7 direct the Market Administrator to “subtract 85 miles” from the 

distance from the origination point of the supplemental milk to the receiving pool plant. The 

resulting mileage is then eligible for payment on a per-mile basis. Our proposal would revise the 

subtraction factor from 85 miles in all cases to “15 percent of the miles [from origination point to 

receiving pool plant]”. DCMA submits that a mileage percentage subtraction will more 

uniformly and more equitably reimburse all supplemental deliveries. (Exh. 12, p. 36-37; Hollon 

Tr. 186) 

A uniform reduction in percent of miles will more equitably share the unreimbursed 

miles from origin to destination. Currently, shorter deliveries of supplemental milk have a 

greater percentage of miles unreimbursed. This arguably could give suppliers an incentive to 

import supplemental supplies from a greater distance. By reducing all mileages by a uniform 

percentage, this potential disorderly incentive is eliminated. Furthermore, the closer-in milk is 

better compensated, which is simply fairer. Fifteen percent will mean 116 unreimbursed miles on 

a haul of 774 miles, which was the average distance in the DCMA survey of October 2020. 

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(Exh. 12, pp. 4-5; Tr. 98) 

4. Increase the maximum assessment rate in each Order 

Currently, Order 5 provides in 7 C.F.R. § 1005.81(a) for a maximum assessment of $0.15 

cwt of Class I producer milk to fund the TCBF. DCMA proposal 1 would increase that 

maximum assessment rate to $0.30. Currently, Order 7 provides in 7 C.F.R. § 1007.81(a) for a 

maximum assessment of $0.30 cwt of Class I producer milk to fund the TCBF. DCMA 

proposal 2 would increase that maximum assessment rate to $0.60. (Exh. 12, pp. 33-35; Hollon 

Tr. 179-85) 

DCMA members reviewed an extensive amount of data, including calculations of 

various estimated MRF levels in order to arrive at the proposed assessment maximums. This 

evaluation process is shown in Exhibits 51-54. Exhibit 51 details the range of options that would 

cover the full costs based on the chosen example MRFs and the reasonable assumptions 

underlying the calculations of the MRF. Exhibits 52-53 focus the range for Order 5 to a 

maximum rate of $0.30 per cwt – a rate that DCMA members feel will cover full costs for some 

time and still allow room for increases in costs to be covered with no occurrence of proration. 

Also, we expect this initial rate to be reduced by the Market Administrator, as has been done 

recently, to a level more reflective of current market conditions soon after implementation. 

For Order 7 the members chose a maximum rate of $0.60 per cwt (also Exhibit 51 and 

52) which would allow for much of the current supplemental milk costs of Order 7 to be paid 

although it is assumed some proration would continue to occur. (Exhibit 54) After some period 

of time and experience with the new MRF constants and experience with the current costs of 

haul, the assessment level could be reviewed or the mileage reduction factor could be changed to 

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better reflect cost recovery by the Market Administrator. 

In summary, each DCMA member reviewed its own business plans and options and 

they collectively reached the proposed rates based on the analysis as summarized above. 

Furthermore, and importantly, the proposed rates were subjected to, and found to satisfy, the 

competitive test of finished product competition discussed at V.B below. 

5. The requirements for qualification for participation in the TCBF should not 

be revised 

DCMA does not propose to alter the qualification criteria for payments from the TCBF 

funds. Those qualification criteria have been developed over the multiple prior hearings for the 

TCBF. As so-constructed, with qualification criteria, the TCBF system has worked well within 

its current financial limits. Those financial specifications need to be updated, as the record 

documents. However, the payments should remain applicable only to the seasonal months of 

greatest demand so that the out-of-area payments remain supplemental. Eliminating the 

qualification criteria and making the TCBF system year-round will tilt these Orders’ regulated 

revenues too far in favor of out-of-area supplies versus the in-area milk supplies which need 

additional support. 

IV. TO EXTEND TRANSPORTATION COST REIMBURSEMENT TO LOCAL 

PRODUCERS, DCMA PROPOSALS 3, 4, AND 5 FOR DISTRIBUTING PLANT 

DELIVERY CREDITS IN ORDERS 5, 6, AND 7 SHOULD BE IMPLEMENTED 

The Southeast markets have not provided transportation cost reimbursement to handlers 

acquiring in-area and year-round milk supplies for the market’s Class I distributing plants. This 

inequity is addressed by DCMA proposals for Distributing Plant Delivery Credits in Orders 5, 6, 

and 7 as detailed in Proposals 3, 4, and 5 (Exhs. 75, 76, 77). The proposed order language adds 

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necessary reporting requirements to part .30 and .32 of each order and a new part .84 to each 

order. These new proposed credits have the following operating provisions: 

A. Modeled on the TCBF fund, a Distributing Plant Delivery Credit Fund 

(DPDCF) and payment program is established in Orders 5, 6, and 7 

The Distributing Plant Delivery Credits are intended to extend to in-area milk supplies 

reimbursement for costs of delivery similar to the reimbursement for supplemental milk supplies 

which occurs via the TCBF program. Therefore, the basic structure of the Distributing Plant 

Delivery Credit program is modeled on and follows the TCBF structure in many respects 

including these features: (1) an assessment on Class I producer milk to be paid into a Distributing 

Plant Delivery Credit fund will finance the credits; (2) a set of criteria for the deliveries which 

qualify for the credit is established; (3) a reimbursement rate per eligible mile (identical to the 

TCBF rate) is payable; (4) 85% of the miles from origination point to receiving plant will receive 

payment; and (5) the Market Administrator will have the ability to adjust assessment and 

reimbursement rates under specified conditions and police utilization of the credit program. (§§ 

1005.84(a); 1006.84(a); and 1007.84(a)). (Exh. 13; Hollon Tr. 262-314) 

B. The geographic eligibility criteria for the credits is established for each order 

to include the marketing areas of Orders 5 and 7 for each other; and 

identified historical year-round procurement areas outside the marketing 

areas of Orders 5 and 6 

Farm milk eligible for the delivery credits is defined in each order to capture the local, 

year-round supplies for each order, as follows: 

• Order 5: the marketing areas of Orders 5 and 7, plus additional specified 

counties in the Commonwealth of Virginia and the State of West Virginia; 

• Order 6, the Order 6 marketing area, plus additional specified counties in 

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the State of Georgia; 

• Order 7, the marketing areas of Orders 5 and 7. 

The intent is to make local and year-round supplies for each order eligible for these 

year-round delivery credits. (Exh. 75, § 1005.84(e); Exh. 76, § 1006.84(e); and Exh. 77, § 

1007.84(e)). The identification and role of the counties in Virginia and West Virginia for Order 

5 was discussed by Mr. Smith for Maryland and Virginia. The counties are in non-federally 

regulated area and provide supplies for an Order 5 pool distributing plant in the same 

unregulated area. The counties are also the regular source of milk to Order 5 pool distributing 

plants in the Carolinas. Under these circumstances, the counties are parts of the regular 

procurement area for Order 5 and the handlers obtaining milk supplies from these counties 

should be entitled to the distributing plant delivery credits. (Smith Tr. 389-90) 

The Order 5 provisions also provide for the qualification for credits of milk from an 

Order 5 pool supply plant in Virginia. This plant, located in the marketing area, assembles milk 

delivered in farm pick-up trucks from smaller, mostly plain-sect, producers in Pennsylvania, 

Maryland, and Virginia. The milk is then cooled and shipped in larger over-the-road transports 

on a regular basis to Order 5 distributing plants. Transshipping via the supply plant is the 

necessary method for these producers to supply the market. Distributing plant delivery credits 

would apply only on the mileage from the supply plant to the Order 5 distributing plant. (Smith 

Tr. 389-390) 

The Georgia counties’ supplies to be included in the Order 6 area for distributing plant 

credits were described in detail by Mr. Covington of SMI. (Exh. 81, pp. 2-3; Covington Tr. 

410-411) These counties are a year-round integral part of the supply for the Florida Order and 

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the handlers acquiring milk from those areas should be entitled to the distributing plant delivery 

credits. Supplies from these Georgia counties regularly going to the Florida Order were also 

described by Mr. Herting. (Exh. 82, pp. 2, 6; Herting Tr. 441) 

As with the TCBF fund provisions, for Orders 5 and 7, the respective Orders’ marketing 

areas are considered in-area sources of milk. Those sources are not eligible for TCBF – 

out-of-area supplemental payments – but should be eligible for in-area distributing plant delivery 

credits. 

C. The reimbursement rate for miles-to-plant for this credit is set at the same 

rate per eligible mile as for the out-of-area TCBF supplies 

The Distributing Plant Delivery Credits will be paid at the identical rate per compensable 

mile as the supplemental milk supplies under the TCBF system. (§§ 1005.84(h); 1006.84(h); and 

1007.84(h)). As Mr. Hollon testified, DCMA chose to use the same mileage rate factor for 

inside-the-market transportation as for the outside-the-market TCBF. This rate is a conservative 

compensation rate for local transportation costs which frequently include stop charges, fixed 

minimum charges, volume adjustments, and possibly rate-per-mile factors. DCMA concluded 

that “it would be difficult to impossible to [calculate an average in-area-only rate] in an 

acceptable manner so we decided to use the same MRF that would be calculated each month by 

the Market Administrator for the TCBF system.” (Exh. 13, p. 12; Hollon, Tr. 279) This choice 

is “a conservative choice and completely transparent.” (Exh. 13, p. 12; Hollon, Tr. 279) 

D. A range for the reimbursed portion of the farm to plant mileage is set at 75% 

to 95% so that 5% to 25% of total mileage is not reimbursed in the credit 

program 

As with the TCBF program for supplemental milk supplies, the Distributing Plant 

Credits will not be payable on 100% of the mileage from origination point (farm) to receiving 

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distributing plant. Our proposal establishes a range of mileage reimbursement from 75% to 

95% of gross miles (which is equivalent to subtracting 5% to 25% of farm to plant mileage). 

(Exh. 75, Proposal 5, § 1005.84(f)(1)(i); Proposal 6, § 1006.84(f)(1)(i); and Proposal 7, § 

1007.84(f)(1)(i)) 

E. The initial reimbursed mileage percentage is requested to be 85% with the 

Market Administrator having the authority to move the rate in the 

established range as market conditions dictate 

DCMA proposes that the Market Administrator have discretionary authority to increase 

or decrease the applicable percentage upon a request from a market participant, the receipt of 

comments from the industry, and a finding that market conditions of supply and demand make 

the revision necessary. 

F. The Market Administrator is required to monitor closely the credits claimed 

to identify and disallow credits where any abusive practices and uneconomic 

movements of milk are found 

Because this program of Distributing Plant Delivery Credits is not presently operating as 

such in any Order, and out of an abundance of caution to preserve orderly marketing, DCMA 

proposes that the Market Administrator have the obligation to monitor its operation closely and 

be able to disallow requested credits upon a finding, after due notice to the handler involved and 

appropriate investigation, that the requested credits involve persistent and pervasive uneconomic 

milk movements and do not further orderly marketing and efficient milk movements. (§§ 

1005.84(e)(3); 1006.84(e)(3); and 1007.84(e)(3)). 

G. A maximum assessment rate and an initial assessment rate are established 

for the DPDCF in each order, with the Market Administrator having the 

authority to adjust the rate up or down as necessary and appropriate 

Maximum and initial assessment rates for the DPDCF are proposed to meet market 

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conditions in each order. The maximum and initial rates are: 

• Order 5, maximum $0.60, initial $0.55; 

• Order 6, maximum $0.85, initial $0.80; 

• Order 7, maximum $0.50, initial $0.45. 

(§§ 1005.84(b)-(c); 1006.84(b)-(c); and 1007.84(b)-(c)). As discussed below, these assessment 

rates have been rigorously tested for competitive impact. See part V.B, infra. The rates are 

reasonable and justified. 

V. THE DCMA PROPOSALS AND THE MARKETPLACE 

Consideration of whether it is possible to solve the marketing issues faced in the 

Southeast without the proposed regulations and what impact adoption of the requested 

regulations would have in the marketplace will be discussed in this section. 

A. It is not feasible to obtain the transportation cost relief needed from the 

marketplace without the proposed regulations 

Two questions were posed to a number of DCMA witnesses: Are the proposed 

regulations necessary? Have the DCMA cooperatives attempted to obtain the necessary 

revenues from the market, without additional regulations? These questions were addressed and 

answered thoroughly by multiple DCMA witnesses, including Messrs. Herting, Smith, 

Covington and Hollon. Mr. Hollon summarized the case for the distributing plant delivery 

credits versus over-order prices succinctly as follows: 

“It provides a reimbursement system superior to over-order prices, which are 

challenging to maintain and even more challenging to increase.6 Having a 

portion of transportation costs within the order pricing system treats all suppliers 

and buyers equitably. Handlers are generally more capable of passing through to 

packaged fluid milk wholesalers/retailers Class I price changes which are 

6 Fuel price increases, which can be of significant magnitude and difficult to anticipate (Exh. 79; Vanadia Tr. 366-377) are 

a major element of transportation costs which are extremely challenging to reflect in over-order pricing. 

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specifically outlined on Federal Order price announcements.” 

(Hollon, Tr. 275-76) 

The testimony of DCMA marketing personnel supported this testimony citing at least (3) 

reasons why federal order regulations are required to address these marketing challenges. 

1. Customer requests for price transparency 

First and foremost, regulatory minimum prices are what customers request. Federal 

order prices are published monthly by the Market Administrator. All parties in the marketing 

chain have access to those prices and are aware of them. The published FMMO prices can be 

utilized by processors in connection with sales of processed products to their customers. (Smith 

Tr. 394; Covington, Tr., 419-20; Herting, Tr. 449-50; Exh. 13, p. 9; Hollon Tr. 275) 

2. Assurance of price uniformity 

When prices are part of the FMMO system, all handlers/processors know that their 

competitors are subject to the same minimum pricing. This allows processors to compete for 

sales on the basis of service, quality and other factors under their control, with the assurance that 

all have the same starting point in raw product price. (Smith Tr. 394; Covington, Tr., 419-20; 

Herting, Tr. 449-50) 

3. Assurance of payment 

Cooperatives have assurance of getting paid on a timely basis for FMMO minimum 

prices. This is an important part of the FMMO system. When cooperatives charge over-order 

prices to Class I processors, timely and full payment is not assured and is a real risk, as more 

than one witness attested. (Smith Tr. 394; Covington, Tr., 419-20; Herting, Tr. 449-50) 

In summary, uniform minimum prices, assessed and distributed through the order system 

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is the only realistic option for cooperatives, as marketing handlers, to obtain fair reimbursement 

for marketing costs which vary from farm to plant and customer to customer and for buyers to 

have confidence of minimum prices paid by all. The marketplace of over-order charges is 

simply not a viable vehicle to recover the costs addressed in these hearing proposals. 

B. A detailed, in-depth analysis of the competitive impact of the DCMA 

proposals establishes that they will not place southeastern order pool 

distributing plant operators at a competitive disadvantage with out-of-area 

plants 

In putting forth the proposals in this hearing which will increase the minimum total 

obligation that pool distributing plants in Orders 5, 6, and 7 will have for Class I producer milk, 

DCMA is sensitive to the need to keep these customers competitive with sources of milk and 

packaged products from other Order areas. To evaluate that issue, DCMA presented the 

testimony of Emma Downing-Reynolds, a dairy policy and industry relations employee of Dairy 

Farmers of America. Ms. Downing-Reynolds holds an M.S. in Agricultural and Applied 

Economics with a Public Policy Analysis emphasis from the University of Missouri. She was 

tasked with developing information to evaluate the competitive impact of the Class I price 

assessments on out-of-area sources. For this project, she drew upon data available from DAT 

Solutions, a U.S.-based provider of transportation information and freight exchange services. 

DAT is a trucking industry relied-upon source of prevailing rates for transport of commodities or 

other products by truck from point-to-point in the continental U.S. Its database includes 

information from 120,000 carrier customers representing 2 million trucks, 10,000 broker 

customers and 13,000 shipping customers, representing more than 536 million loads and trucks 

posted annually. 

The DAT database includes many lane rates for packaged milk. From that available 

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database, she prepared a table (Exh. 78, pp. 4-5) which reveals the Reefer Transport Cost 

between 60 selected routes from origin cities out of the Southeast area to destination cities in the 

Southeast marketing area. The point-to-point pairings were selected by Mr. Hollon in 

consultation with DCMA cooperatives’ marketing personnel. They represent a comprehensive 

array of actual and potential competitive interactions between the Orders 5, 6, and 7 plants and 

the out-of-area, as well as some in-area, competitors. 

Using Ms. Downing-Reynolds’ cost of transport, Mr. Hollon then compared the landed 

cost of packaged milk from the out-of-area origins, as well as some in-area origins,

7 to the cost 

at the in-area competitive locations. In all comparisons it was assumed that the in-area plants 

were charged the maximum assessment possible under the DCMA proposals -- which is $0.90 in 

Order 5; $1.10 in Order 7; and $0.85 in Order 6 – as well as the Class I differential. The 

out-of-area plants’ cost at the competitive destination was each plant’s Class I differential plus 

the transportation cost determined by the DAT analysis. The result of the comparisons is shown 

on Exhibit 70. The bottom line is that there was no location at which in-area southeastern 

orders plants will be placed at a competitive disadvantage to their potential out-of-area, or 

in-area, competitors. 

C. Conclusion regarding marketplace issues 

The testimony of the DCMA marketing witnesses and the results of the empirical 

analysis using the DAT data substantiates that the DCMA proposals are necessary to address the 

increased transportation costs in the Southeast and will do so in a way which will not 

7 For instance, on Exhibit 70 see Order 6 comparisons such as Orlando to Miami. 

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disadvantage the Southeast dairy industry. The data assembled in support of these DCMA 

proposals is truly overwhelming. 

VI. PROPOSED ALTERNATIVES TO THE DCMA PROPOSALS SHOULD NOT BE 

ADOPTED 

Prairie Farms Dairy, Inc., (Prairie Farms) and the Milk Innovation Group offered, in the 

case of Prairie Farms, or suggested, in the case of the Milk Innovation Group, that the Secretary 

consider alternatives or amendments to the DCMA proposals. These alternative 

recommendations lack merit and should not be adopted. 

A. The Prairie Farms’ proposals for assembly credits and expanded 

transportation-credits should not be adopted 

Prairie Farms (sometimes “PF”) is an Illinois-based Capper-Volstead 

cooperative with 682 dairy farmer member-owners (Tonak, Tr. 540). A small portion, 

apparently much less than 10%, of its member farms are in the southeastern order marketing 

areas (Tr. 540). However, it does own and/or operate nine (9) pool distributing plants in Orders 

5 and 7 (TR. 541). Those plants are supplied predominately by sources other than Prairie 

Farms’ membership (Tonak, Tr. 541-544). Prairie Farms submitted five (5) proposals, 

numbered six (6) through ten (10), for this hearing. (Exh. 1) Its proposals 6 and 7 would 

eliminate qualifying criteria for payments from the TCBF funds and thereby make the payments 

available to all producers, both inside and outside the marketing areas, during the qualifying 

months. Proposals 8, 9, and 10 would establish a new uniform Assembly Performance Credit 

(APC) payable on all producer milk, both within and outside the marketing areas, delivered to 

Order 5, 6, or 7 pool distributing plants. This payment would be made from an assessment of 

$0.50 per cwt on “all Class I milk delivered to a pool distributing plant”. The funds would be 

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paid out in a uniform distribution, projected (by the Market Administrator at PF’s request) to be 

$0.40-$0.45 per cwt based on the marketwide utilization of pool distributing plants (See Exh. 9, 

Tables 7-9). The Prairie Farms proposals lack critical substantiation, would not address the 

marketing challenges in the southeastern orders, and do not have the support of a substantial 

number of producers in the southeastern markets. 

B. Lack of cost-out and cost justification 

A primary shortcoming of the Prairie Farms proposals is their lack of cost justification 

and costing-out analysis. This applies to both the expansion of the transportation credits and to 

the APCs. With respect to the transportation credits, if the eligibility were expanded to all milk, 

within and outside the marketing area during the pay-out months, as set out in Proposals 6 and 7 

and the testimony of the Prairie Farms witness (see Exh. 84, p. 6), the pay-out per mile would be 

drastically reduced, likely to the point where it would hardly be consequential. Taking just the 

month of October 2022 in Order 7 as an example: In that month there were 280.1 million lbs. of 

producer milk delivered to pool distributing plants (Exh. 9, p. 9); T-credits were claimed on 

134.1 million pounds (Exh. 8, p. 20); and the pro-ration payout was 25.89%. With more than 

double the pounds eligible, the proration would have likely been less than 10%, a dysfunctional 

payout. Even if the PF proposal incorporated the new assessment and updated MRF of the 

DCMA proposals, the pro-ration percentage is going to be very low. Prairie Farms has not 

analyzed the impact of its proposal for expanded eligibility for transportation credits (Tr. 547). 

As Mr. Tonak testified: 

“Q. So, in this hearing record, if the Department were to adopt your proposal, 

there’d be no way of knowing what financial impact it would have? 

A. That would be correct.” (Tr. 547) 

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Clearly, the record lacks support for adoption of these proposals. 

A similar deficiency is present in the proposals for Assembly Performance Credits. 

Prairie Farms has provided no substantial cost-justification for the proposed $0.50 APC. The 

general testimony of the PF witness that assembly, dispatch, and delivery costs “vary widely” but 

would be “partially born[sic]” by the APC is not supported by any detailed (or even less than 

detailed), substantiated costs of assembly, dispatch, delivery, or transportation which is also cited 

as an element of the APC (Exh. 84, pp. 7-8; Tr. 518-19). Even without consideration of the 

other objections discussed below to the APC, the abject lack of cost analysis and justification for 

the proposed assessment and credit requires that the proposal be rejected. 

The Prairie Farms APC proposal has several additional defects: 

• By directing new revenues to all producer milk irrespective of its location, it 

continues the disparate treatment of in-area versus out-of-area milk supplies. 

One of the key issues with the current provisions in the Southeast orders is that 

the costs and challenges of in-area milk production has not been recognized. The 

PF APCs perpetuate that discrimination by allocating a substantial proportion of 

the new revenues generated by their $0.50 assessment on local Class I uses to 

out-of-area producers. This is in Prairie Farms’ interest, of course, as it does not 

have many local producers. But the fact is that the PF APC program does not 

address the need for revenues directed to supporting the local in-area producer 

supplies. 

• Furthermore, the uniform payment of the APC to all pool distributing plant 

deliveries does not address the mismatch of supply and demand locations within 

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the southeastern orders’ marketing areas. There is substantial testimony by 

numerous witnesses that this problem has been magnified with the reduction in 

both farms and plants in the Southeast. The uniform distribution of new revenue 

does nothing to ameliorate this inequity. The DCMA Distributing Plant Delivery 

Credits, on the other hand, are tailored to the cost of farm to plant delivery, 

whether south to north or east to west. The PF APC program is not 

well-designed for the Southeast markets. 

• Also, the overlay of the APC with transportation credits on all producer milk has 

not been costed out or reconciled. To the extent that the programs compensate 

the same milk, year-round, as pointed out above, the transportation credits will be 

almost inconsequential, due to pro-rationing, and the resulting program will not 

effectively address the marketing challenges in the region in any targeted way. 

• Finally, the PF program simply does not have the support of any substantial 

number of producers in these orders. PF is not in Order 6 at all, either with 

producers or distributing plants and its representation in Orders 5 and 7 is 

primarily on the handler/buyer side. No other interested parties appeared to 

support the PF proposals. This record will plainly not support their adoption. 

C. The Milk Innovation Group testimony 

The Milk Innovation Group witness’s suggestion that a program of assembly credits 

should be funded out of existing pool revenues is a non-starter. It would do nothing to address 

the problems of supporting the costs to produce milk for, or move milk to, southeastern order 

pool distributing plants. Re-shuffling existing pool revenues in the Southeast would be the 

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equivalent of rearranging the deck chairs on the Titanic. The threat to the welfare of the ship 

would not be averted; only the view of some boat-occupants to the oncoming glacier would be 

impacted. New revenues targeted to the costs of getting milk to the demand points in the 

marketing area as designed in the DCMA proposals are what is needed. 

VII. CONCLUSION 

The hearing record comprehensively establishes that there are serious disorderly 

marketing conditions in the southeastern Federal Orders 5, 6, and 7. Those conditions are so 

serious that they threaten the assurance of an adequate supply of fresh and wholesome milk for 

southeastern consumers. To address this urgent condition, it is imperative that the DCMA 

proposals be adopted on an expedited basis. The record establishes that expedited 

implementation is both (1) ‘imperative’ – as testified to by the dairy farmer witnesses, (see pp. 

9-10, above): e.g. “It . . . can’t come soon enough.” – and (2) ‘unavoidable’ – there is no 

free-market solution available – as testified to unanimously by the DCMA cooperative marketing 

personnel (see pp. 22-24, above). Thus, the record unequivocally meets the criteria for 

expedited action, 7 C.F.R. § 900.12(d) and the Secretary should so find. 

Respectfully submitted, 

JOHNSON, DUFFIE, STEWART & WEIDNER 

Dated: April 19, 2023 

Marvin Beshore, Esquire 

I.D. No. 31979 

301 Market Street, P.O. Box 109 

Lemoyne, PA 17043-0109 

Phone: (717) 761-4540 

Email: mbeshore@johnsonduffie.com 

Attorney for DCMA 

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CERTIFICATE OF SERVICE 

I, Marvin Beshore, Esquire, certify that on April 19, 2023, I served true and correct 

copies of the foregoing Post-Hearing Brief For Dairy Cooperative Marketing Association 

(“DCMA”), by email to the following: 

Ryan Miltner, Esquire 

Miltner Reed, LLC 

ryan@miltner-reed.com 

Rebecca Dickerson 

Dairy Marketing Specialist 

rebecca.dickerson@usda.gov 

Brian Hill, Esquire 

Senior Counsel, USDA 

brian.hill1@usda.gov 

The Honorable Channing Strother 

Chief Administrative Law Judge 

channing.strother@usda.gov 

Michelle McMurtray, Esquire 

Attorney Advisor, USDA 

michelle.mcmurtray@usda.gov 

Chris Hoeger 

Prairie Farms Cooperative 

choeger@prairiefarms.com 

Lauren Becker, Esquire 

Dairy Marketing Specialist 

lauren.becker@usda.gov 

Michael Sumners 

mps@wk.net 

Dennis Tonak 

Prairie Farms Dairy, Inc. 

Dtonak@prairiefarms.com 

Erin Taylor, Director 

Order Formulation & Enforcement Division 

erin.taylor@usda.gov 

Respectfully submitted, 

Marvin Beshore, Esquire 

Johnson, Duffie, Stewart & Weidner 

301 Market Street ~ P.O. Box 109 

Lemoyne, PA 17043 

Attorney for Dairy Cooperative Marketing 

Association 

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