In federally inspected meat and poultry plants, the issuance of a Noncompliance Record (“NR”) can often feel routine. In most circumstances, an onsite federal inspector observes a regulatory violation, and then documents the observation in an NR. Plant management will typically respond promptly, and production will rarely be affected. But, treating an NR as simply “routine paperwork” can be a costly mistake.

While a single NR rarely triggers significant enforcement action, a series of unchallenged NRs can quietly build a regulatory record that supports much more serious enforcement under FSIS rules. For meat and poultry establishments, understanding when and how to appeal an NR can be the difference between resolving an isolated inspection disagreement and facing a potential Notice of Intended Enforcement (“NOIE”) months later.

This is because NRs form the basis and foundation of FSIS’ enforcement record. FSIS inspectors issue NRs when they believe that an establishment has failed to comply with regulatory requirements, whether related to HACCP implementation, sanitation procedures, or other regulatory obligations. From the agency’s perspective, NRs do more than simply document alleged individual violations. They also help inspectors identify patterns or trends of noncompliance.

Under the regulations, FSIS may initiate escalated enforcement actions when an establishment’s food safety system appears inadequate due to multiple or recurring issues of noncompliance. When this occurs, the agency may conclude that the issue is no longer an isolated deviation but, rather, a systemic failure of the establishment’s overall food safety system.

Such determinations often begin with a stack of NRs that were never challenged. Many plants choose not to appeal NRs because they believe that the issue is minor, challenging the determination is not worth the effort, or they may anger or upset inspection staff. In other cases, establishments may simply decide to focus on correcting the issue, instead of formally disputing the inspector’s characterization of the event.

While such a limited response may feel practical in the short term, it can create problems later. When an NR is issued and not appealed, the agency may interpret the acquiescence (correctly or in correctly) as the establishment having admitted to the inspector’s determination that a regulatory violation occurred. Over time, a series of unappealed NRs, if they relate to similar or recurring issues, could potentially support an argument that the establishment has an ongoing compliance problem.

That narrative often appears again later in enforcement letters. When FSIS issues a NOIE or similar enforcement action, the agency typically cites prior NRs as evidence of repeated noncompliance, and argues that earlier corrective actions failed to resolve the underlying issue. In other words, the enforcement action rarely begins with the NOIE – It usually begins months earlier, starting with the first NR that went unchallenged.

Fortunately, the regulations provide establishments with the ability to appeal inspection decisions. When an establishment believes an NR is factually incorrect, based on a misunderstanding of plant procedures, or inconsistent with regulatory requirements, filing an appeal allows the issue to be reviewed by higher-level FSIS supervisory personnel. In many cases, appeals can lead to clarification, modification, or withdrawal of a NR. More importantly, appeals help ensure that the regulatory record accurately reflects what actually occurred. Even if the appeal is denied, at least the plant is on record with own version of the events.

While appeals should not be used wildly to create conflict with FSIS, they can and should be used to ensure that the regulatory record accurately reflects the establishment’s compliance efforts. This is because, when FSIS evaluates whether an establishment’s food safety system is functioning properly, the agency does not simply look at the most recent single event. It looks at the entire record. And, unfortunately, that record is constantly being built one NR at a time.