inactive season which does not come within the exemption is nevertheless closely related and directly essential to the production of goods for commerce which takes place during the active season and, therefore, is subject to the provisions of the Act (Farmers' Reservior Co. v. McComb, 337 U.S. 755; Mitchell v. Stinson, 217 F. 2d 210; Bowie v. Gonzalez, 117 F. 2d 11; Weaver v. Pittsburgh Steamship Co., 153 F. 2d 597, cert. den. 328 U.S. 858). Section 784.114 Application of exemptions on a workweek basis. The general rule is that the unit of time to be used in determining the application of the exemption to an employee is the workweek (see Overnight Motor Transportation Co. v. Missel, 316 U.S. 572; Mitchell v. Stinson, 217 F. 2d 210; Mitchell v. Hunt, 263 F.2d 913; Puerto Rico Tobacco Marketing Co-op. Ass'n. v. McComb, 181 F. 2d 697). Thus, the workweek is the unit of time to be taken as the standard in determining the applicability to an employee of section 13 (a) (5) or section 13(b) (4) (Mitchell v. Stinson, supra). An employee's workweek is a fixed and regularly recurring period of 168 hours-seven consecutive 24-hour periods. It may begin at any hour of any day set by the employer and need not coincide with the calendar week. Once the workweek has been set it commences each succeeding week on the same day and at the same hour. Changing the workweek for the purpose of escaping the requirements of the Act is not permitted. If in any workweek an employee does only exempt work he is exempt from the wage and hours provisions of the Act during that workweek, irrespective of the nature of his work in any other workweek or workweeks. An employee may thus be exempt in one workweek and not the next (see Mitchell v. Stinson, supra). But the burden of effecting segregation between exempt and nonexempt work as between particular workweeks is on the employer (see Tobin v. Blue Channel Corp., 198 F. 2d 245). Section 784.115 Exempt and noncovered work performed during the workweek. The wage and hours requirements of the Act do not apply to any employee during any workweek in which a portion of his activities falls within section 13(a) (5) if no part of the remainder of his activities is covered by the Act. Similarly, the overtime requirements are inapplicable in any workweek in which a portion of an employee's activities falls within section 13 (b) (4) if no part of the remainder of his activities is covered by the Act. Covered activities for purposes of the above statements mean engagement in commerce, or in the production of goods for commerce, or in an occupation closely related or directly essential to such production or employment in an enterprise engaged in commerce or in the production of goods for commerce, as explained in sections 784.17 and 784.18. Section 784.116 Exempt and nonexempt work in the same workweek. For en Where an employee, during any workweek, performs work that is exempt under section 13 (a) (5) or 13(b) (4), and also performs nonexempt work, some part of which is covered by the Act, the exemption will be deemed inapplicable unless the time spent in performing nonexempt work during that week is not substantial in amount. forcement purposes, nonexempt work will be considered substantial in amount if more than 20 percent of the time worked by the employee in a given workweek is devoted to such work (see Mitchell v. Stinson, 217 F. 2d 210). Where exempt. and nonexempt work is performed during a workweek by an employee and is not or cannot be segregated so as to permit separate measurement of the time spent in each, the employee will not be exempt (see Tobin v. Blue Channel Corp., 198 F.2d 245; Walling v. Public Quick Freezing and Cold Storage Co., 62 F. Supp. 924). Section 784.117 Combinations of exempt work. The combination of exempt work under section: 13(a) (5) and 13(b) (4), or of one of these sections with exempt work under another section of the Act, is permitted. Where a part of an employee's covered work in a workweek is exempt under section 13(a) (5) and the remainder is exempt under another section which grants an exemption from the minimum wage and overtime provisions of the Act, the wage and hours requirements are not applicable. If the scope of the exemption is not the same, however, the exemption applicable to the employee is that provided by whichever exemption provision is more limited in scope unless, of course, the time spent in performing work which is nonexempt under the broader exemption is not substantial. For example, an employee may devote part of his workweek to work within section 13(b) (4) and the remainder to work exempt from both the minimum wage and overtime requirements under another section of the Act. In such a case he must receive the minimum wage but is not required to receive time and one-half for his overtime work during that week (Cf. Mitchell v. Myrtle Grove Packing Co., 350 U.S. 891; Tobin v. Blue Channel Corp., 198 F. 2d 245). Each activity is tested separately under the applicable exemption as though it were the sole activity of the employee for the whole workweek in question. Unless the employee meets all the requirements of each exemption a combination exemption would not be available. Section 784.118 Work subject to different minimum wage rates in same workweek. Work subject to different minimum wage rates in the same workweek calls for application of a rule similar to that generally applied where work subject to two exemptions unequal in scope is involved. For example, section 13(b)(4) exempts both employment in canning and employment in processing other than canning of the named marine products from the overtime requirements, but the minimum wage requirements that must be observed for the two operations will not be the same until September 3, 1965. If employed in canning for his entire workweek, an employee will be entitled to the higher minimum wage rate prescribed by section 6(a) of the Act; if employed in processing other than canning throughout the workweek, he will be entitled only to the lower minimum wage rate prescribed by section 6(b). Prior to the 1961 amendments the situation differed only in that the Act provided a minimum wage exemption for the employment in processing other than canning. An employee employed in canning in a particular workweek was entitled to the minimum wage applicable to such employment, however, even where his processing of aquatic products for canning was intermingled in the same workweek with the processing of such products for other purposes (see Tobin v. Blue Channel Corp., 198 F. 2d 245, approved in Mitchell v. Myrtle Grove Packing Co., 350 U.S. 891). GENERAL CHARACTER AND SCOPE OF THE SECTION 13(a) (5) EXEMPTION Section 784.119 The exemption is intended for work affected by natural factors. As indicated by the legislative history, the purpose of the section 13 (a) (5) exemption is to exempt from the minimum wage and overtime provisions of the Act employment in those activities in the fishing industry that are controlled or materially affected by natural factors or elements, such as the vicissitudes of the weather, the changeable conditions of the water, the run of the catch, and the perishability of the products obtained (83 Cong. Rec. 7408, 7443; S. Rep. No. 145, p. 33 on H.R. 3935, 87th Cong., 1st sess.; Fleming v. Hawkeye Pearl Button Co., 113 F. 2d 52; Walling v. Haden, 153 F. 2d 196, certiorari denied 328 U.S. 866). Section 784.120 Effect of natural factors on named operations. The various activities enumerated in section 13 (a) (5)—the catching, taking, propagating, harvesting, cultivating, or farming of aquatic forms of animal or vegetable life as well as "the going to and returning from work" are materially controlled and affected by the natural elements. Similarly, the activities of "first processing, canning, or packing of such marine products at sea as an incident to, or in conjunction with, such fishing operations" are subject to the natural factors mentioned above. The "loading and unloading" of such aquatic products when performed at sea are also subject to the natural forces. Section 784.121 Application of exemption to "offshore" activities in general. The expression "offshore activities" is used to describe the category of named operations pertaining to the acquisition from nature of aquatic forms of animal and vegetable life. As originally enacted in 1938, section 13 (a) (5) exempted not only employees employed in such "offshore" or "trip" activities but also employees employed in related activities on shore which were similarly affected by the natural factors previously discussed (see section 784.103, and Fleming v. Hawkeye Pearl Button Co., 113 F. 2d 52). However, the 1 intent of the 1961 amendments to the Act was to remove from the exemption the so-called onshore activities and "leave the exemption applicable to 'offshore' activities connected with the procurement of the aquatic products" (S. Rep. 145, 87th Cong., 1st sess., p. 33). Despite its comprehensive reach (see sections 784.105 and 784.106), the exemption, like the similar exemption in the Act for agriculture, is "meant to apply only" to the activities named in the statute (see Maneja v. Waialua, 349 U.S. 254; Farmers Reservior Co. v. McComb, 337 U.S.755). Section 784.122 Exempt fisheries operations. Employees engaged in the named operations, such as "catching" or "taking," are clearly exempt. As indicated in section 784.106, employees engaged in activities that are "directly and necessarily a part of" an enumerated operation are also exempt (Mitchell v. Trade Winds, Inc., 289 F. 2d 278). The "catching, taking, propagating, harvesting, cultivating, or farming" of the various forms of aquatic life includes not only the actual performance of the activities, but also the usual duties inherent in the occupations of those who perform the activities. Thus, the fisherman who is engaged in "catching" and "taking" must see to it that his lines, nets, seines, traps, and other equipment are not fouled and are in working order. He may also have to mend or replace his lines or nets or repair or construct his traps. Such activities are an integral part of the operations of "catching" and "taking" of an aquatic product. Section 784.123 Operations performed as an integrated part of fishing. Certain other activities performed on a fishing vessel in connection with named operations are, functionally and as a practical matter, directly and necessarily a part of such operations. For example, maintenance work performed by members of the fishing crew during the course of the trip on the fishing boat would necessarily be a part of the fishing operation, since the boat itself is as much a fishing instrument as the fishing rods or nets. Similarly, work required on the vessel to keep in good operating condition any equipment used for processing, canning or packing the named aquatic products at sea is so necessary to the conduct of such operations that it must be considered a part of them and exempt. Section 784.124 Operations performed on fishing equipment. On the principle stated in section 784.122, the replacement, repair, mending, or construction of the fisherman's equipment performed at the place of the fishing operation would be exempt. Such activities performed in contemplation of the trip are also within the exemption if the work is so closely related both in point of time and function to the acquisition of the aquatic life that it is really a part of the fishing operation or of "going to *** work." For example, under appropriate facts, the repair of the nets, or of the vessel, or the building of fish trap frames on the shore immediately prior to the opening of the fishing season would be within the exemption. Activities at the termination of a fishing trip which are similarly related in time and function to the actual conduct of fishing operations or "returning from work" may be within the exemption on like principles. Similarly, the fact that the exemption is intended generally for "offshore" activities does not mean that it may not apply to employment in other activities performed on shore which are so integrated with the conduct of actual fishing operations and functionally so necessary thereto that the employment is, in practical effect, directly and necessarily a part of the fishing operations for which the exemption is intended. In such circumstances the exemption will apply, for example, to an employee employed by a vessel owner to watch the fishing vessel, its equipment, and the catch when it comes to port, check the mooring lines, operate bilge pumps and heating and cooling systems on the vessel, and assist in the loading and unloading of the fishing equipment and the catch. Work of the kinds referred to may be exempt when performed by the fisherman himself or by some other employee of the fishing organization. However, the exemption would not apply to employees of a manufacturer of supplies or to employees of independent shops which repair boats and equipment (Dize v. Maddrix, 144 F. 2d 584, affirmed 324 U.S. 697). Section 784.125 Going to and returning from work. The phrase "including the going to and returning from work" relates to the preceding named operations which pertain to the procuring and appropriation of seafood and other forms of aqua tic life from nature. The expression obviously includes the time spent by fishermen and others who go to and from the fishing grounds or other locations where the aquatic life is reduced to possession. If going to work requires fishermen to prepare and carry the equipment required for the fishing operation, this would be included within the exemption. In performing such travel the fishermen may be required to row, guide or sail the boat or otherwise assist in its operation. Similarly, if an employee were digging for clams or other shellfish or gathering seaweed on the sand or rocks it might be necessary to drive a truck or other vehicle to reach his destination. Such activities. are exempt within the meaning of this language. However, the phrase does not apply to employees who are not employed in the activities involved in the acquisition of aquatic animal or vegetable life, such as those going to or returning from work at processing or refrigerator plants or wholesale establishments. Section 784.126 Loading and unloading. The The term "loading and unloading" applies to activities connected with the removal of aquatic products from the fishing vessel and their initial movement to markets or processing plants. The term, however, is not without limitation. statute by its clear language makes these activities exempt only when performed by any employee employed in the procurement activities enumerated in section 13 (a) (5). This limitation is confirmed by the legislative history of the 1961 amendments which effectuated this change in the application of this term (S. Rep. 145, 87th Cong., 1st sess., p. 33). Consequently, members of the fishing crew engaged in loading and unloading the catch of the vessel to another vessel at sea or at the dockside would be engaging in exempt activities within the meaning of section 13 (a) (5). On the other hand, dock workers performing the same kind of tasks would not be within the exemption. Section 784.127 Operation of the fishing vessel. In extending the minimum wage to seamen on American vessels by limiting the exemption from minimum wages and overtime provided by section 13(a) (14) of the Act to "any employee employed as a seaman on a vessel other than an American vessel", and at the same time extending the minimum wage to "onshore" but not "offshore" operations concerned with aquatic products, the Congress, in the 1961 amendments to the Act, did not indicate any intent to remove the crews of fishing vessels engaged in operations named in section 13(a) (5) from the exemption provided by that section. The exemption provided by section 13(a) (14), above noted, and the general exemption in section 13 (b) (6) from overtime for "any employee employed as a seamen" (whether or not on an American vessel) apply, in general, to employees, working aboard vessels, whose services are rendered primarily as an aid to navigation. It appears, however, that it is not the custom or practice in the fishing industry for a fishing vessel to have two crews; namely, a fishing crew whose duty it is primarily to fish and to perform other duties incidental thereto and a navigational crew whose duty it is primarily to operate the boat. Where, as is the typical situation, there is but one crew which performs all these functions, the section 13 (a) (5) exemption would apply to its members. For a further explanation of the seaman's exemption see Part 783 of this chapter. Section 784.128 Office and clerical employees under section 13(a)(5). Office and clerical employees, such as bookkeepers, stenographers, typists and others who perform general office work of a firm engaged in operating fishing boats are not for that reason within the section 13(a) (5) exemption. Under the principles stated in section 784.106, their general office activities are not a part of any of the named operations even when they are selling, taking and putting up orders, or recording sales, taking cash or making telephone connections for customer or dealer calls. Employment in the specific activities enumerated in the preceding sentence would ordinarily, however, be exempt under section 13(b) (4) since such activities constitute "marketing" or "distributing" within the meaning of that exemption (see section 784.157). In certain circumstances, office or clerical employees may come within the section 13(a) (5) exemption. If, for example, it is necessary to the conduct of the fishing operations that such employees accompany a fishing expedition to the fishing grounds to perform certain work required there in connection with the catch, their employment under such circumstances may, as a practical matter, be directly and necessarily a part of the operations for which exemption was intended, in which event the exemption would apply to them. FIRST PROCESSING, CANNING, OR PACKING OF MARINE PRODUCTS UNDER SECTION 13(a)(5) Section 784.129 Requirements for exemption of first processing, etc., at sea. A complete exemption from minimum and overtime wages is provided by section 13(a) (5) for employees employed in the operations of first processing, canning, or packing of marine products at sea as an incident to, or in conjunction with "such" fishing operations-that is, the fishing operations of the fishing vessel (S. Rep. 145, 87th Cong., 1st sess., p. 33). To qualify under this part of the exemption, there must be a showing that (1) the work of the employees is such that they are, within the meaning of the Act, employed in one or more of the named operations of first processing, canning or packing, (2) such operations are performed as an incident to, or in conjunction with, fishing operations of the vessel, (3) such operations are performed at sea, and (4) such operations are performed on the marine products specified in the statute. Section 784.130 "Marine products". The marine products which form the basis of the exemption are the "fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life" mentioned in section 13 (a) (5). The exemption contemplates aquatic products currently or recently acquired and in the form obtained from the sea, since the language of the exemption clearly indicates the named operations of first processing, canning, or packing must be performed "at sea" and "as an incident to, or in conjunction with", fishing operations. Also, such "marine products" are limited to aquatic forms of "life". Section 784.131 "At sea". The "at sea" requirement must be construed in context and in such manner as to accomplish the statutory objective. The section 13 (a) (5) exemption is for the "catching, taking, propagating, harvesting", etc., of "aquatic forms of animal and vegetable life." There is no limitation as to where these activities must take place other than, as the legislative history indicates, that they are "offshore" activities. Since the purpose of the 1961 amendments is to exempt the "first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations," it would frustrate this objective to give the phrase "at sea" a technical or special meaning. For example, to define "at sea" to include only bodies of water subject to the ebb and flow of the tides or to saline waters would exclude the Great Lakes which obviously would not comport with the legislative intent. On the other hand, one performing the named activities of first processing, canning, or packing within the limits of a port or harbor is not performing them "at sea" within the meaning of the legislative intent although the situs of performance is subject to tidewaters. In any event it would not appear necessary to draw a precise line as to what constitutes "at sea" operations, for, as a practical matter, such first processing, canning, or packing operations are those closely connected with the physical catching of the fish and are performed on the fishing vessel shortly or immediately following the "catching" and "taking" of the fish. Section 784.132 "As an incident to, or in conjunction with" fishing operations. The statutory language makes clear that the "first processing, canning or packing", unlike the other named operations of "catching, taking, propagating, harvesting, cultivating, or farming" are not exempt operations in and of themselves. They are exempt only when performed "as an incident to, or in conjunction with such fishing operations" (see Farmers Reservior Co. v. McComb, 337 U.S. 755). It is apparent from the context that the language "such fishing operations" refers to the principal named operations of "catching, taking, propagating, harvesting, cultivating, or farming" as performed by the fishermen or fishing vessel (compare Bowie v. Gonzalez, 117 F. 2d 11). Therefore to be "an incident to, or in conjunction with such fishing operations", the first processing, can |