When Picking Apples on a Farm With 5,000 Rules, Watch Out for the Ladders

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2017-12-27 13:22:47

“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.

10,400 Words to Regulate Pesticide Spraying

Seventeen pages of Environment Protection Agency rules, laying out requirements for someone to be certified to apply pesticides to crops, typify the complicated regulatory policing that produce growers encounter. Everything must be spelled out, even common definitions and common-sense precautions.






Some of the topics covered:

The business owner

must be proficient in 33

precise definitions,

including a 45-word

description of “hazard.”

The rule then lays out

11 types of businesses

that are covered by the

rule, including our

farmers.

Next, dozens of rules

essentially lay out the

knowledge required for a

person to be certified to

apply pesticides.

The regulation makes a

distinction between

commercial pest control

and “private applicators”

who use pesticides on

their own farms.

Can a non-certified

person apply pesticides?

Yes, as long as a

certified person provides

“detailed guidance.”

Many states have

regulations on top of the

Federal rules. This part

essentially lays out how

federal regulators oversee

state regulators.

Some of the topics covered:

The business owner must be proficient in 33 precise

definitions, including a 45-word description of “hazard.”

The rule then lays out 11 types of businesses that are

covered by the rule, including our farmers.

Next, dozens of rules essentially lay out the knowledge

required for a person to be certified to apply pesticides.

The regulation makes a distinction between commercial pest control

and “private applicators” who use pesticides on their own farms.

Can a non-certified person apply pesticides? Yes, as long as a

certified person provides “detailed guidance.”

Many states have regulations on top of the Federal rules. This part

essentially lays out how federal regulators oversee state regulators.

Some of the topics covered:

The business owner must be proficient in

33 precise definitions, including a 45-word

description of “hazard.”

The rule then lays out 11 types of

businesses that are covered by the rule,

including our farmers.

Next, dozens of rules essentially lay out

the knowledge required for a person to

be certified to apply pesticides.

The regulation makes a distinction between

commercial pest control and “private

applicators” who use pesticides on their

own farms.

Can a non-certified person apply

pesticides? Yes, as long as a certified

person provides “detailed guidance.”

Many states have regulations on top of the

Federal rules. This part essentially lays out

how federal regulators oversee state

regulators.





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.

Photo

A sign at a Whole Foods in New York City promotes Indian Ladder Farms as a participant in a program that is good for the environment “while producing absolutely delicious apples.” But the store does not sell the produce.

Credit
Steve Eder

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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