1 

 

Appealing Inspection Decisions

This document is designed to provide information to help small and very small plants understand the process of 

appealing inspection decisions, including: to whom the Appeal should be directed, what documents should be 

included with the Appeal, when to expect a response to the Appeal, and how to make an appeal within the Public 

Health Information System (PHIS). 

What is an Appeal? 

An appeal is a request made to FSIS to reconsider a 

decision made by an inspection program employee. Any 

inspection decision can be appealed, but most commonly 

plants appeal Noncompliance Records (NRs). 

FSIS regulations 9 CFR 306.5 and 9 CFR 381.35 provide 

that meat and poultry establishments may appeal any 

inspection decision, including enforcement actions taken 

in accordance with 9 CFR 500. FSIS regulation 9 CFR 

590.310 provides that egg products plants may appeal any 

inspection decision. Any inspection decision can be 

appealed including:

• An NR: the plant can appeal the whole decision 

or part of the decision; 

• sampling results; 

• any enforcement action taken in accordance 

with the Rules of Practice, 9 CFR Part 500; and

• regulatory waiver suspension and/or 

withdrawal.

The regulations also provide that the appeal of the 

inspection decision may be granted or denied. 

The appeal process is a mechanism for ensuring that any 

disagreements between plant managers and FSIS 

program personnel are reviewed. A plant may file an 

appeal without fear of retaliation. FSIS encourages plants 

to appeal decisions they believe are unfair or are not 

consistent with applicable standards. 

What are the reasons for submitting an Appeal?

An FSIS inspected establishment, plant or its 

representative, may submit an appeal of an inspection 

decision to the immediate supervisor for a variety of 

reasons, including but not limited to, the following:

• The plant representative believes its operation 

was in compliance;

• The plant representative believes incorrect facts 

were used in the noncompliance determination;

• The plant representative believes an incorrect 

regulation was cited; or

• The plant representative believes other facts 

were not considered by the inspection program 

personnel (IPP) prior to the determination of the 

noncompliance.

The appeal process can be beneficial for both plant 

management and IPP. An appeal can start a 

conversation between plant management and 

inspection personnel that may lead to improved

understanding of the food safety systems and 

associated regulations, by both parties. For example, 

an appeal may uncover a long held misunderstanding 

of a regulation by the plant or inspector that can be 

clarified by the appeal process. 

The appeal process can also be an opportunity for 

IPP to inform plant management of the numerous 

FSIS resources that are available to plant 

management (e.g., compliance guidelines). 

Plant management can appeal the entire NR or only a 

part of the NR. The plant’s appeal should clearly state 

the particular finding or findings that the plant is 

appealing.

Plants can appeal particular documentation errors

(e.g. incorrect regulatory citations, dates, names, or

times). However, if there is no disagreement that the 

underlying noncompliance existed, the NR will be 

corrected by the program employee and reissued.

What is the Chain-of-Command for Appeals?

The appeal process follows the FSIS Office of Field 

Operations (OFO) chain-of-command. 

The chain-of-command ensures that those 

supervisory personnel most familiar with the facts 

associated with the appeal evaluate the appeal first to

minimize response time. The chain-of-command also 

allows a plant to appeal to the next highest level if 

unsatisfied with an appeal outcome. 

Food Safety Information
2 

Before filing a formal appeal, plant management are 

encouraged to discuss any concerns with the original 

decision maker or author of the NR. This step serves as 

a means to resolve the issue at the lowest possible level 

and to avert the need for plant management to initiate a 

formal appeal. If the issue cannot be resolved through this 

discussion, plant management can begin the formal 

appeals process with the immediate supervisor of the 

program employee that made the decision.

If the appeal is denied, the plant can continue the appeal 

through the chain-of-command which is explained in the 

corresponding section on page four (4). 

Key point:

The chain-of-command for appeals starts with the 

immediate supervisor of the program employee that made 

the decision.

The OFO chain-of-command for appeals is:

1. Immediate Supervisor (e.g., Supervisory

Consumer Safety Inspector (SCSI), Inspector-In-Charge 

(IIC), Public Health Veterinarian (PHV) or Multi-IPPs 

Supervisor of the person who made the original 

determination);

2. Frontline Supervisor (FLS) (sometimes the

immediate supervisor is the FLS); 

3. Deputy District Manager (DDM) / District

Manager (DM); 

4. Executive Associate for Regulatory Operations

(EARO); 

5. Deputy Assistant Administrator/Assistant

Administrator for OFO; and

6. Administrator for FSIS.

The FSIS goal is to resolve an appeal at the lowest 

supervisory level possible. Therefore, for an appeal to be 

reviewed by upper levels of supervision, it must first be 

reviewed by all lower supervisory levels and follow the 

chain-of-command.

How is an Appeal Submitted?

The plant may submit appeals to NRs electronically 

through PHIS, or it can present them either in writing or 

orally for any inspection decision. The FSIS program 

employee evaluating the appeal is not always located at 

the plant and was not likely present at the time the event 

occurred. If the appeal is not in writing (or in PHIS), FSIS 

will need more time to gather all the necessary facts 

needed to evaluate the appeal.

A. PHIS/ELECTRONIC SUBMITTAL

FSIS recommends that plant management use PHIS 

as its mechanism to appeal NRs, whenever possible, 

although using PHIS is not required by regulation. 

Using PHIS allows plant management to create an 

electronic record that documents their concerns and 

to include any supporting documents by scanning 

them into the PHIS system. PHIS facilitates a timely 

response to the appeal and reduces the possibility of 

miscommunication. It also creates a record of the 

appeal that can be used by plant management if the

plant later decides to appeal through additional 

supervisory levels. Only NR appeals may be 

submitted through PHIS for consideration. Appeals 

for inspection decisions other than NRs, must be oral 

or in writing and cannot be made through PHIS.

When plant management elects to submit appeals

electronically through PHIS, they need to follow the

step-by-step instructions provided in the 

Establishment Management Users Guide – 

Public Health Information System. The plant 

management’s submission should include all 

documents necessary for FSIS personnel to make 

a decision as listed on page three (3) of this 

document. 

Note: NR appeals utilizing PHIS can only be made to 

the chain-of-command level of the DDM / DM. 

Appeals to the EARO, OFO Deputy Assistant 

Administrator, OFO Assistant Administrator, or the 

FSIS Administrator must be presented directly to that 

official (orally or in writing) and cannot be made

through the PHIS system. 

B. WRITTEN APPEALS

An appeal can be made in writing (including email) if 

plant management does not submit the appeal 

electronically through PHIS. A written appeal allows 

management to explain why it believes the FSIS 

program employee’s decision is incorrect.

Plant management will need to submit the written 

appeal, and any associated documents, to the 

immediate supervisor of the author of the NR either 

on paper or electronically via email. The supervisor 

will provide a response within the time frames listed in 

the appeal response timeline discussed on the next 

page.

C. ORAL APPEALS

Oral appeals are allowable. FSIS recommends that if 

plant management presents an oral appeal, that the

appeal is also entered into PHIS, or submitted in 

writing to avoid miscommunication. 
3 

How long does the plant have to submit an 

Appeal after a decision is made?

The plant is not required to submit an appeal within a 

specific timeframe. While 9 CFR 381.35 does indicate 

that appeals from poultry establishments must be 

submitted within 48 hours from when the regulatory 

decision was made, FSIS will accept appeals from poultry 

plant management at any time in order to be consistent 

with the appeals procedure cited in 9 CFR 306.5 and

590.310. In addition, plants can appeal an NR even if it is 

designated as “NR Completed” in PHIS. However, if a 

plant decides to appeal an inspection decision, it is 

important to submit the appeal, and all necessary 

supporting information, to the immediate supervisor as 

soon as possible after the inspection decision has been 

made in order to ensure a timely response to the appeal 

request.

Key Point:

There is no specific timeframe in which an appeal must be 

made.

What documents should be submitted with the 

Appeal?

When plant management decides to appeal an inspection

decision they need to include all the necessary supporting 

documents that should be considered for the FSIS 

supervisor to make a timely decision concerning the 

appeal. The following supporting information should be 

uploaded into PHIS or included with the written appeal:

• The original NR, if the appeal is not made

through PHIS;

• A narrative explanation of why plant management

disagrees with the inspection decision;

• A copy of any and all previous appeal responses

from IPP; and

• Any records (HACCP, Sanitation SOP, or other

prerequisite program) that may contain relevant

information on the issue being appealed that may

assist the supervisors in evaluating the situation

under appeal.

How long does it take for the Agency to respond 

to an Appeal?

FSIS recognizes that plants want a response to appeals 

as soon as possible, especially when an appeal involves 

retained product or operational restrictions. Time is 

needed for program employees to become familiar with 

the facts as an appeal moves up the chain-of-command. 

FSIS provides responses as soon as possible and 

tries to provide responses within the timeframes 

below. However, because each case presents a 

unique set of facts that require consideration, the 

response times may be extended:

1. Immediate Supervisor of the author who

made the original determination response -

Within 2 weeks from receipt of appeal.

2. FLS response - Within 2 weeks from receipt of

appeal;

3. DDM/DM - Within 2 weeks from receipt of

appeal;

4. EARO response - Within 30 days from the

receipt of the appeal;

5. OFO Deputy Assistant Administrator / OFO

Assistant Administrator response - Within 30

days from the receipt of the appeal; and

6. FSIS Administrator response - Within 30 days

from the receipt of the appeal.

If a plant does not receive a decision within the above 

timeframe, the plant should contact the FSIS program 

employee to whom the appeal was addressed to for 

an explanation. The plant should contact the 

individual at the next level of the OFO chain-ofcommand when unsatisfied with the explanation.

What happens if the NR Appeal is granted?

If the FSIS program employee concludes that the 

appeal will be granted, the action will be noted in 

PHIS, following the instructions in FSIS Directive 

13000.3 Responding in PHIS to Industry Appeal of a 

NR, to remove the NR from the file, and any tags will 

be removed. If the appeal is submitted through PHIS, 

the response is to be entered into PHIS. If the appeal 

is outside PHIS (e.g., oral or in writing), the response 

is to be provided in writing to plant management and 

also entered into PHIS. 

When the NR is rescinded officially, the plant should 

be given a copy of the rescinded NR documents. In 

some cases the NR will be modified with the 

appropriate changes to address the appeal. For 

example, if only a portion of the NR was appealed, 

and the FSIS supervisor agreed that the portion of the 

NR appealed did not describe noncompliance, the 

appeal would be denied but the NR would be 

modified to remove the specific text and the NR 

would be reissued. 
4 

What happens if the NR Appeal is denied?

If the program employee denies the appeal, the plant has 

the right to appeal to the next level in the chain-ofcommand. The appeal should be made in the same 

manner as at the previous level. The appeal should 

include a copy of each lower level appeal responses and 

provide a narrative of why the plant management believes 

each lower level appeal decision was flawed. An appeal to 

each level in the chain-of-command follows the same 

process.

Is FSIS’s Appeal response written?

Yes, the FSIS response is always in writing and explains 

the basis for the decision. Plants will receive a written 

response to an appeal when it is either granted or denied. 

If a plant does not receive a written response, the plant 

should contact the FSIS program employee to whom the 

appeal was directed to for an explanation and to request a 

written response. If the plant still does not receive a written 

response, they are to contact the next person in the OFO 

chain-of-command to request the written response. 

What effect does an Appeal have on an 

associated NR?

If an appeal of an NR is granted, and the NR is rescinded, 

any association between that NR and another NR is also 

rescinded. If only a portion of the appeal was granted, 

and that granted portion included the cause used to 

associate the two NRs, that association is rescinded. On 

the other hand, if the cause used to link the two NRs is 

upheld, the association stands.

If a plant receives an NR and decides not to appeal, that 

NR later can be associated with another NR.

Can the plant appeal a regulatory control action 

to have product released?

Yes. 9 CFR 500.2(c) provides that a plant may appeal a 

regulatory control action, as provided in 9 CFR 306.5, 

381.35, and 590.320. 

Can the plant appeal sampling results? 

Yes. If the plant has reasons to believe the sampling or 

testing methodology was not implemented consistent with 

Agency policy, they may appeal the results to the 

supervisor of the program employee that collected the 

sample. The appeal process for sampling results is 

exactly the same as it is for other inspection decisions. 

If plant management decides to appeal sampling results, 

they should follow the procedure for submitting an appeal 

orally or in writing as found on page two (2) of this 

document. However, a sample result appeal cannot 

be made through PHIS. Plant management should 

include:

• The specific Laboratory Information

Management System (LIMS) Direct form for

the sample result being appealed. If the

form is not available, plant management

should include the form number, project

code and collection date for the sample

submission that is being appealed.

• Reason(s) that plant management believes

the sample results are incorrect.

• Any documentation (e.g. photographs) which

supports plant management’s viewpoint.

Plant management and FSIS personnel may seek 

assistance from the Office of Policy and Program 

Development (OPPD) Risk, Innovation and 

Management Staff (RIMS) and the Office of Public 

Health Science (OPHS) personnel to provide 

interpretation of the issues. However, the decision 

to remove the sample result will be made by the 

supervisory chain-of command. Therefore, the 

interpretations provided by these offices are not to 

be considered as denying or granting an appeal. If 

the request to remove the sampling result is denied, 

plant management may choose to continue its 

appeal to the next higher level in the chain-ofcommand as indicated on page two (2) of this 

document.

Can a Notice of Intended Enforcement 

Action (NOIE) or a Notice of Suspension 

(NOS) be Appealed? 

9 CFR 500.5 (b)(4) provides that a plant may appeal 

the basis of either an oral or written withholding 

action or suspension with prior notification (i.e., 

NOIE). The procedure is similar to an NR appeal, 

but includes the following differences: 

1. A plant appeals the NOIE directly to the

EARO supervising the DM that signed the letter; 

2. The plant must respond to the NOIE within

three (3) business days (64 FR 66546) even 

though the NOIE, or a portion of it, is being 

appealed. The failure of the plant to provide 

corrective actions to the NOIE within three business 

days may result in a suspension of the plant.

3. Although not required, the appeal should be

in writing, because the issues associated with 

the NOIE/NOS are usually too complex or 

extensive to be communicated orally.

4. The appeal should provide an explanation of

why the plant disagrees with the NOIE/NOS

findings, including the date that the NOIE/NOS 

was received and any documentation supporting 
5

the explanation that management believes will assist 

FSIS in evaluating of the situation under appeal.

As a means to encourage open communication and good 

business relationships, if the plant feels the NOIE/NOS is 

not justified, it should discuss the NOIE/NOS with the 

District Office prior to submitting a formal appeal to the 

EARO. This step serves as a means to resolve the issue 

at the lowest possible level and to avert the need for the 

plant management to initiate a formal appeal.

NOTE: In response to an NOIE/NOS appeal, the DM may 

enforce the NOIE/NOS as written, rescind part of the 

NOIE/NOS, or rescind the entire NOIE/NOS.

The OFO chain-of-command when appealing an NOIE or 

NOS is the following: 

1. EARO

2. Deputy Assistant Administrator/Assistant 

Administrator for OFO; and

3. FSIS Administrator

Key Point:

Even if the plant appeals an NOIE, it must provide a 

response to the NOIE within three (3) business days, even 

if appeal decision has not been determined. The failure to 

provide a response within the required time period may 

result in a suspension of the plant.

As is stated in 9 CFR 500.5, if the plant is suspended it

may also request an official hearing on the matter. Details 

on how to request a hearing are included in the NOS 

letter. 

Can the plant Appeal an administrative action 

concerning a Waiver?

Under 9 CFR 303.1(h), 9 CFR 381.3(b), and 9 CFR 

590.10, the FSIS Administrator may, in specific cases, 

waive provisions of the regulations for limited periods in 

order to permit experimentation so that new procedures, 

equipment, and processing techniques may be tested to 

facilitate definite improvements, provided that such 

waivers of the provisions of such regulations are not in 

conflict with the purposes or provisions of the Acts.

Most commonly, waivers are issued for new technology 

and through the Salmonella Initiative Program (SIP) in 

accordance with FSIS Directive 5020.1, Verification 

Activities for the Use of New Technology in Meat and 

Poultry Establishments and Egg Product Plants. FSIS may 

revoke a waiver of regulatory requirements when a plant

fails to maintain or follow its alternative procedures 

associated with the waiver.

The process for appealing a waiver revocation is 

similar to the process for NOIE appeals, as described 

on page four (4). The OFO supervisory chain-ofcommand may obtain policy and regulatory 

clarification from RIMS concerning the technical 

aspects of the appeal. Once a decision has been 

made the OFO chain-of-command will supply plant 

management with the written appeal decision.

The chain-of-command when appealing the 

revocation of a waiver is the following: 

1. EARO

2. Deputy Assistant Administrator/Assistant 

Administrator for OFO; and

3. FSIS Administrator

OPPD/RIMS may withdraw the plant’s waiver. Plant 

management may appeal the withdrawal/termination 

of the waiver. The process for appealing the 

withdrawal of a waiver is similar to the process for 

other appeals; however, the chain-of-command is 

different. When a plant’s waiver is withdrawn, plant 

management may appeal that decision through the 

OPPD supervisory chain-of-command. 

The chain-of-command when appealing the 

withdrawal/termination of a waiver is the following:

1. Deputy Assistant Administrator/Assistant 

Administrator for OPPD; and

2. FSIS Administrator

Appeals for a withdrawal or termination of a waiver 

can be oral or in writing. Written appeals are 

preferred to ensure a clear understanding of the 

issues and to expedite the appeal response. 

The appeal should provide an explanation of why the 

plant disagrees with the withdrawal/termination 

including the date that the action occurred and any 

documentation supporting the narrative explanation 

that management believes will assist FSIS in 

evaluating the situation under appeal.

If the FSIS supervisory chain-of-command denies the 

appeal, plant management has the right to appeal to 

the next level in the chain-of-command. The contact 

information for the next supervisory level in the chainof-command will be provided to plant management in 

the denial documentation. The appeal should be 

made in the same manner as at the previous level.

The appeal should include a copy of each lower level 

appeal responses and provide a narrative of why 

plant management believes each lower level appeal
6 

decision was incorrect. An appeal to each subsequent 

supervisory level in the chain-of-command follows the 

same process.

The following checklists provide suggested questions for plant management to consider when preparing and 

submitting an appeal.

Plant Checklist for Submitting an NR Appeal through PHIS.

Question Yes No Notes

Have you provided a comprehensive

explanation detailing:

• Why you believe your plant was in

compliance

• Which facts contained in the NR

are questionable

• Which regulations cited in the NR

are not applicable

• What facts were not considered by

IPP prior to determining

noncompliance

Have you included (uploaded) a copy of all 

pertinent documents to support your 

position? This could include:

• HACCP, Sanitation SOP or other

prerequisite records

• Written programs

• Employee training materials

• Scientific supporting

documentation

Have you followed the procedures for filing 

an appeal through PHIS contained at: 

Establishment Management Users Guide –

Public Health Information System
7 

Plant Checklist for Submitting a written NR Appeal, not through PHIS

Question Yes No Notes

Have you determined who the NR author’s 

supervisor is or who the next supervisor in 

the chain-of-command is?

Have you provided an detailed explanation 

detailing:

• Why you believe your plant was in 

compliance

• Which facts contained in the NR 

are incorrect or questionable 

• Which regulations cited by the NR 

are incorrect or not applicable

• What facts were not considered by 

IPP prior to determining 

noncompliance

• Have you included a copy of the 

NR that you are appealing?

Have you included (uploaded) a copy of all 

supporting documentation to support your 

explanation? This could include:

• HACCP, SSOP and/or prerequisite 

records 

• Plant written programs 

scientific supporting 

documentation

• Have you included a copy of the 

previous appeal response to this 

appeal?
8 

Important Links

FSIS Directive 13000.3 Responding in PHIS to Industry Appeal of a NR

Key Agency Contacts (see Office of Field Operations) 

http://www.fsis.usda.gov/wps/portal/informational/contactus/phone/key-agency-contacts

Interactive Knowledge Exchange (IKE) Scenarios 

http://www.fsis.usda.gov/wps/portal/fsis/topics/inspection/workforce-training/

ike-scenarios/ike-scenarios

Small Plant Help Desk

https://askfsis.custhelp.com/

Public Health Information System

http://www.fsis.usda.gov/wps/portal/fsis/topics/inspection/phis

Executive Orders, Small Business Protection Laws & Policies on Regulatory 

Decisions http://www.fsis.usda.gov/wps/portal/fsis/topics/rulemaking/executiveorders-small-business-protection-laws-and-other-guidance

Small Business Protection Laws 

https://www.sba.gov/

Small Business Administration (SBA) Office of National Ombudsman

Small business owners may contact the Office of National Ombudsman at 1-888-

REGFAIR (1-888-734-3247) or www.sba.gov/ombudsman regarding the fairness of 

the compliance and enforcement actions of FSIS. 

Contact the Small Plant Help Desk by telephone at 1-877-FSISHelp (1-877-374-

7435) or via email at InfoSource@fsis.usda.gov or contact the Office of Policy and 

Program Development through askFSIS at http://askfsis.custhelp.com/ or by 

telephone at 1-800-233-3935. 
9 

Food Safety and Inspection Service USDA is an equal opportunity provider, employer, and lender.

September 2016