NY Times Misses the Point on “Regulatory Fatigue”

Buried in paragraph 6 of an article on Page 11 of today’s New York Times — right next to an article on new corporate loopholes provided by the Republican Tax Deform bill —  are statistics noting that about 48 million Americans get sick from food-borne diseases each year, according to the Food and Drug Administration. “Of these, 128,000 are hospitalized and 3,000 die.”

That’s right, more than 8 people die from food contamination every day of the year in this country.

So, imagine my surprise when I saw a front page article in the same issue of the Times alleging that the scourge of small farms is not food contamination deaths (or deaths in the workplace, or environmental contamination), but rather government regulation that threatens the nation’s small businesses that are just trying to mind their own business and make a bit of money.

The Times has done a number of good articles on how Trump’s deregulatory actions have hurt workers, consumers and the environment. But if this was a serious attempt by the paper to be “objective” and show the impact of “regulatory fatigue” on a small business, they missed their target. By a lot.

This article focuses on the suffering endured by one such small business: a family-owned apple orchard in upstate New York, Indian Ladder Farms.

You can read the entire 3,000 words, but you’ll get the message from the headline on this article by Times reporter Stever Eder: “One Apple Orchard and 5,000 Government Rules.”

And if that doesn’t convey the message, this one sentence pretty much sums it up when describing what happens when government regulators descend on Indian Ladder to ensure that they’re treating their workers properly:

Suddenly, the small office staff turned its focus away from making money to placating a government regulator.

Is it possible to “make money,” comply with regulations and run a safe business at the same time? Not according to the Times.

“Placating a government regulator?” Really? How about “protecting the farm’s workers” or “protecting the public from food poisoning?”  Is it possible to “make money,” comply with regulations and run a safe business at the same time? Not according to the Times.

So reader beware because…

The terror is palpable: 

“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.”

The threat is pervasive: 

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.

The assaults are unending:

“If it isn’t pest poisons and pesticides, then it is food safety,” said Mr. Ten Eyck, suggesting that one rule maker seemingly tries to outdo the last. “And they come in waves.”

The menace is foreign (with its own language):

He fluently speaks the language of government compliance, rattling off acronyms that consume his time and resources, including E.P.A. (Environmental Protection Agency), OSHA (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).

The villains are clear: 

The rule makers, who Mr. Ten Eyck describes as “people looking at a computer screen dreaming up stuff.”

And the heroes are heroic:

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.

In fact, only the lack of a threatening soundtrack stands between this article and the screenplay that could contend for next-year’s Oscar for Best Horror Film (in the fiction category).

The Truth

What’s behind the “facts” in this article?

First, choosing a farm to display the problems of regulation was particularly unfortunate, especially in the case of OSHA, the agency that is supposed to protect workers:

Small Farms: OSHA is not even allowed to step foot on farms that employ ten employees or fewer (unless they also run a temporary labor camp), according to a Congressional rider that has appeared on OSHA’s budget since the 1970s. That means that a small farm employee could get killed on the job — or 10 employees could get killed on the job, and not only is OSHA prohibited from penalizing the company, but OSHA isn’t even allowed to set foot on the premises to investigate the incident.

Ladder Safety: The full headline of the web version of this article reads: “When Picking Apples on a Farm with 5,000 Rules, Watch out for the Ladders.”  Oh snap!

But actually, OSHA doesn’t have ladder standards that apply to small farms, despite the considerable real estate this article spends on criticizing over-regulation of ladder safety.  The article decries an Obama era OSHA emphasis program that focused on reducing injuries and deaths in New York dairy farms.

“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.

Although neither OSHA nor New York state have regulations covering ladder safety in agriculture, federal OSHA has issued a very comprehensive fact sheet on orchard ladder safety.  So, is the Times implying that even OSHA fact sheets — the training and compliance assistance that Republicans and their business supporters say OSHA needs to focus on — are as burdensome as standards and regulations?

And the fact that OSHA has no standards covering ladder safety on farms is not a good thing — at least for workers. Ladder safety is nothing to laugh about.  Despite the fact that every household has a ladder, ladders are dangerous. Falls are the leading cause of death in the construction industry and BLS statistics show that falls from ladders account for roughly one-third of those fatalities. In 2016, ladders were the source of injury for 104 deaths in the construction industry

Agriculture is not construction, but the law of gravity applies equally in both sectors.

Agriculture — The Most Dangerous Industry: And deaths in the workplace apply in both sectors — only much more in agriculture. According to the BLS, 593 workers died in agriculture, forestry, fishing and hunting in 2016, up from 573 in 2015. The death rate in agriculture is 23.2 per 100,000 workers, compared with 10.1 in mining, 10.1 in construction and 2.0 in manufacturing. And these, of course, don’t count any deaths from occupational disease which run around 50,000 per year.

And don’t even get me started on the chart ridiculing the “10,000 Words to Regulate Pesticide Spraying” that contain “rules” and “restrictions” that do such ridiculous things as describing what certified pesticide applicators must understand in order to protect, themselves, other workers and the public.

The Bottom Line

So who is going on here? The article quotes a “study” by the industry-friendly/ regulation hostile Mercatus Center which

using a computer algorithm that analyzes regulations through keyword searches…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.

The New York Times further analyzed the data, identifying “at least 17 federal regulations with about 5,000 restrictions and rules that were relevant to orchards.”

Words have meaning and certain words can convey positive or negative values. So, let’s stop right there for a minute and do our own exhaustive “keyword search.”  Using a sophisticated algorithm developed five minutes ago in my brain, I’m focusing in on two words in the NY Times article: “restrictions” and “rules.”

A “restriction,” sounds like something bad. It implies that you’re being unnecessarily “restricted” from doing something good or worthwhile. Likewise, a “rule” sounds like something unpleasant.  On the other hand, a “protection” sounds like something good.

For example, I drove to the liquor store this morning to buy some 100-proof Slivovitz (which I needed after reading this article). Because of a bunch of government bureaucrats “looking at a computer screen dreaming up stuff,”  there are dozens of “rules” that “restricted” me from pushing the speedometer to 90, blowing through a red light and driving over the sidewalk to get the best parking place. Not only that, but some other stupid rule restricted me from drinking the Slivovitz on the way home.

One person’s rule is another person’s protection.

Of course, those same “rules” also “protected other drivers and pedestrians from dying. One person’s rule is another person’s protection.

In Conclusion

Of course, like many horror stories, this one has a happy ending. Mr. Ten Eyck acknowledges that “not all regulations are bad. They often have led to ample benefits, including a safer food supply and better working conditions.” 

And the Wage and Hour investigators that descended upon the farm only found minor infractions and no penalties.

And for overwhelmed small business owners, local colleges offer classes on regulatory compliance, and although the article fails to mention it, OSHA has a free consultation program for small businesses.

Ironically, the main “regulatory” obstacle to the Ten Eyck’s business is not government regulation, but Whole Foods, whose private sector red tape has kept Indian Ladder Farms from selling its apples at Whole Foods stores.

Small businesses, especially in agriculture, have real problems: the pressure from  large corporate agriculture, real estate development, and labor shortages due to a failed immigration policy.  Instead of parroting the dubious arguments of industry apologists like the Mercatus Center and the Trump Administration, the Times would do better to focus on the real problems faced by workers, the environment, consumers — and small businesses —  and real solutions that benefit everyone, not just big business and the ideologues they employ.

(Updated December 30)