Background

FSIS policy has long allowed inspected establishments to appeal adverse inspectional decisions up the FSIS chain of command. Appeals often involve NRs issued to establishments by inspectors, but any adverse FSIS action may be appealed. Historically, FSIS has encouraged establishments to pursue appeals promptly but has never limited when appeals may be filed. Last year, FSIS proposed creating a uniform time limit of 30 calendar days for appealing Agency inspection decisions and clarifying appeal procedures.1 FSIS explained the overall purpose of the rule was to clarify and simplify appeals generally related to inspections.2

On October 19, 2022, FSIS issued a final rule on the topic entitled Establishing a Uniform Time Period Requirement and Clarifying Related Procedures for the Filing of Appeals of Agency Inspection Decisions or Actions.3 The final rule generally adopted the proposal—including the 30-day time limit to file an appeal—but made a few clarifications in response to comments.

Summary of Final Rule

Under the final rule, inspected establishments will have 30 calendar days to appeal an adverse FSIS inspectional decision or action. The 30-day appeal window begins once the establishment has received written notification of the adverse action or decision.4 This marks a change from the proposal, under which the 30-day clock would have started after an establishment received oral or written notification. The 30-day window will apply to the initial appeal, and establishments will have another 30 days to file further appeals at each step of the appeals process.

The 30-day time limit applies broadly to appeals of any “decision or action of an inspector or other Agency employee related to an inspection activity” under the acts FSIS administers: the Federal Meat Inspection Act (FMIA), the Poultry Products Inspection Act (PPIA), the Egg Products Inspection Act (EPIA); and the Agricultural Marketing Act (AMA) (under which FSIS provides voluntary inspectional services). The scope remains largely unchanged from the proposed rule, except for technical conforming changes to reflect changes to FSIS regulations between when this rulemaking was proposed and finalized.

The activities that would be subject to the 30-day limit include (without limitation):

• appeals of NRs;
• the cancellation of pre-stamping privileges for imported meat and poultry products; and
• sampling test results.

Notably, the rule does not contain a mechanism for extending an appeal deadline. In response to industry comments for a longer appeal time period, FSIS stated that 30 calendar days was sufficient to for companies to respond to Agency actions and decisions.

The final rule takes effect December 19, 2022 (60 days from its publication in the Federal Register).

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Companies operating FSIS-regulated establishments should review their processes for managing FSIS inspectional decisions, especially NRs, to account for the new time limit for filing appeals. It will be important that plant personnel understand the new appeal timeline and that adverse inspectional decisions are assessed for appeal quickly.

We will continue to monitor updates from FSIS. 

References

1 See Hogan Lovells, FSIS proposes unified 30-day timeline for filing inspection appeals (July 15, 2022); 86 Fed. Reg. 37251 (15 July 2021), available at https://www.federalregister.gov/documents/2021/07/15/2021-14947/establishing-a-uniform-time-period-requirement-and-clarifying-related-procedures-for-the-filing-of.

2 86 Fed. Reg. 37251 (15 July 2021), available at https://www.federalregister.gov/documents/2021/07/15/2021-14947/establishing-a-uniform-time-period-requirement-and-clarifying-related-procedures-for-the-filing-of.

3 87 Fed. Reg. 63420 (Oct. 19, 2022), available at https://www.federalregister.gov/documents/2022/10/19/2022-22666/establishing-a-uniform-time-period-requirement-and-clarifying-related-procedures-for-the-filing-of.

4 The language was modified from the proposed rule to exclude verbal notification.