ALTAMONT,
N.Y. — For eight weeks every fall, Indian Ladder Farms, a
fifth-generation family operation near Albany, kicks into peak season.
The
farm sells homemade apple pies, fresh cider and warm doughnuts.
Schoolchildren arrive by the bus load to learn about growing apples. And
as customers pick fruit from trees, workers fill bins with apples,
destined for the farm’s shop and grocery stores.
This
fall, amid the rush of commerce — the apple harvest season accounts for
about half of Indian Ladder’s annual revenue — federal investigators
showed up. They wanted to check the farm’s compliance with migrant labor
rules and the Fair Labor Standards Act, which sets pay and other
requirements for workers.
Suddenly, the small office staff turned its focus away from making money to placating a government regulator.
The
investigators arrived on a Friday in late September and interviewed the
farm’s management and a group of laborers from Jamaica, who have
special work visas. The investigators hand delivered a notice and said
they would be back the following week, when they asked to have 22 types
of records available. The request included vehicle registrations,
insurance documents and time sheets — reams of paper in all.
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Over
the next several days, the Ten Eyck family, which owns the farm, along
with the staff devoted about 40 hours to serving the investigators, who
visited three times before closing the books.
“It
is terribly disruptive,” said Peter G. Ten Eyck II, 79, who runs the
farm along with a daughter and son. “And the dimension that doesn’t get
mentioned is the psychological hit: They are there to find something
wrong with you. And then they are going to fine you.”
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This
is life on the farm — and at businesses of all sorts. With thick rule
books laying out food safety procedures, compliance costs in the tens of
thousands of dollars and ever-changing standards from the government
and industry groups, local produce growers are a textbook example of
what many business owners describe as regulatory fatigue.
Over
the past five decades, Mr. Ten Eyck said, there has been an unending
layering of new rules and regulations on his farm of over 300 acres, as
more government agencies have taken an interest in nearly every aspect
of growing food, and those agencies already involved have become even
more so.
Now,
a new rule is going into effect that will significantly expand the
oversight of one regulator, the Food and Drug Administration, at the
farm. And aside from the government, major retailers like Costco and
Walmart mandate extensive food-safety planning and audits for their
suppliers, all at a cost.
“If
it isn’t pest poisons and pesticides, then it is food safety,” said Mr.
Ten Eyck, describing how one rule maker seemingly tries to out do the
next. “And they come in waves.”
On
a back wall in the apple packinghouse, there are 13 clipboards with
various logs — first-aid monitoring, pest control, visitor sign-in
sheets and more — required for food safety audits. There are about
another dozen thick binders and manuals in the farm office for
navigating rules and regulations on such things as migrant and seasonal
worker protections.
Researchers at the Mercatus Center,
a conservative-leaning economic think tank at George Mason University,
say apple orchards are facing a growing federal regulatory burden.
Quantifying that burden is difficult, but using a computer algorithm
that analyzes regulations through keyword searches, researchers from the
center’s RegData Project estimated the federal regulatory code contains
12,000 restrictions and rules on orchards, up from about 9,500, or an
increase of 26 percent, from a decade ago.
Many
of those rules apply to other businesses as well, and some restrict the
actions of government regulators, not the orchard owners. Using the
Mercatus Center data, and screening for such exceptions, The New York
Times identified at least 17 federal regulations with about 5,000
restrictions and rules that were relevant to orchards.
More
than any president since Ronald Reagan, President Trump has publicly
seized on frustration toward a regulatory pile-on and pledged to trim,
consolidate and eliminate rules. “Much more regulation ‘busting’ to
come,” he tweeted in August. Mr. Ten Eyck, a Republican, did not vote
for Mr. Trump, but regulation streamlining is a winning message across
the political spectrum when it comes to making life easier for small
businesses, according to more than 20 interviews with business owners
and others in the produce industry.
Industry
by industry, small businesses have been lobbying governments — from
town health departments to federal cabinet agencies — to simplify rules
and eradicate redundancy.
Many
farmers, including Mr. Ten Eyck, acknowledge that not all regulations
are bad. They often have led to ample benefits, including a safer food
supply and better working conditions. Last year, an official with the Environmental Protection Agency was welcomed at Indian Ladder Farms where she promoted new standards to protect farm workers.
The
grievances relate largely to the sheer amount of time and money that it
takes to comply, and what farmers see as a disconnect between them —
the rule followers — and the rule makers, who Mr. Ten Eyck describes as
“people looking at a computer screen dreaming up stuff.”
“The
intentions are not bad,” he said. “It is just that one layer after
another gets to be — trying to top the people before them.”
Mr.
Trump’s regulatory rollback extends well beyond small business, and
many of the moves affecting big business have been met with stiff
resistance, particularly among environmentalists and public health
advocates who say the administration is hastily — and in some cases,
secretly — re-engineering carefully developed and necessary rules to
benefit Republican donors and industry allies. By the administration’s
own count, most recently updated on Dec. 14,
the Trump administration has issued 67 deregulatory actions, including
the rollback of regulations and guidances, and has delayed 700 rules.
The
rollback has not been felt on farms like Indian Ladder, which lies at
the foot of the Helderberg escarpment, between the Adirondacks and
Catskills. But there is a need, farmers say.
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“So
many of the farmers I’ve spoken with tell me that stricter and stricter
regulations have put many of their neighbors and friends out of
business, and in doing so cost them their homes, land and livelihoods,”
said Baylen Linnekin, a libertarian-leaning expert in food law and
policy, in an email. “For many farmers, rolling back regulations is the
only way they can survive.”
“The Number of Rules on Ladders Alone!”
After
a lifetime of navigating his family’s agricultural business, Mr. Ten
Eyck has a firm appreciation for the rules and regulations that are good
and helpful, as well as those that are excessive and ill-advised.
He
fluently speaks the language of government compliance, rattling off
acronyms that consume his time and resources, including E.P.A.
(Environmental Protection Agency), O.S.H.A. (Occupational Safety and
Health Administration), U.S.D.A. (United States Department of
Agriculture) and state and local offices, too, like A.C.D.O.H. (Albany
County Department of Health).
During
the Obama administration, food and worker safety were particular
priorities among regulators, Mr. Ten Eyck said. O.S.H.A., pairing with
its New York State counterpart, took an interest in a range of workplace
issues. One persistent concern is the use of ladders. “The number of
rules on ladders alone!” said Mr. Ten Eyck, explaining there is an
assortment of rules, guidances, standards and training requirements
associated with ladders, including how to achieve proper angling and how
to prevent falling when filling produce bags.
Ladders
fall toward the excessive end of Mr. Ten Eyck’s sliding scale of
regulatory cumbrance; on the more helpful end are procedures required to
track produce when there is a disease or illness outbreak. Most rules
fall somewhere in between.
After
finishing college (during which he traveled to Sweden aboard the
Stockholm, which then struck and sunk the Andrea Doria in 1956), Mr. Ten
Eyck, who graduated from Cornell in 1960, helped transform Indian
Ladder from its roots as a dairy farm 101 years ago to the
direct-to-consumer apple-focused operation it is today. Through the
years, he saw chemicals used in agriculture become “greener and greener”
and farming safety practices greatly improve. At the same time, he
watched in bewilderment as consumers became ever more suspicious of food
safety, an inspiration for the waves of new rules on growing produce.
“My
least favorite words? Laced or tainted,” said Mr. Ten Eyck, referring
to terms regulators use to identify food safety problems. “All I’m
trying to do is grow so that my grandchild can pick an apple off a tree
and take a bite out of it and be O.K. That’s where I want to be.”
Beyond
food quality concerns, there is considerable regulation around managing
a work force on the farm. During peak season, Indian Ladder employs
about 100, including pickers in the field, servers in the cafe and cider
pressers.
Inspections
typically take place during harvest because, despite the inconvenience,
the business is fully staffed. Inspectors say they are aware of the
disruption, but they expect full and immediate cooperation.
“Every
effort will be made to conduct this investigation expeditiously and
with a minimum of inconvenience to you and your employees,” one of the
investigators from the United States Department of Labor’s Wage and Hour
Division wrote to Indian Ladder Farms in September. “However, please
note that the above is not intended to be an exhaustive or final list of
records to be examined.”
One
of Mr. Ten Eyck’s daughters, Laura Ten Eyck, said there were good
reasons for work force oversight and that the labor investigators were
“professional and fair,”— but their surprise visit amounted to
“overkill.” Ultimately, she said, the investigators identified a couple
of minor infractions, including a farm worker performing a task related
more to retail than agriculture. They waived fines and required
corrective steps. (As Mr. Ten Eyck transitions into retirement, two of
his children, Ms. Ten Eyck, and Peter G. Ten Eyck III, are assuming
leadership of the farm. Ms. Ten Eyck, along with her husband, recently
opened a brewery at the farm, which comes with its own set of rules. )
One
of the objectives of the investigator was to verify compliance with the
H2A visa program, which farmers use to hire foreign workers. Farmers
complain that compliance is onerous because the program is especially
complicated to administer. Many farms have faced labor shortages and
have resorted to hiring illegal workers to fill gaps, though Mr. Ten
Eyck said Indian Ladder has not experienced those problems.
To
keep up with the panoply of changing rules, farmers are left with
little choice but to seek schooling. “You can’t just hunker down in the
bushes and look out to see what’s going,” said Mr. Ten Eyck, who has
served on many agricultural boards and commissions, including on the New
York Farm Bureau Foundation. “You have to go to meetings and attend
workshops. You are responsible to know what the hell is going on. It’s a
business.”
Bill
Hlubik, the director of the Rutgers Cooperative Extension office in
Middlesex County New Jersey, puts on programs for farmers and meets with
them to talk over challenges. “Regulatory issues seem to get more
complex as time goes on,” he said.
Whole Foods, the Regulator
A
photo of Mr. Ten Eyck, smiling and wearing a cap on his farm, until
recently was on display in the produce section at the Whole Foods market
in Columbus Circle in Manhattan.
A
placard proclaims, “EAT REAL FOOD,” and promotes Indian Ladder Farms as
a participant in a certification program that is good for the
environment “while producing absolutely delicious apples.”
Just don’t expect to find apples from Indian Ladder for sale.
Since
2014, Mr. Ten Eyck has “jumped through all the hoops” required by Whole
Foods to bring his apples to market, he said, but only a small number
ever made it to shelves. Those were delivered to an Albany store three
years ago. He blamed Whole Foods’ red tape — the private grocer’s
equivalent of regulatory excess.
“They
love us dearly,” joked Mr. Ten Eyck, who recalled being photographed
but did not know his picture was hanging in Manhattan. “We meet all of
their standards and everything they want.” But he added, “They can’t get
out of their own way.”
Retailers
like Whole Foods, Walmart and Costco serve as some of the most
demanding regulators of produce growers. The widest-reaching requirement
is that their suppliers have detailed food safety and handling plans,
which are customized by the farms, usually with the help of consultants.
The plans are based on F.D.A. guidelines, but are entirely voluntary.
A
spokeswoman for Whole Foods said that the company worked closely with
its suppliers and was proud of its high-quality standards. The retailer
declined to comment on Indian Ladder Farms.
Farmers
to some extent have gotten used to the requirements and see the benefit
for their businesses of creating a culture of food safety. But they
complain that the rules are onerous, particularly the tediousness of
documenting virtually anything that happens on the farm. Much of that
documentation at Indian Ladder goes in the 13 logs kept in the
packinghouse.
If something is not logged, the saying on the farm goes, it did not happen.
Mr.
Ten Eyck says some of the requirements are impractical. The safety plan
at Indian Ladder, for example, calls for someone to check the orchard
each morning for mouse and deer droppings and address the problem before
picking begins. The worry is that the droppings could get attached to a
worker’s shoe, get tracked onto a rung of a ladder, end up on a
worker’s hands and then on the apples.
Mr.
Ten Eyck says the requirement was “ridiculous” in practice — the
equivalent of finding an earring in the orchard — so Indian Farms came
up with an alternative to scouring the orchard every morning. “We have
trained the guys only to grab the rails of the ladder,” he said.
The
safety planning comes with accountability: The farms are audited,
usually twice a year — once planned and again as a surprise. The audits
are in-depth, as the inspector examines the entire farm operation,
including employee hygiene, labor laws and fertilizer application. The
auditor also checks if everyone on the farm has received proper
training. And they check the logs, too.
The
rules can be pretty specific, banning fake eyelashes (they can drop
into food) and specifying certain types of wedding bands that can be
worn (they can get caught in equipment). The distance between vehicles
and crops is closely monitored (exhaust fumes are harmful). And chewing
gum is prohibited because it could contaminate the produce.
The
food safety plans, and the audits, are costly and absorbed by the farm,
though occasionally, a retailer will offer to chip in. The audits are
usually conducted by private firms or through government programs.
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In
the end, the Ten Eycks sell most of their apples directly to customers
who come to pick them at the farm, sidestepping the hurdles imposed by
Whole Foods. The rest are stored in a huge refrigerator and sold in the
store or locally to retailers near Albany.
“I
put apples on the shelf that aren’t perfect,” Mr. Ten Eyck said. “Don’t
put me in the corner where I have to spray for cosmetic reasons. In a
supermarket, everything has to be perfect.”
“Our Goal is to Help Them Produce Safe Food”
Whole
Foods may not be selling apples from Indian Farms, but the grocery
chain’s rigorous oversight is acting as a dry run for the next big thing
coming in government farm regulation: the produce safety rule.
The rule is part of the Food Safety Modernization Act,
a 2011 law that followed a wave of incidents involving food-borne
illnesses. It imposes stricter controls across the board on food
production and gives the F.D.A. a bigger presence on the farm.
The
F.D.A.’s deputy commissioner for foods, Stephen Ostroff, said the
agency gained extensive input from farmers and it planned to continue
working with them. “Our goal is not to add to their burden,” Dr. Ostroff
said. “Our goal is to help them produce safe food.”
The
Trump administration has proposed to delay parts of the rule, but
compliance is required for some small farms by early 2019. Compliance is
expected to monitored by the F.D.A., along with its state government
partners.
Farmers
have been wary of the new rule because it takes many voluntary elements
of food safety planning and codifies them. Under the voluntary
programs, farmers have been able to lose points in safety audits, but
still pass. An F.D.A. inspector, under the new rule, could levy fines or
impose other penalties when a farm comes up short.
Dr.
Ostroff said the agency’s approach was likely to be corrective and
nurturing, rather than punitive. “We are not going to reap the public
health benefits of these regulations unless we achieve a high rate of
compliance,” he said.
For
many farmers who are familiar with food safety and have plans in place,
the new rule is unlikely to bring surprises, though it will likely lead
to additional requirements and costs, especially for things like extra
water testing, said Chris Gunter, an associate professor of
horticultural science who works with farmers at North Carolina State
University’s agricultural extension.
“Farmers
do not like regulation any more than anyone else, but everyone’s goal
is to produce food in the safest possible way,” Mr. Gunter said.
Mr.
Linnekin, the food lawyer and author of “Biting the Hands That Feed Us:
How Fewer, Smarter Laws Would Make Our Food System More Sustainable,”
predicted the new requirements would not lead to significant
improvements in food safety.
“Instead,
the result will likely be more of what we’ve experienced over the past
few decades as regulations have ratcheted up,” he said. “More of our
fruits and vegetables will be grown by large domestic producers who can
afford to comply with the regulations — at the expense of smaller
competitors — and by produce farmers abroad.”
Dr. Ostroff disputed that assessment. “We really want to work with farmers and point out areas they could improve,” he said.
Sitting
behind her desk in the office in the attic above the Indian Farms cafe
and store, Laura Ten Eyck said she longed for a clearinghouse that would
simplify the regulatory labyrinth for farmers. She said a farming
representative working with government officials could sort through the
various regulations at all levels of government and eliminate the
overlap and conflicts.
“I’m
not necessarily in favor of rolling back a lot of federal regulations,”
said Ms. Ten Eyck, a Democrat who serves on her local town board. “I’m
in favor of applying them intelligently.”