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Script: Notice of Intended Enforcement, Part 1, Rules of Practice and Enforcement Actions |
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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. Joining me in the studio
is Joan Collins, a program manager in the Office of Field Operations. She assists senior
program officials in providing guidance and direction to FSIS District Offices throughout
the country, ensuring that meat, poultry, and egg products are produced in accordance
with the statutes and the Agency's food safety regulations.
Joan has been with FSIS for more than 20 years and has a great deal of experience training
front line supervisors on the statutes, Rules of Practice and administrative enforcement.
This is the first of four podcasts about the Notice of Intended Enforcement Action, or NOIE.
We will start with the Rules of Practice as they pertain to the types of enforcement actions
that FSIS may take.
Next week, we'll discuss the factors that determine when FSIS is required to notify plant
management before it takes an enforcement action. The last two podcasts will focus on the options
plants can take if they receive an NOIE.
Joan, thanks for joining us today. Let's start with an explanation of what an NOIE is.
Guest:
Sure, Sheila. I'll start with the basics, the Rules of Practice,
which can be found in Title 9 of the Code of Federal Regulations, Section 500.
The Rules of Practice in Section 500 are the regulations that identify the conditions under
which FSIS can take enforcement in a plant, as well as the types of enforcement actions that
can be taken. They also describe the requirements for notifying plant officials of the enforcement
and for providing plant officials the opportunity to respond to the action taken.
The Rules of Practice also help to ensure that those plants regulated by the Agency receive due
process rights under the law. They also provide a procedure that helps to ensure that FSIS
enforces regulations in a fair and consistent manner.
Among other things, the Rules of Practice define the three types of enforcement actions that FSIS may take.
Host:
Okay, what are the three types of enforcement actions?
Guest:
They consist of the regulatory control action, the withholding action,
and the suspension.
Host:
Would you tell us more about each type?
Guest:
Sure. A regulatory control action is the type of enforcement that
most plant owners and operators are familiar with. It involves the retention of product,
rejection of equipment or facilities, slowing or stopping of lines, or refusal to allow the
processing of specifically identified product.
These types of actions are taken when immediate correction of a deficiency is required. Plant
management does not have to be notified in advance. However, according to 9 CFR 500, once
the action is taken, FSIS inspectors must notify plant management immediately.
The inspectors may notify plant management orally or in writing using a noncompliance record, or NR.
Host:
Now, the NR is something I'm familiar with.
We've had a couple of podcasts previously on how to avoid receiving noncompliance records.
Plant management has the right to appeal the NR and the regulatory control action, correct?
Guest:
Absolutely! Any regulatory or enforcement action that FSIS takes at a
plant may be appealed through supervisory channels. And that right is provided for in the FSIS
regulations.
Host:
OK. Let's move on to the next type of enforcement action which I
think you said was a withholding action.
Guest:
A withholding action is the refusal to allow the marks of inspection
to be applied to products. A withholding action may affect all product in the plant or only
product from a particular process.
This is considered a more severe type of enforcement than a regulatory control action because it can
affect a larger part of a plant or plant's processes.
It's only taken after careful evaluation of the facts. The decision to take an immediate
withholding action can be made by whoever is in charge for FSIS at the plant, such as the
Inspector-in-Charge or his designee.
Under the Rules of Practice, plant management has the right to appeal withholding actions.
Host:
Okay, and now for the last type of enforcement action, the suspension.
Guest:
A suspension action refers to an interruption in the assignment of FSIS
inspectors to all or part of a plant. A suspension of inspection may have a severe impact on an
establishment for a couple of reasons.
First, a suspension usually lasts longer than a withholding action. Second, federally inspected
establishments cannot legally apply the marks of inspection to product without an assigned inspector,
so this action may stop all production. Like withholding actions, suspensions are only taken after
careful evaluation of the facts. And they can also be appealed under the Rules of Practice.
Host:
Now that we've covered the types of enforcement actions the Agency can
use, let's get back to where we were in the beginning of this podcast — remind us what an NOIE is?
Guest:
An NOIE is issued to a plant for noncompliances that do not pose an
imminent threat to public health but may warrant withholding the marks of inspection or suspending
the assignment of inspectors if not corrected.
Host:
So if there isn't an immediate threat to public health, FSIS will notify
the plant owner or operator before the action is taken rather than just immediately taking a
withholding or suspension action?
Guest:
Correct! However, the Rules of Practice do give the Agency
authority to take a withholding or suspension action without prior notification in eight
specific situations…
Host:
And we'll be discussing those situations in next week's podcast.
Guest:
Now, for any situations other than those eight that the Rules of
Practice specifically state don't require prior notification, FSIS is required to give prior
notification before taking any enforcement action. The NOIE is the written format the Agency
uses to fulfill that requirement.
Host:
Why do the Rules of Practice require prior notification in some
situations involving withholding and suspension actions?
Guest:
Prior notification provides plants with due process rights. FSIS
compiles an extensive amount of thoroughly analyzed information prior to taking a withholding or
suspension action. Prior notification gives plant management the opportunity to review that
same information before the action is taken in situations that do not pose an immediate threat to public health.
Plant management then has an opportunity to provide a response to the notification, point out any
factual errors made by FSIS, identify scientific or technical disagreements, and articulate
differing interpretations of regulatory requirements. And, as discussed earlier, plant management
also has the right to appeal the intended enforcement action.
Again, we'll be talking about options plants have in response to an NOIE in the last two podcasts of
this series.
Host:
Well, we've come to the end of today's podcast. I believe you've given
us a good start to understanding enforcement actions and NOIEs.
I look forward to the second podcast in this series when we'll discuss the requirements for prior
notification. Thanks for coming, Joan.
Guest:
My pleasure!
Host:
And to all of our listeners, be sure to stay tuned to the FSIS web
site at www.fsis.usda.gov for our next podcast on NOIEs.
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: May 20, 2009 |
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