Section 784.0 Purpose.

784.150

"Subsequent operations".

784.151

Employees "employed in" canning.

PROCESSING, FREEZING, AND CURING

784.152 General scope of processing, freezing, and curing

784.153 Typical operations

activities.

exemption.

that

may qualify for

784.154 Named operations performed in previously processed aquatic products.

784.155 Operations performed after product is rendered nonperishable.

784.156 Operations performed on byproducts.

MARKETING, STORING, PACKING FOR SHIPMENT, AND DISTRIBUTING

784.157 General scope of named operations. 784.158

Relationship to other operations as affecting exemption.

784.159 Activities performed in wholesale establishments. APPLICATION OF SECTION 13 (b) (4) IN CERTAIN ESTABLISHMENTS

784.160 Establishments exclusively devoted to named operations.

AUTHORITY: Sections 784.0 to 784.160 issued under secs. 1-19 52 Stat. 1060, as amended; 75 Stat. 65; 29 U.S.C. 201-219. SOURCE: Sections 784.0 to 784.160 appear at 27 F.R. 1254, February 10, 1962.

It is the purpose of this part to provide an official statement of the views of the Department of Labor with respect to the application and meaning of those provisions of the Fair Labor Standards Act which govern rights and obligations of employees and employers in the various enterprises engaged in fishing and related activities and in operations on aquatic products. The application of the Act to employment in such enterprises was broadened by amendments effective September 3, 1961. Under the amended Act, a substantial number of employees employed in the processing

(other than canning) marketing, freezing, curing, storing, packing for shipment, or distributing of fish, shellfish, or other aquatic forms of animal or vegetable life and their byproducts will be subject to its minimum wage provisions for the first time. Also, certain employers engaged in some of these activities may have employees who are newly subject to the Act under the amendments extending coverage to employees employed in specified enterprises engaged in commerce or in the production of goods for commerce. An exemption from minimum wages as well as overtime pay has been extended by the 1961 amendments to certain em

ployees employed in canning of marine products at sea. It is an objective of this part to make available in one place, for the information of those who may be concerned with these and related provisions of the law, the official interpretations of such provisions by which the Department of Labor will be guided in carrying out its responsibilities under the Act.

Section 784.1 General scope of the Act.

The Fair Labor Standards Act, as amended, is a Federal statute of general application which establishes minimum wage, overtime pay, and child labor requirements that apply as provided in the Act. Employers and employees in enterprises engaged in fishing and related activities, or in operations on aquatic products on shore, need to know how the Act applies to employment in these enterprises so that they may understand their rights and obligations under the law. All employees whose employment has the relationship to interstate or foreign commerce which the Act specifies are subject to the prescribed labor standards unless specifically exempted from them. Employers having such employees are required to comply with the Act's provisions in this regard and with specified recordkeeping requirements contained in Part 516 of this chapter. The law authorizes the Department of Labor to investigate for compliance and, in the event of violations, to supervise the payment of unpaid minimum wages or unpaid overtime compensation owing to any employee. The law also provides for enforcement in the courts.

Section 784.2 Matters discussed in this part.

This part discusses generally the provisions of the Act which govern its application to employers and employees in enterprises and establishments of the fisheries, seafood processing, and related industries. It discusses in some detail those exemption provisions of the Act in sections 13 (a) (5) and 13(b) (4) which refer specifically to employees employed in described activities with respect to seafood and other forms of aquatic life.

Section 784.3 Matters discussed in other interpretations.

Interpretations having general application to others subject to the law, as well as to fishermen and seafood canners, processors, or distributors and their employees, have been issued on a number

of subjects of general interest. These will be found in other parts of this chapter. Reference should be made to them for guidance on matters which they discuss in detail, which this part does not undertake to do. They include Part 777 of this chapter, discussing methods of payment of wages; Part 778 of this chapter, discussing computation and payment of overtime compensation; Part 785 of this chapter, discussing the calculation of hours worked; Part 791 of this chapter, discussing joint employment relationships; and Part 776 of this chapter, discussing the general coverage provisions of the Act. Reference should also be made to Subpart G of Part 4 of this title, which contains the official interpretations of the child labor provisions of the Act.

Section 784.4 Significance of official interpretations.

The regulations in this part contain the official interpretations of the Department of Labor pertaining to the exemptions provided in sections 13 (a) (5) and 13(b) (4) of the Fair Labor Standards Act of 1938, as amended. It is intended that the positions stated will serve as "a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it" (Skidmore v. Swift, 323 U.S. 134, 138). These interpretations indicate the construction of the law which the Secretary of Labor and the Administrator believe to be correct and which will guide them in the performance of their duties under the Act, unless and until they are otherwise directed by authoritative decisions of the courts or conclude upon the re-examination of an interpretation that it is incorrect. The interpretations contained herein may be relied upon in accordance with section 10 of the Portal-to-Portal Act (29 U.S.C. 251-262), so long as they remain effective and are not modified, amended, rescinded, or determined by judicial authority to be incorrect. Section 784.5 Basic support for interpretations.

The ultimate decisions on interpretations of the Act are made by the courts (Mitchell v. Zachry, 362 U.S. 310; Kirschbaum v. Walling, 316 U.S. 517). Court decisions supporting interpretations contained in this part are cited where it is believed they may be helpful. On matters which have not been determined by the courts, it is necessary for

the Secretary of Labor and the Administrator to reach conclusions as to the meaning and the application of provisions of the law in order to carry out their responsibilities of administration and enforcement (Skidmore v. Swift, 323 U.S. 134). In order that these positions may be made known to persons who may be affected by them, official interpretations are issued by the Administrator on the advice of the Solicitor of Labor, as authorized by the Secretary (Reorganization Plan 6 of 1950, 64 Stat. 1263; Gen. Ord. 45A, May 24, 1950; 15 F.R. 3290). As included in the regulations in this part, these interpretations are believed to express the intent of the law as reflected in its provisions and as construed by the courts and evidenced by its legislative history. References to pertinent legislative history are made in this part where it appears that they will contribute to a better understanding of the interpretations.

Section 784.6 Interpretations made, continued, and superseded by this part.

On and after publication of this Part 784 in the Federal Register, the interpretations contained therein shall be in effect and shall remain in effect until they are modified, rescinded or withdrawn. This part supersedes and replaces the interpretations previously published in the Federal Register and Code of Federal Regulations

as Part 784 of this chapter. Prior opinions, rulings, and interpretations and prior enforcement policies which are not inconsistent with the interpretations in this part or with the Fair Labor Standards Act as amended by the Fair Labor Standards Amendments of 1961 are continued in effect; all other opinions, rulings, interpretations, and enforcement policies on the subjects discussed in the interpretations in this part are rescinded and withdrawn. The interpretations in this part provide statements of general principles applicable to the subjects discussed and illustrations of the application of these principles to situations that frequently arise. They do not and cannot refer specifically to every problem which may be met by employers and employees in the application of the Act. The omission to discuss a particular problem in this part or in interpretations supplementing it should not be taken to indicate the adoption of any position by the Secretary of Labor or the Administrator with respect to such problem or to constitute an administrative interpretation or practice or enforcement policy. Questions on matters not fully covered by this bulletin may be addressed to the Administrator of the Wage and Hour and Public Contracts Divisions, United States Department of Labor, Washington 25, D.C., or to any Regional Office of the Divisions.

Section 784.7 Definition of terms used in the Act.

The meaning and application of the provisions of law discussed in this part depend in large degree on the definitions of terms used in these provisions. The Act itself defines some of these terms. Others have been defined and construed in decisions of the courts. In the following sections some of these basic definitions are set forth for ready reference in connection with the part's discussion of the various provisions in which they appear. These definitions and their application are further considered in other interpretative bulletins to which reference is made, and in the sections of this part where the particular provisions containing the defined terms are discussed.

Section 784.8 "Employer", "employee", and "employ".

The Act's major provisions impose certain requirements and prohibitions on every "employer" subject to their terms. The employment by an "employer" of an "employee" is, to the extent specified in the Act, made subject to minimum wage and overtime pay requirements and to prohibitions against the employment of oppressive child labor. The Act provides its own definitions of "employer", "employee", and "employ", under which "economic reality" rather than "technical concepts" determines whether there is employment subject to its terms (Goldberg v. Whitaker House Cooperative, 366 U.S. 28; United States v. Silk, 331 U.S. 704; Rutherford Food Corp. v. McComb,

331 U.S. 772). An "employer", as defined in section 3(d) of the Act, "includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization". An "employee", as defined in section 3(e) of the Act, "includes any individual employed by an employer", and "employ", as used in the Act, is defined in section 3(g) to include "to suffer or permit to work". It should be noted, as explained in Part 791 of this chapter, dealing with joint employment, that in appropriate circumstances two or more employers may be jointly responsible for compliance with the statutory requirements applicable to employment of a particular employee. It should also be noted that "employer", "enterprise", and "establishment" are not synonymous terms, as used in the Act. An employer may have an enterprise with more than one establishment, or he may have more than one enterprise, in which he employs employees within the meaning of the Act. Also, there may be different employers who employ employees in a particular establishment or enterprise. Section 784.9 "Person".

As used in the Act (including the definition of enterprise" set forth below in section 784.10), "person" is defined as meaning "an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons" (Act, section 3 (a)).

Section 784.10 "Enterprise".

The term "enterprise" which may, in some situations, be pertinent in determining coverage of this Act to employees employed by employers engaged in the procurement, processing, or distribution of aquatic products, is defined in section 3 (r) of the Act. Section 3 (r) states:

Enterprise means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor

The scope and application of this definition is discussed in Part 776 of this chapter and in sections 779.200-779.235 of this chapter. Section 784.11 "Establishment".

As used in the Act (including the provision quoted below in section 784.12), the term "establishment", which is not specially defined therein, refers to a "distinct physical places of business" rather than to "an entire business or enterprise" which may include several separate place of business. This is consistent with the meaning of the term as it is normally used in business and in government, is judicially settled, and has been recognized in the Congress in the course of enactment of amendatory legislation (Phillips v. Walling, 324 U.S. 490; Mitchell v. Bekins Van & Storage Co., 352 U.S. 1027; 95 Cong. Rec. 12505, 12579, 14877; H. Rept. No. 1455, 81st Cong., 1st Sess., p. 25). This is the meaning of the term as used in sections 3 (r), 3(s), and 6(b) of the Act. Section 784.12 "Enterprise engaged in com

merce or in the production of goods for commerce".

Portions of the definition of "enterprise engaged in commerce or in the production of goods for commerce" (Act, section 3 (s)) which may in some situations determine the application of provisions of the Act to employees employed by employers engaged in the procurement, processing, or distribution of aquatic products are as follows:

(s) "Enterprise engaged in commerce or in the production of goods for commerce" means any of the following in the activities of which employees are so engaged, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person:

*

(3) any establishment or any such enterprise which has employees engaged in commerce or in the production of goods for commerce if the annual gross volume of sales of such enterprise is not less than $1,000,000.

Provided, Than an establishment shall not be considered to be an enterprise engaged in commerce or in the production of goods for commerce, or a part of an enterprise engaged in commerce or in the production of goods for commerce, and the sales of such establishment shall not be included for the purpose of determining the annual gross volume of sales of any enterprise for the purpose of this subsection, if the only employees of such establishment are the owner thereof or persons standing in the relationship of parent, spouse, or child of such owner.

The application of this definition is considered in Part 776 of this chapter.

Section 784.13 "Commerce".

"Commerce" as used in the Act includes interstate and foreign commerce. It is defined in section 3(b) of the Act to mean "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." (For the definition of "State", see section 784.16.) The application of this definition and the kinds of activities which it includes are discussed at length in Part 776 of this chapter dealing with general coverage of the Act.

Section 784.14 "Production".

To understand the meaning of "production" of goods for commerce as used in the Act it is necessary to refer to the definition in section 3(j) of the term "produced". A detailed discussion of the application of the term as defined is contained in Part 776 of this chapter, dealing with the general coverage of the Act. Section 3(j) provides that "produced" as used in the Act "means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State." (For the definition of "State," see section 784.16) Section 784.15 "Goods".

The definition in section 3 (i) of the Act states that "goods", as used in the Act, means "goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof."

Part 776 of this chapter, dealing with the general coverage of the Act, contains a detailed discussion of the application of this definition and what is included in it.

Section 784.16 "State".

As used in the Act, "State" means "any State of the United States or the District of Columbia or any Territory or possession of the United States" (Act, section 3 (c)). The application of this definition in determining questions of coverage under the Act's definition of "commerce" and "produced" (see sections 784.13, 784.14) is discussed in Part 776 of this chapter, dealing with general coverage. Section 784.17 "Regular rate”.

As explained in Part 778 of this chapter, dealing with overtime compensation, employees subject to the overtime pay provisions of the Act must generally receive for their overtime work in any workweek as provided in the Act not less than one and one-half times their regular rates of pay. Section 7(d) of the Act defines the term "regular rate" "to include all remuneration for employment paid to, or on behalf of, the employee" except certain payments which are expressly described in and excluded by the statutory definition. This definition, which is discussed at length in (Part 778) of this chapter, determines the regular rate upon which time and one-half overtime compensation must be computed under section 7(a) of the Act for employees within its general coverage who are not exempt from the overtime provisions under either of the fishery and seafood exemptions provided by sections 13 (a) (15) and 13(b) (4) or under some other exemption contained in the Act. It should be noted that if such an employee is not himself engaged in commerce or in the production of goods for commerce as defined by the Act and in the courts, and is within the Act's coverage only by reason of his employment in an enterprise engaged in commerce or in the production of goods for commerce, under the amendments to the Act effective on September 3, 1961, there is no obligation to pay overtime to him until September 3, 1963, as explained below in section 784.25.