If you believe a USDA inspection is incorrect and does not properly describe the condition of your produce at the contract destination, you have the right to request and obtain an Appeal USDA inspection to recertify the quality or condition of your product. When an Appeal inspection is secured it must be performed by a supervisor (USDA inspector) or two different inspectors, and never by the same inspector who performed the first inspection. Also either the supervisor or two inspectors will double the customary number of samples used in the first inspection in order to give a more accurate reading of defects. The results of the Appeal inspection will either uphold or overturn the first inspection. When the appeal inspection upholds the first inspection, the cost of the appeal inspection is borne by the applicant; however, if the appeal overturns the first inspection there is no charge for the appeal. Obviously, by requesting an Appeal inspection it is with the intent that it will overturn the first inspection, and prove that your product met contract specifications upon arrival. In the same vain your buyer may also request an Appeal inspection it he or she is dissatisfied with the results of the first inspection. An appeal inspection may be requested by any financially interested party or the PACA Branch may request an appeal inspection when the results of the original inspection are in question. Appeal inspections are taken very seriously by the USDA, and every appeal inspection is reviewed by the USDA/AMS Specialty Crop Inspection Division Headquartered in Washington D.C.
If, as a shipper you wish to request an Appeal inspection you must request it immediately after you become aware of the results of the initial inspection. Timeliness is imperative in securing an Appeal. You must immediately advise your buyer not to move or sell any of the product that you shipped so it can be available for the Appeal inspection process. In the event you timely place your customer on notice not to sell or move any of the product and they do, your customer could be held responsible to you for full payment because of the fact your right to have an appeal inspection had been taken away. In addition if your customer fails to give you timely notice of an inspection, and your customer has started selling portions of the load or lot, it has been ruled by the PACA that the buyer would be barred from using the inspection to prove a breach of the warranty of suitable shipping condition because the buyer took away your right to obtain an Appeal inspection. It was ruled in a previous PACA Decision that, Notice of inspection provided to the shipper on the date of inspection was considered untimely where provided after more than half of the shipment was resold, as the shipper was deprived of the opportunity for an appeal inspection. Quail Valley Marketing, Inc. v. John A. Cottle d/b/a Valley Fresh Produce, 60 Agric. Dec. 318 (2000).
Pursuant to the PACA a request for an appeal inspection will be accepted when:
- Pursuant to the PACA a request for an appeal inspection will be accepted when: The lot is positively identified as the lot previously certified by means of trailer license, car or van number or approved Federal or Federal-State Positive Lot Identification.
- The lot is misbranded and is positively identified.
- The complaint concerns a permanent factor (such as quality, grade, size or weight) that would not have changed since the previous inspection.
- The complaint concerns a condition factor that may change, but the time lapse, temperatures, perishability of product and degree and type of deterioration makes it apparent that the condition was present at the time of the previous inspection.
- Under certain circumstances, where it is obvious that procedures have not been followed, improper sampling was obvious, or there seems to be a lapse of grader judgment, and there are no complaints, the Fresh Products Branch may request that an appeal be performed.
Per the PACA: A request for an appeal inspection will be denied when:
- The complaint concerns a factor which may have undergone a change of condition since the original (previous) inspection; or
- The shipping point inspection was restricted to “samples taken,” submitted samples or other portion of the load that is not identifiable; or
- A large number of containers from the original (previous) manifest are not accessible for sampling or have been disposed of; or
- A lot is not positively identified and misbranding is not involved; or
- The shipping point certificate was a warehouse/platform inspection or the only identity of the lot is through a manifest certificate issued by a person other than a USDA inspector; or
- An appeal inspection has already been made on the lot.
Western Growers regular members can utilize my services to review and help you interrupt your USDA inspections, please email me at TommyO@wga.com with a copy of the USDA inspection certificate or call me at (949) 885-2269.