Responding to an NR
By Lynn Knipe, Ohio State University
I have been receiving quite a few questions about NRs (Non-Compliance Reports) from plants outside of Ohio and the Chicago FSIS district lately. In most cases, these companies are asking me what they should do about an NR they have received. These companies sense that the NR may be inappropriate, but have never appealed an NR before and are looking for another opinion on the issue. Often, these companies are uncomfortable with the appeal process and are looking for some encouragement and support to get past the point of intimidation. I have not been getting as many of these questions from Ohio plants, and am wondering if the inspection process in Ohio is that much better than the rest of the country or if some of you have received NRs that you weren’t sure how to address.
Receiving an NR means that someone in the inspection process has found a point of non-compliance somewhere in the process. Each NR should reference only one regulatory document, however, there may be more than one issue identified as non-compliance related to each regulation. So, upon receiving an NR, you need to read it carefully to make sure you understand the non-compliance that is described in the NR. You need to be familiar with the FSIS regulations, or where/how to find them, as NRs will reference the regulatory document that your establishment is in violation of. After carefully reading the NR, you need to decide:
1. Did the FSIS/ODA employee have the correct facts?
2. Were there facts that were not considered by the FSIS/ODA employee when the NR was written?
3. Was the correct regulation applied to your situation?
4. Was the non-compliance issue adequately supported in the NR?
After considering these questions, if you take issue with any of the above points, and disagree with the NR, you need to communicate this back to meat inspection. There may also be clerical errors that make an NR appealable, however, once the clerical errors were corrected, you can assume that the NR would be re-issued. Don’t forget that upper administration in Meat Inspection may find your NR as inappropriate as you do, but if you don’t appeal it, they may never see what was written on your NR. Inspection personnel are humans too, meaning that they can make honest mistakes, as well as less honorable decisions. If your inspectors know that you are comfortable with appealing, they may be more careful the next time that they write an NR at your establishment. If you have an NR that you disagree with, I would recommend first that you verbally ask the person who wrote the NR to rescind the NR and explain the reason behind your request.
If you are not successful with a verbal request to rescind the NR, the next step would be to appeal the NR in writing. Typically, you would submit the written appeal to the inspection employee who originally wrote the NR, however, you have the right to submit the written appeal to that person’s supervisor if you prefer. There may be valid reasons for submitting an appeal to the supervisor, however, it may also slow up the process, as the supervisor will likely not be as familiar with the situation.
A written appeal should include the NR reference number, an explanation of why you disagree with the NR along with the supporting documentation that is needed to make your point. If you are dealing with raw product or product with a short shelf life, you might first appeal verbally, while you prepare the written appeal. It is always better to appeal in writing whenever possible. Appeals need to follow the chain of command, starting with the person who wrote the NR.
In writing your response in an appeal, be sure to address the regulation that with which you are not in compliance, and provide any and all documentation that will support your position. If you have questions about this process, don’t hesitate to contact me (614-292-4877 or firstname.lastname@example.org). I would also encourage you to go to AskFSIS to ask questions to get a more official FSIS response to your questions. I was skeptical at first of the AskFSIS process, but have been much happier with it, since I have been using it, than I ever thought I would be.
Above all, be professional in your requests to rescind NRs or your NR appeals. You can expect your inspectors to be fair, firm, and professional, but you need to treat them the same way, particularly in a written response. Some of you might be concerned about retaliation by inspectors, if you appeal. Both FSIS and ODA have procedures to deal with this in the event it should happen, but again you would need to communicate incidents of retaliation to the FSIS District Office or the ODA Central Office.
If the appeal is granted, the NR will be deleted. If the appeal is not granted, and you are not satisfied with the results of the first appeal, you should then submit it to the next higher level. The chain of command in the federal system is:
1. Inspection employee who wrote the NR (e.g. Consumer Safety Inspector (CSI), Public Health Veterinarian (PHV), Inspector in Charge (IIC))
2. PHV IIC or Mini-Circuit Supervisor
3. Frontline Supervisor (FLS)
4. District Manager
5. Executive Associate for Regulatory Operations
6. OFO Assistant Administrator
7. FSIS Administrator
The chain of command for the state meat inspection program is:
1. Inspector-in-Charge who wrote the NR.
2. Regional Veterinarian (PHV) or District Supervisor
3. Division Chief
At some point, inspection personnel will want to close out an NR, which means that they agree that there is no longer a non-compliance situation. In order to get to that point, you need to either sufficiently address the non-compliance issue or have been granted an appeal to the NR. I would encourage you to never allow an NR to be closed out, based upon a written agreement between you and your inspector, that involves your signature.
You can appeal any decision made by inspection personnel related to your establishment, such as product condemnation, NOIEs, etc. For more information on appealing NRs or other inspection decisions, you can access the Compliance Guideline for Small and Very Small Plants Appealing Inspection Decisions, at: fsis.usda.gov/PDF/SVS_Appeals_Guidelines.pdf