AskHACCP: Received an NR? FSIS Now Has an Online Form for Appeals

Receiving a Noncompliance Record, or NR, can be stressful, especially for a small or very small establishment.

Many processors are hesitant to appeal because they do not want to create tension with inspection personnel or worry that questioning a decision could make things more difficult.

But appealing an inspection decision is an established part of the FSIS regulatory process. FSIS specifically states that establishments may appeal inspection decisions without fear of retaliation.

And now, FSIS has created another way for small and very small establishments to submit NR appeals.

A New Online Option for NR Appeals

FSIS recently launched a new online appeals form to make it easier for small and very small establishments to submit noncompliance appeals outside of the Public Health Information System, or PHIS.

Through the new form, establishment personnel can identify the applicable establishment and NR, provide the reason for the appeal and contact information, and submit the appeal for routing to the appropriate FSIS official.

FSIS Online Appeals Form:https://appeals.fsis.usda.gov/

For a small establishment that may not work in PHIS regularly or may feel uncomfortable navigating the appeals process, a simpler submission option can make the process more approachable.

When Is It Appropriate to Appeal?

An NR does not need to be appealed simply because an establishment does not like the finding.

There should be a factual, technical, or regulatory basis for the appeal.

That may include situations where:

• The establishment believes the operation was in compliance with the applicable regulatory requirement.

• The NR contains incorrect or incomplete facts.

• The regulatory citation does not apply to the circumstances documented.

• Relevant records, procedures, observations, or other information were not considered.

The starting point is simple.

Read the NR carefully.

What did FSIS document? What regulation was cited? What actually happened? What records or other documentation support the establishment's position?

An Appeal Does Not Have to Be Adversarial

Appealing an NR does not mean picking a fight with your inspector.

FSIS permits an inspected establishment or its representative to appeal an applicable inspection decision or action to the immediate supervisor of the FSIS employee whose decision is being challenged. FSIS also encourages establishments to discuss concerns with the individual who issued the NR, since concerns may sometimes be resolved at the lowest possible level before an appeal is necessary.

A well-supported appeal is a professional regulatory communication.

It explains why the establishment believes the inspection decision should be reconsidered and provides the facts and documentation supporting that position.

Depending on the issue, that may include the applicable regulation, HACCP plan, SSOPs, prerequisite programs, monitoring or verification records, scientific support, photographs, or other relevant documentation.

Keep the appeal clear, factual, specific, and professional.

And remember that timing matters. Under 9 CFR 500.6, initial appeals of applicable FSIS decisions or actions generally must be submitted within 30 calendar days after receipt of written notification. The same 30-calendar-day period applies to subsequent appeals of denied appeals through final Agency action.

Appealing Is Part of the Regulatory Process

Small establishments often have close working relationships with their inspection personnel, and that can make appealing a decision feel uncomfortable.

But respectfully disagreeing with an inspection decision is not the same as being uncooperative.

FSIS recognizes the right of establishments to appeal regulatory decisions and maintains a non-retaliation policy related to regulatory enforcement.

At the same time, establishments must take legitimate noncompliance seriously and address problems when regulatory requirements have not been met.

Not every NR will have a basis for appeal.

The goal is to understand the finding, understand the regulation, review the facts, and make an informed decision about whether there is a sound basis for appeal.

Know the finding. Know the regulation. Know your right to appeal.

The new FSIS online form gives small and very small establishments another way to use that process.

Questions About an NR?

If you have received an NR and are unsure what it means, whether the regulatory citation applies, or whether there may be a basis for appeal, contact the free and confidential AskHACCP Hotline.

Sometimes the first step is simply having someone help you work through the NR before deciding what to do next.