UNITED STATES DEPARTMENT OF AGRICULTURE 

BEFORE THE SECRETARY OF AGRICULTURE 

In re: 

Milk in the Northeast and Other AO Docket No. 23-J-0067; 

Marketing Areas AMS-DA-23-0031 

Ruling ACCEPTING as ARGUMENT the 2024 Feb 23 and Mar 8 Filings 

This Ruling concerns the Hearing on proposed amendments to pricing formulas in all 11 Federal 

Milk Marketing Orders (“FMMOs”), filed as Docket No. 23-J-0067; AMS-DA-23-0031, In re: 

Milk in the Northeast and Other Marketing Areas. 

The emergency relief requested in the February 23, 2024 filing by the American Farm Bureau 

Federation and National Farmers Union will be addressed NOT by the Administrative Law 

Judges but by Secretary Vilsack. 

Administrative Law Judges remain responsible for rulings and orders until certification of the 

transcript is issued, which will be soon after March 22, 2024. Administrative Law Judges 

stopped taking evidence when the Hearing ENDED, on January 30, 2024. 

The Response filed by the Milk Innovation Group and International Dairy Foods Association on 

March 8, 2024 asks that the Request for Emergency Return to “Higher-of” Class I Mover” filed 

on February 23, 2024 be rejected. Among other objections, the Response calls attention to a 

sentence in the Request, in the next-to-the last paragraph, that may rely on information not in 

evidence when the Hearing ended. 

We find value in the arguments presented in 

the REQUEST of the American Farm Bureau Federation and National Farmers Union filed with 

the USDA Hearing Clerk on February 23, 2024 (copy attached); and 

the RESPONSE of the Milk Innovation Group and the International Dairy Foods Association 

filed with the USDA Hearing Clerk on March 8, 2024 (copy attached). 

Accordingly, we ACCEPT as ARGUMENT (NOT evidence) these 2024 February 23 and March 

8 filings. 

We suggest that the parties include these filings in their filings that are due by April 1, 2024. 

We request that the USDA Agricultural Marketing Service post this Ruling with attachments on 

the USDA / AMS webpage at 

REC'D- USDA/OALJ/HCO

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https://www.ams.usda.gov/rules-regulations/moa/dairy/hearings/national-fmmo-pricing-hearing 

The most efficient way to file with the Hearing Clerk is to attach a document to an email and 

To meet the deadlines for filing with the Hearing Clerk, filings must be RECEIVED by the 

Hearing Clerk by 4:30 pm Eastern on the due date. 

Copies of this “Ruling ACCEPTING as ARGUMENT the 2024 Feb 23 and Mar 8 Filings” shall 

be sent by the Hearing Clerk to each of the parties. 

Issued at Washington, D.C., 

this 11th day of March 2024 

send to SM.OHA.HearingClerks@usda.gov, or to FAX the document to 1-844-325-6940 if you 

prefer. The Hearing Clerk’s information can also be found on the USDA / AMS webpage and on 

the last page of this order. 

STROTHER 

CHANNING Digitally signed by CHANNING

STROTHER Date: 2024.03.11 16:19:25 -04'00' 

Digitally signed by Jill S Clifton 

Date: 2024.03.11 14:08:06 -04'00' 

Channing D. Strother Jill S. Clifton 

Chief Administrative Law Judge Administrative Law Judge 

Attached: 

the REQUEST of the American Farm Bureau Federation and National Farmers Union filed with 

the USDA Hearing Clerk on February 23, 2024; and 

the RESPONSE of the Milk Innovation Group and the International Dairy Foods Association 

filed with the USDA Hearing Clerk on March 8, 2024. 

Hearing Clerk 

United States Department of Agriculture 

Stop 9203, South Building, Room 1031-S 

1400 Independence Ave SW 

Washington, DC 20250-9203 

Phone: 1-202-720-4443 

Fax: 1-844-325-6940 

sm.oha.HearingClerks@usda.gov 

2 
 

ATTACHMENT 1

February 22, 2024 

The Honorable Thomas J. Vilsack 

Secretary, U.S. Department of Agriculture 

200A Whitten Building 

1400 Independence Avenue, S.W. 

Washington, D.C. 20250 'RFNHW-

RE: Request for Emergency Return to “Higher-of” Class I Mover 

Dear Secretary Vilsack, 

On behalf of our members across the country, we thank you for the U.S. Department of 

Agriculture’s continuing effort to provide price stability and transparency to dairy farmers. U.S. 

dairy farm families face many challenges as they make their critical contribution to the wellbeing of our nation. 

One of those challenges is the ongoing milk price spreads that have substantially lowered farmer 

milk prices under the current “average of” Class I mover formula. The American Farm Bureau 

Federation and National Farmers Union request that you address this challenge by issuing an 

interim final decision in the current federal milk marketing order hearing process that returns the 

Class I mover formula to the “higher-of” the Class III or IV calculations, as it was before the 

2018 farm bill. 

The 2018 farm bill included a provision that swapped the higher-of the advanced Class III or IV 

skim milk price formula for the simple average-of advanced Class III and IV skim milk formulas 

plus 74 cents. This was intended to produce a roughly equal long-term Class I milk price. This 

statutory change was made at the request of dairy processors and dairy cooperatives and was 

intended as a revenue-neutral way to improve risk management opportunities for beverage milk. 

The current formula was based on a quick legislative decision and not based on a hearing record 

of demonstrated need; it has also not turned out to be revenue neutral for dairy farmers. A return 

to the “higher-of” is supported by the record in the current hearing, as well as by the rulemaking 

at the time it was first established in 2000. 

Disruptive market conditions during the recent pandemic exposed and exacerbated a temporary 

but serious shortage of block cheddar cheese production. This led to very high Class III values, a 

huge imbalance between Class III and Class IV prices, and over $700 million in Class I revenue 

losses to producers in the 11 federal order pools in 2020 alone resulting from the “average-of 

plus” Class I mover. This, along with the delay associated with advanced pricing, resulted in 

manufacturing milk prices higher than the market blends, leading to massive de-pooling of 

producer milk by manufacturing plants to capture those higher market prices. These large 

negative producer price differentials created significant disparities among the milk checks of 

different groups of farmers. These losses in pool value have continued through 2023 and into 

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2024, as Class IV prices have become the driver of the dairy market and the gap between Class 

III and Class IV prices has flipped, but remained large, with no end in sight. As of December 

2023, cumulative pool losses have surpassed $1 billion since the formula went into effect in May 

2019, including pool losses of $50 million in November 2023 and $38 million in December of 

2023. Dairy farmers with pooled milk face ongoing threats of decreased milk checks linked to 

the current Class I mover formula. 

The members of both our organizations, through our respective grassroots policy development 

processes, have unanimously expressed the high priority they put on a speedy return to the 

“higher-of” Class I mover. 

AFBF policy states: “(G)iven the circumstances of the Class I mover changes in the 2018 farm

bill, we support returning to the Class I milk mover formula to the higher-of Class III or IV in the

most expedient manner possible.”

A special order of business adopted by the delegates at the 2023 National Farmers Union 

Convention supports the immediate return to a Class I pricing formula based on the higher-of 

Class III or Class VI. 

In a forum held in Kansas City in October 2022 to address federal milk marketing order issues, 

the recommendation with greatest support from the 300-dairy farmer-majority participants was 

for a return to the “higher-of” Class I formula. 

The FMMO hearing process has completed only step 5 of a 12-step process before changes 

would potentially go into effect for our dairy farmers. With about $55 million in Class I losses 

related to the current Class I formula in January 2024 alone, each additional month without a 

change poses a threat to dairy farmers’ livelihoods. An interim final decision could speed 

implementation of this change by six months or more. 

We understand that USDA is undertaking a comprehensive process of amending federal orders; 

however, dairy farmers remain stuck with current pricing regulations until USDA publishes a 

final rule. Current market dynamics underscore the need for expedited return to the “higher-of”

Class I mover. The current Class I mover was a well-intentioned but misguided policy that has 

reduced dairy farmer income. Emergency implementation of the “higher-of” Class I mover 

formula will staunch persistent losses associated with a policy that has left dairy farmers 

struggling to make ends meet. 

Sincerely, 

Zippy Duvall Rob Larew 

President, American Farm Bureau Federation President, National Farmers Union 
 

 

-l I Davis \'Vrinht 

1

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DWT.COM 

ATTACHMENT 2

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 

'RFNHW-

March 7, 2024 

Via Email and US Mail 

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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. 
 

Honorable Jill S. Clifton 

Honorable Secretary Thomas J. Vilsack 

March 7, 2024 

Page 2 

Second, AFBF’s request for emergency status is procedurally deficient. Such a request must be 

made at the outset of any hearing process. See 7 C.F.R. §900.4 (aptly entitled, “Institution of 

proceeding”). Pursuant to 7 C.F.R. §900.4(a), a hearing can proceed on an expedited schedule 

only if the Administrator determines “than an emergency exists which requires a shorter period of 

notice.” A request for emergency would have required a shorter notice period, and such emergency 

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. 

§ 556. 

Finally, to be clear, MIG expects that various 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 

positions stated in this letter. 

Respectfully submitted, 

Davis Wright Tremaine LLP 

Charles M. English, Jr. Ashley L. Vulin 

cc: 

Dana Coale (dana.coale@usda.gov) Danny Munch (dmunch@fb.org) 

Erin Taylor (erin.taylor@usda.gov) John Vetne (johnvetne@gmail.com) 

Brian Hill (brian.hill1@usda.gov) Marin Bozic (marin@bozic.io) 

Steven Rosenbaum (srosenbaum@cov.com) Lucas Sjostrom (lucas@mnmilk.org) 

Mike Brown (mbrown@idfa.org) Daniel Smith (dsmith@gmavt.net) 

Nicole Hancock (nicole.hancock@stoel.com) Ryan Miltner (ryan@miltner-reed.com) 

Bradley Prowant (Bradley.prowant@stoel.com 

Roger Cryan (rogerc@fb.org) 
 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE 

Milk in the Northeast and Other Marketing Areas 

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 RULING ACCEPTING AS 

ARGUMENT THE 2024 FEB 23 AND MAR 8 FILINGS and ATTACHMENTS has been furnished and 

was served upon the following parties by electronic mail on March 12, 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 

Lucas S. Sjostrom, Executive Director 

Minnesota Milk Producers Association 

P.O. Box 65 

Brooten, MN 56316 

E-mail: lucas@mnmilk.org 

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 

Mike Stranz, Vice President of Advocacy 

National Farmers Union 

20 F Street NW, Suite 300 

Washington, DC 20001 

E-mail: mstranz@nfudc.org 

Mike Brown, Chief Economist 

International Dairy Foods Association 

1250 H Street, NW, Suite 900 

Washington, DC 20005 

E-mail: mbrown@idfa.org 

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 

E-mail: wyoviene@bakerdonelson.com 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

______________________________ 

CERTIFICATE OF SERVICE (cont’d)

Milk in the Northeast and Other Marketing Areas 

Docket No.: 23-J-0067 

Counsel for International Dairy Foods Counsel for Select Milk Producers, Inc. 

Association Ryan K. Miltner 

Steven J. Rosenbaum The Miltner Law Firm, LLC 

Covington & Burling LLP 100 North Main Street 

1201 Pennsylvania Avenue, NW P.O. Box 477 

Washington, DC 20004 New Knoxville, OH 45871 

E-mail: srosenbaum@cov.com E-mail: ryan@miltnerlawfirm.com 

ryan@miltner-reed.com 

American Farm Bureau Federation Counsel for Milk Innovations Group 

600 Maryland Avenue SW, Suite 1000W Davis Wright Tremaine LLP 

Washington, DC 20024 920 Fifth Avenue, Suite 3300 

Sam Kieffer Seattle, WA 98104 

Charles M. English, Jr. 

Roger Cryan 

E-mail: sk@fb.org 

Ashley L. Vulin 

Danny Munch 

E-mail: rogerc@fb.org 

Grace Bulger 

Erin 

E-mail: dmunch@fb.org 

M. Anthony 

E-mail: chipenenglish@dwt.com 

E-mail: ashleyvulin@dwt.com 

E-mail: gracebulger@dwt.com 

Mike Tomko 

E-mail: erin@fb.org 

E-mail: miket@fb.org 

E-mail: dsmith@gmavt.net 

E-mail: sleperjp@gmail.com 

Daniel Smith 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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