:i-tl,' DavisWright :y Tremaine LLP 

DWT.COM 

Charles M. English, Jr. 

202.973.4272 tel 

202.973.4499 fax 

chipenglish@dwt.com 

Ashley L. Vulin 

503-778-5493 tel 

503-276-5793 fax 

ashleyvulin@dwt.com 

Docket: 23-J-0067

March 7, 2024 

Via Email and US Mail 

SM.OHA.HearingClerks@usda.gov 

FMMOHearing@usda.gov 

The Honorable Jill S. Clifton 

Administrative Law Judge 

The Honorable Thomas J. Vilsack 

Secretary, U.S. Department of Agriculture 

200A Whitten Building 

1400 Independence Avenue, SW 

Washington, D.C. 20250-0225 

Re: Procedural Objection to AFBF’s and NFU’s Request for Emergency Return to 

“Higher-of” Class I Mover 

The Milk Innovation Group (MIG) reiterates its objections to American Farm Bureau Federations’ 

(AFBF’s) and National Farmer’s Union’s (NFU’s) attempt to circumvent both the established 

regulations and the hearing process in its request for emergency consideration of the change to the 

base Class I skim formula. 

First, AFBF’s February 22 post-hearing letter is neither a brief, nor a request for conclusions of 

fact, making it an impermissible ex parte communication. See 7 C.F.R. §900.16. USDA’s 

regulations permit the filing of “proposed findings and conclusions, and written arguments or 

briefs, based upon the evidence received at the hearing...”; “[f]actual material other than that 

adduced at the hearing ... shall not be alluded to therein, and, in any case, shall not be 

considered...” 7 C.F.R. §900.9(b).1

 AFBF’s letter is clearly the latter. For example, AFBF alleges 

that there were, “... about $55 million in Class I losses related to the current Class I formula in 

January 2024 alone...;” but the hearing closed on January 30, 2024, meaning this fact was not and 

could not have been introduced into the record. 

USDA should reject the letter entirely. Otherwise, other participants will be left to conclude they 

must not only submit the proper formal briefs, but also advocate for new requests during the posthearing period of the rulemaking process. The briefing stage should remain an organized filing 

process, not a chaotic letter writing campaign. 

1

 MIG intentionally limits this response to the procedural shortcomings of AFBF’s request. The merits will be 

addressed in the proper form of a post-hearing brief and conclusions of fact. 

REC'D- USDA/OALJ/HCO

202

4 MAR

8

8:30

A

M
 

j 

r 

f 

Dana Coale (dana.coale@usda.gov) 

Erin Taylor (erin.taylor@usda.gov) 

Danny Munch (dmunch@fb.org) 

Brian Hill (brian.hill1@usda.gov) 

John Vetne (johnvetne@gmail.com) 

Steven Rosenbaum (srosenbaum@cov.com) 

Marin Bozic (marin@bozic.io) 

Mike Brown (mbrown@idfa.org) 

Lucas Sjostrom (lucas@mnmilk.org) 

Nicole Hancock (nicole.hancock@stoel.com) 

status would need to be included in that notice. Without such, other interested parties do not have 

due process notice of the fact that the proceeding is taking place under expedited rules. 

Third, USDA has just concluded the 49-day on the record rulemaking proceeding that expressly 

includes this issue. Pursuant to the AMAA (7 U.S.C. § 608c16(C)(iii)) and implementing 

regulations, as well as the announcement by the Administrative Law Judge who presides over the 

hearing, April 1 is the established briefing deadline for the parties to address the Proposals that 

were the subject of the hearing, including the various proposals relating to the base Class I skim 

formula. The AFBF letter ignores that deadline and does not seek a modification of that briefing 

schedule. The rules of practice expressly provide that any recommended decision must be prepared 

after the period allowed for the filing of briefs. 7 C.F.R. § 900.12(a). The Secretary would violate 

the parties’ due process rights if he were to act inconsistent with that schedule and before all 

interested parties were able to file their briefs, especially since the Secretary has not provided in 

the Notice of Hearing or otherwise advance notice of such a deviation. See generally, 5 U.S.C. 

Finally, to be clear, MIG expects that various

§ 556. 

 parties, including AFBF, will be submitting posthearing briefs and conclusions of fact that may address some of the positions contained in AFBF’s 

letter. MIG clearly makes no objection to that advocacy, but rather requests affirmation of the 

Department’s commitment to proper due process by not considering AFBF’s February 22 letter. 

The volume of evidence and complexity of issues at the hearing, coupled with the diverse views 

of the various participants, counsels that the full hearing process must be followed in this matter. 

We have been authorized by the International Dairy Foods Association to state that it joins in the 

Charles M. English, Jr. 

Davis Wright Tremaine LLP 

Respectfully submitted,

positions stated in this letter. 

Ashley L. Vulin 

cc: 

Daniel Smith (dsmith@gmavt.net) 

Ryan Miltner (ryan@miltner-reed.com) 

Bradley Prowant (Bradley.prowant@stoel.com 

Roger Cryan (rogerc@fb.org) 
 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE 

Eleven Federal Milk Marketing Orders 

Docket No.: 23-J-0067 

Having personal knowledge of the foregoing, I declare under penalty of perjury that the 

information herein is true and correct, and this is to certify that a copy of the PROCEDURAL 

OBJECTION TO AFBF'S AND NFU'S REQUEST FOR EMERGENCY RETURN TO 

"HIGHER-OF" CLASS I MOVER has been furnished and was served upon the following 

parties by electronic mail on March 11, 2024 by the following: 

USDA (OGC) 

Brian Hill, OGC 

Brian.Hill1@usda.gov 

Michelle McMurtray, OGC 

Michelle.McMurtray@usda.gov 

Donna Erwin, OGC 

Donna.Erwin@usda.gov 

Carla Wagner, OGC 

Carla.Wagner@usda.gov 

USDA (OSEC) 

Katharine Ferguson 

Katharine.Ferguson@usda.gov 

Erick Metzger 

General Manager 

National All-Jersey, Inc. 

6486 East Main Street 

Reynoldsburg, OH 43068 

E-mail: emetzger@usjersey.com 

Counsel for National All-Jersey, Inc. 

John H. Vetne 

E-mail: johnvetne@gmail.com 

Wendy M. Yoviene 

Baker, Donelson, Berman, Caldwell, 

& Berkowitz PC 

901 K Street, NW, Suite 900 

Washington, DC 20001 

USDA (AMS) Dairy Programs 

Dana H. Coale, Deputy Administrator 

Dana.Coale@usda.gov 

Erin Taylor, Director Order Formulation and 

Enforcement Division 

Erin.Taylor@usda.gov 

AMS - FMMO Hearing 

FMMOHearing@usda.gov 

Counsel for National Milk Producers 

Federation 

Stoel Rives LLP 

101 S. Capitol Blvd., Suite 1900 

Boise, ID 83702 

Bradley R. Prowant 

E-mail: bradley.prowant@stoel.com 

Nicole C. Hancock 

E-mail: nicole.hancock@stoel.com 

Counsel for International Dairy Foods 

Association 

Steven J. Rosenbaum 

Covington & Burling LLP 

1201 Pennsylvania Avenue, NW 

Washington, DC 20004 

E-mail: wyoviene@bakerdonelson.com E-mail: srosenbaum@cov.com 

Page 1 of 2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

______________________________ 

CERTIFICATE OF SERVICE (cont’d)

Eleven Federal Milk Marketing Orders 

Docket No.: 23-J-0067 

Counsel for Milk Innovations Group 

Davis Wright Tremaine LLP 

920 Fifth Avenue, Suite 3300 

Seattle, WA 98104 

Charles M. English, Jr. 

E-mail: chipenenglish@dwt.com 

Ashley L. Vulin 

E-mail: ashleyvulin@dwt.com 

Grace Bulger 

E-mail: gracebulger@dwt.com 

American Farm Bureau Federation 

600 Maryland Avenue SW, Suite 1000W 

Washington, DC 20024 

Sam Kieffer 

E-mail: sk@fb.org 

Roger Cryan 

E-mail: rogerc@fb.org 

Danny Munch 

E-mail: dmunch@fb.org 

Erin M. Anthony 

E-mail: erin@fb.org 

Mike Tomko 

E-mail: miket@fb.org 

Counsel for Select Milk Producers, Inc. 

Ryan K. Miltner 

The Miltner Law Firm, LLC 

100 North Main Street 

P.O. Box 477 

New Knoxville, OH 45871 

E-mail: ryan@miltnerlawfirm.com 

ryan@miltner-reed.com 

Lucas S. Sjostrom 

E-mail: lucas@mnmilk.org 

Mike Stranz 

E-mail: mstranz@nfudc.org 

E-mail: sleperjp@gmail.com 

Marin Bozic 

E-mail: marin@bozic.io 

Respectfully Submitted, 

Wanda Mosby, Legal Assistant 

USDA/Office of Administrative Law Judges 

Hearing Clerk’s Office, Room 1031-S 

1400 Independence Ave., SW 

Washington, DC 20250-9203 

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