NMA Convention Report: Tips for appealing NRs
Feb. 16, 2012
by Joel Crews
TUCSON, Ariz. – A day after snow showers welcomed early arriving attendees to the National Meat Association’s Annual Convention, the topic of evaluating and appealing noncompliance records (NRs) was tackled in a presentation by Norm Robertson, NMA’s director of regulatory issues.
Robertson made the point that data collected and analyzed by Food Safety and Inspection Service officials is now part of the US Department of Agriculture’s Public Health Information System (PHIS), and federally inspected plants in all districts are now on line. He said exercising the right to critically review and appeal inspection decisions are important because they become a part of public record, are used to support enforcement actions and are used to document trends.
Under the PHIS, there are 564 possible regulatory citations to be used on NRs, 61 of them are categorized as “strongly related to public health,” Robertson said. These are termed W3 when used on an NR.
Some data that will become part of PHIS will likely be “less than objective,” he said, due to varying levels of training and knowledge from one inspector to the next and discrepancies that exist among different circuits and even districts. He said the appeal process is critical when evaluation genuinely indicates a noncompliance has been mistakenly issued.
“If you do not appeal, the agency assumes you don’t disagree,” and the NR is fact-based and assumed to include objective data. “If you don’t push back, the logical conclusion is that the findings are correct,” he said, and once FSIS initiates action based on the NR, it’s too late to appeal.
Tools to use for critical evaluation, appeal and compliance guidelines are available online and attendees were urged to contact NMA staff and consultants to access these resources.
As for formulating an appeal once critical evaluation verifies that is a valid course of action, processors were advised that they could try a verbal appeal first with the author of the NR, but that it is best to put all appeals in writing, using company letterhead. Robertson recommended that processors should start with an opening paragraph stating what it is that is being requested, whether it is to rescind or modify a decision. He also said it is best to bullet point each appeal point and designate a bullet for each citation, explaining why each citation is not appropriate. “Give enough information for each to paint a clear picture,” he said. The conclusion of the appeal should restate what it is that is being requested and that any supporting material be sent as attachments to the appeal, including any previous correspondence with FSIS. Processors were urged to register appeals as close to the time of the alleged noncompliance as possible.
Robertson also pointed out that throughout the appeals process that the emphasis should be on the facts, and not focused on speculation or personal issues about the inspector.
“Avoid inflammatory statements,” he said, “and stay professional” throughout the process.