When Picking Apples on a Farm With 5,000 Rules, Watch Out for the Ladders
Posted December 27, 2017 5:16 p.m. EST
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.
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.”
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, 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 Ten Eyck, describing how one rule-maker seemingly tries to outdo 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 Donald 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.
Ten Eyck, a Republican, did not vote for 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 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 farmworkers.
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 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.” 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.
“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, 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 EPA (Environmental Protection Agency), OSHA (Occupational Safety and Health Administration), USDA (United States Department of Agriculture) and state and local offices, too, like ACDOH (Albany County Department of Health).
During the Obama administration, food and worker safety were particular priorities among regulators, Ten Eyck said. OSHA, 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 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 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 ocean liner Stockholm, which then struck and sank the Andrea Doria in 1956), 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 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 OK. That’s where I want to be.”
Beyond food quality concerns, there is considerable regulation around managing a workforce 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 U.S. 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 Ten Eyck’s daughters, Laura Ten Eyck, said there were good reasons for workforce 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 farmworker performing a task related more to retail than agriculture. They waived fines and required corrective steps.(As Peter Ten Eyck transitions into retirement, two of his children, Laura Ten Eyck and Peter G. Ten Eyck III, are assuming leadership of the farm. Laura 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 Peter 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 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 Peter 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 do not expect to find apples from Indian Ladder for sale.
Since 2014, 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 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 FDA 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.
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.
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.
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,” 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 FDA a bigger presence on the farm.
The FDA’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,” Ostroff said. “Our goal is to help them produce safe food.” The Trump administration has proposed delaying parts of the rule, but compliance is required for some small farms by early 2019. Compliance is expected to be monitored by the FDA, 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 FDA inspector, under the new rule, could levy fines or impose other penalties when a farm comes up short.
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,” Gunter said.
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.”
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 Ten Eyck, a Democrat who serves on her local town board. “I’m in favor of applying them intelligently.”