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Script: Appealing Noncompliance Records Part I |
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Intro:
Welcome to USDA’s Food Safety and Inspection Service podcast. Each episode will bring
you cutting edge news and information about how FSIS is working to ensure public health
protection through food safety. While we’re on the job, you can rest assured that your
meat, poultry, and processed egg products are safe, wholesome, properly labeled, and packaged
correctly. So turn up your volume and listen in.
Host:
Welcome. I’m Sheila Johnson with FSIS. In an earlier podcast we discussed noncompliance
records, briefly mentioned your right to appeal, and promised that we would set aside
time for podcasts devoted to the appeals process.
So, with me today is Commander Jeff Tarrant, from the Office of Outreach, Employee Education
and Training, to talk about your right to appeal NRs. He will also be giving you guidance
on how to make an appeal. This is the first of two podcasts on this subject.
Commander Tarrant is a U.S. Public Health Service Officer and has been assigned to FSIS
as a Program Management Officer since February 2005.
His current duties include leading the development and implementation of the FSIS Response
Plan for an Outbreak of Highly Pathogenic Avian Influenza, directing communication efforts
for the Agency’s Human Pandemic Operations Plan; and designing clear-language food safety
and defense training material.
Jeff, thanks for coming by. So, let’s start by discussing plant management’s right to
appeal. Please elaborate a little for us.
Guest:
Well, contrary to what some people may think, FSIS encourages plant management to appeal
decisions that they believe are unfair or inconsistent with applicable standards.
As a matter of fact, the right to appeal is guaranteed by FSIS regulations, specifically,
9 CFR 500, the Rules of Practice; 9 CFR 306.5 for red meat plants; and 9 CFR 381.35 for
poultry.
Plant management can appeal any inspection decision, including NRs. The appeals process
is a way of ensuring that disagreements between plant managers and FSIS inspection personnel
are heard.
Host:
Should a plant be afraid of retaliation if it files an appeal?
Guest:
Absolutely not. FSIS does not retaliate against a plant for filing an appeal. As I previously
stated, we encourage plants to file appeals when there is disagreement, and the regulations
guarantee due process.
Host:
What if a plant feels that there is retaliation, say by the in-plant inspector or IIC?
Guest:
This type of behavior is bad for all of us, and plants should immediately report any incidents
to the District Office. Retaliation or intimidation by any FSIS program employee will
not be tolerated.
Host:
All right, let’s jump into the process itself. Hypothetically, a plant manager receives
an NR, and disagrees with it. What’s the first thing he or she would need to do?
Guest:
Well, first, the plant manager, after careful review of the NR, should decide what it
is that he or she specifically disagrees with.
Plant management may believe that they can demonstrate that the FSIS employee does not
have the correct facts, that the inspector incorrectly applied a regulation or statute,
or that there were facts that were not considered by the FSIS personnel when the findings
were made.
Or, the disagreement may focus more on what is essentially a clerical error, such as trend
indicators, names, dates, times, regulatory citations, etc.
Host:
Okay, why is that important?
Guest:
If a clerical error has been made, it will be corrected by the person who issued the NR,
and the NR will be reissued with the corrected information.
A clerical error isn’t a basis for removing an NR from the system using the appeals process,
unlike a disagreement over the noncompliance itself, but making the clerical changes could
be important to avoid linking NRs that really should not be linked.
Host:
Let’s focus on a disagreement over more than a clerical error.
Guest:
Good idea. If plant management decides they disagree with the NR, they should begin the
appeals process. They can decide to appeal the whole NR, or part of it. The appeal should
be made as soon as possible after the NR is issued.
Host:
What should the appeal include?
Guest:
A narrative explanation of why the plant disagrees with the finding, the NR reference
number, and any supporting documentation or information that the FSIS employee would need
to evaluate the appeal.
Host:
So it’s not enough just to say “I disagree” - you need to explain exactly why, and back
up what you say.
Guest:
Precisely!
Host:
Can the appeal be made orally, or should it be in writing?
Guest:
Well, although it’s not required by regulation, FSIS recommends that plant management
make an appeal in writing whenever possible.
Host:
Why?
Guest:
For one thing, it allows plant management to more fully explain why it believes the inspector’s
decision is wrong, perhaps with more detail and possibly better thought out or well reasoned
arguments.
The written document is also a record of the appeal. And, the written appeal gives the
FSIS program employee something to respond to in writing, instead of a potentially misunderstood
oral appeal.
Plus, in the long run, a written appeal actually saves time, especially as it moves up
the chain of command. You have to remember that, as you move up the chain, time has passed
and the people reviewing your appeal were not in the plant at the time the event occurred.
If the appeal isn’t in writing, the only written account of what occurred at that time
would be on the NR; plant management’s perspective on the events would not have been recorded.
Host:
What if you’re dealing with something like retained fresh product that has a short shelf-life,
or some other time sensitive issue? Wouldn’t an oral appeal be better?
Guest:
Certainly when you’re dealing with a time crunch, you’re probably going to want to make
the appeal orally to ensure that the FSIS program employee evaluates the facts before
a fresh product’s shelf life is jeopardized. A written appeal can be made later.
As a matter of fact, it’s probably a good idea to make your oral appeal, and then go ahead
and start working on your written appeal in case you want to move up the chain to the
next level, or even just to document the appeal, to have a record of it.
Host:
Well, Jeff, thank you for your time today. I think you’ve provided a lot of useful information
for plant managers.
And, thank you all for listening. Tune in next time when we’ll cover the chain of command
and timeframes for responses in the appeals process. For more information on appeals,
or to review what we have discussed in this podcast, please visit
www.fsis.usda.gov.
Outro:
Well, that’s all for this episode. We’d like your feedback on our podcast. Or if you
have ideas for future podcasts, send us an e-mail at
podcast@fsis.usda.gov. To learn more about food safety, try our web site at
www.fsis.usda.gov. Thanks for tuning
in.
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Last Modified: February 10, 2009 |
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