INTERPRETATIVE BULLETIN all the requirements of each exemption which it is sought to combine. GENERAL SCOPE OF "AGRICULTURE" Section 780.112 How modern specialization affects the scope of agriculture. The effect of modern specialization on agriculture has been discussed by the United States Supreme Court of follows: Whether a particular type of activity is agricultural depends, in large measure, upon the way in which that activity is organized in a particular society. The determination cannot be made in the abstract. In less advanced societies the agricultural function includes many types of activity which, in others, are not agricultural. The fashioning of tools, the provision of fertilizer, the processing of the product, to mention only a few examples, are functions which, in some societies, are performed on the farm by farmers as part of their normal agricultural routine. Economic progress, however, is characterized by a progressive division of labor and separation of function. Tools are made by a tool manufacturer, who specializes in that kind of work and supplies them to the farmer. The compost heap is replaced by factory produced fertilizers. Power is derived from electricity and gasoline rather than supplied by the farmer's mules. Wheat is ground at the mill. In this way functions which are necessary to the total economic process of supplying an agricultural product become, in the process of economic development and specialization, separate and independent productive functions operated in conjunction with the agricultural function but no longer a part of it. Thus the question as to whether a particular type of activity is agricultural is not determined by the necessity of the activity to agriculture nor by the physical similarity of the activity to that done by farmers in other situations. The question is whether the activity in the particular case is carried on as part of the agricultural function or is separately organized as an independent productive activity. The farmhand who cares for the farmer's mules or prepares his fertilizer is engaged in agriculture. But the maintenance man in a power plant and the packer in a fertilizer factory are not employed in agriculture, even if their activity is necessary to farmers and replaces work previously done by farmers. The pro duction of power and the manufacture of fertilizer are independent productive functions, not agriculture (see Farmers Reservoir Co. v. McComb, 337 U.S. 775 cf. Maneja v. Waialua, 349 U.S. 254). Section 780.113 "Primary" and "secondary" agriculture under section 3(f). (a) Section 3 (f) of the Act contains a very comprehensive definition of the term "agriculture". The definition has two distinct branches (see Farmers Reservoir Co. v. McComb, 337 U.S. 755). One has relation to the primary meaning of agriculture; the other gives to the term a somewhat broader secondary meaning for purposes of the Act (NLRB v. Olaa Sugar Co., 242 F. 2d 714). (b) First, there is the primary meaning. This includes farming in all its branches. Listed as being included "among other things" in the primary meaning are certain specific farming operations such as cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodities and the raising of livestock, bees, fur-bearing animals or poultry. If an employee is employed in any of these activities, he is exempt regardless of whether he is employed by a farmer or on a farm (Farmers Reservoir Co. v. McComb, supra; Holtville Alfalfa Mills v. Wyatt, 230 F. 2d 398). (c) Then there is the secondary meaning of the term. The second branch includes operations other than those which fall within the primary meaning of the term. It includes any practices, whether or not they are themselves farming practices, which are performed either by a farmer or on a farm as an incident to or in conjunction with "such" farming operations (Farmers Reservoir Co. v. McComb, supra; NLRB v. Olaa Sugar Co., 242 F. 2d 714; Maneja v. Waialua, 349 U.S. 254). (d) Employment not within the scope of either the primary or the secondary meaning of "agriculture" as defined in section 3(f) is not employment in agriculture within the meaning of the section 13 (a) (6) exemption. In other words, employees not employed in farming or by a farmer or on a farm are not exempt (Tobin v. Wenatchee Air Service, 10 WH Cases 680 (E.D. Wash.)). EXEMPTION FOR "PRIMARY" AGRICULTURE GENERALLY Section 780.114 General statement on "primary" agriculture. The discussion in sections 780.114-780.136 relates to the activities which exempt an employee who is employed in "agriculture" within its "primary" meaning. Within this meaning of "agriculture", employees employed in the listed activities, generally characterizable as direct farming operations, are exempt without qualification from both the minimum wage and overtime pay provisions. Section 780.115 Employment in "primary" agriculture is exempt regardless of why or where work is performed. When an employee is engaged in direct farming operations included in the primary definition of "agriculture", the purpose of the employer in performing the operations is immaterial. For example, where an employer owns a factory and a farm and operates the farm only for experimental purposes in connection with the factory, those employees who devote all their time during a particular workweek to the direct farming operations, such as the growing and harvesting of agricultural commodities, are nevertheless exempt from the Act's wage and hour requirements during that workweek. It is also immaterial whether the agricultural or horticultural commodities are grown in enclosed houses, as in greenhouses or mushroom cellars, or in an open field. Similarly, the mere fact that production takes place in a city or on industrial premises, such as in hatcheries, rather than in the country or on premises possessing the normal characteristics of a farm makes no difference (see Jordan v. Stark Brothers Nurseries, 45 F. Supp. 769; Miller Hatcheries v. Boyer, 131 F. 2d 283; Damutz v. Pinchbeck, 158 F.2d 882). "FARMING IN ALL ITS BRANCHES" Section 780.116 Scope of the statutory term. The language "farming in all its branches" includes all activities, whether listed in the definition or not, which constitute farming or a branch thereof under the facts and circumstances. Section 780.117 Listed activities. Section 3(f), in defining the practices included as "agriculture" in its statutory secondary meaning, refers to the activities specifically listed in the earlier portion of the definition (the "primary" meaning) as "farming" operations. They may therefore be considered as illustrative of "farming in all its branches" as used in the definition. its branches", it may be necessary to consider various circumstances such as the nature and purpose of the operations of the employer, the character of the place where the employee performs his duties, the general types of activities there conducted, and the purpose and function of such activities with respect to the operations carried on by the employer. The determination may involve a consideration of the principles contained in section 780.112. For example, so-called "bird dog" operations of the citrus fruit industry consisting of the purchase of fruit unsuitable for packing and of the transportation and sale of the fruit to canning plants do not qualify as "farming" and, consequently, employees engaged in such operations are not exempt. (See Chapman v. Durkin, 214 F.2d 360 cert. denied 348 U.S. 897; Fort Mason Fruit Co. v. Durkin, 214 F. 2d 363 cert. denied, 348 U.S. 897.) However, employees gathering the fruit at the groves are exempt because they are engaged in harvesting operations. (For exempt transportation, see Subpart E of this part.) "CULTIVATION AND TILLAGE OF THE SOIL" Section 780.119 Operations included in "cultivation and tillage of the soil." "Cultivation and tillage of the soil" includes all the operations necessary to prepare a suitable seedbed, eliminate weed growth and improve the physical condition of the soil. Thus, grading or leveling land or removing rock or other matter to prepare the ground for a proper seedbed or building terraces on farmland to check soil erosion are included. The application of water, fertilizer or limestone to farmland is also included. Irrigation employees not exempt on this ground may be exempt under other provisions. (See in this connection sections 778.137 et seq. and sections 780.184 et seq. Also see Farmers Reservoir Co. v. McComb, 337 U.S. 755.) Employees engaged in the commercial production and distribution of fertilizer are not exempt (McComb v. Super-A Fertilizer Works, 165 F. 2d 824). "DAIRYING" Section 780.120 "Dairying" as a farming operation. "Dairying" includes the work of caring for and milking cows or goats. It also includes putting the milk in containers, cooling it, and storing it where done on the farm. The handling of milk and cream at receiving stations is not included. Such operations as separating cream from milk, bottling milk and cream, or making butter and cheese may be exempt as "dairying" under some circumstances, or they may may be exempt practices under the "secondary" meaning of the definition when performed by a farmer or on a farm, if they are not performed on milk produced by other farmers or produced on other farms. (See the discussions in sections 780.137 et seq.) "AGRICULTURAL OR HORTICULTURAL COMMODITIES" Section 780.121 General meaning of “agricul tural or horticultural commodities." Section 3(f) of the Act defines as "agriculture" the "production, cultivation, growing and harvesting" of "agricultural or horticultural commodities," and employees employed in such operations are within the section 13 (a) (6) exemption. In general, within the meaning of the Act, "agricultural or horticultural commodities" refers to commodities resulting from the application of agricultural or horticultural techniques. Insofar as the term refers to products of the soil, it means commodities that are planted and cultivated by man. Among such commodities are the following: grains, forage crops, fruits, vegetables, nuts, sugar crops, fibre crops, tobacco, and nursery products. Thus, employees engaged in growing wheat, corn, hay, onions, carrots, sugarcane, seed, or any other agricultural or horticultural commodity are engaged in "agriculture." In addition to such products of the soil, however, the term includes domesticated animals and some of their products such as milk, wool, eggs and honey. The term does not include commodities produced by industrial techniques, by exploitation of mineral wealth or other natural resources, or by uncultivated natural growth. Section 780.122 Seeds, spawn, etc. Seeds and seedlings of agricultural and horticultural plants are considered "agricultural or horticultural commodities." Thus, since mushrooms and beans are considered "agricultural or horticultural commodities," the spawn of mushrooms and bean sprouts are also so considered and the production, cultivation, growing and harvesting of mushroom spawn or bean sprouts is "agriculture" within the meaning of section 3 (f). Section 780.123 Wild commodities. Employees engaged in the gathering or harvesting of wild commodities such as mosses, wild rice, burls and laurel plants, the trapping of wild animals, or the appropriation of minerals and other uncultivated products from the soil are not employed in "the production, cultivation, growing, and harvesting of agricultural or horticultural commodities". However, the fact that plants or other commodities actually cultivated by man are of a species which ordinarily grows wild without being cultivated does not preclude them from being classed as "agricultural or horticultural commodities". Transplanted branches which were cut from plants growing wild in the field or forest are included within the term. Cultivated blueberries are also included. Section 780.124 Forest products. Trees grown in forests and the lumber derived therefrom are not "agricultural or horticultural commodities". Christmas trees, whether wild or planted, are also not so considered. It follows that employment in the production, cultivation, growing, and harvesting of such trees or timber products is not sufficient to bring an employee within section 3 (f) unless the operation is performed by a farmer or on a farm as an incident to or in conjunction with his or its farming operations. On the latter point, see sections 780.160-780.164 which discuss the question of when forestry or lumbering operations are incident to or in conjunction with farming operations so as to constitute "agriculture". For a discussion of the exemption in section 13 (a) (15) of the Act for certain forestry and logging operations in which not more than 12 employees are employed, see Part 788 of this chapter. Section 780.125 Commodities included by ref erence to the Agricultural Marketing Act. (a) Section 3 (f) expressly provides that the term "agricultural or horticultural commodities" shall include the commodities defined as agricultural commodities in section 15 (g) of the Agricultural Marketing Act, as amended (12 U.S.C. 1141-1141j). Section 15 (g) of that Act provides: "As used in this act, the term 'agricultural com modity' includes, in addition to other agricultural commodities, crude gum (oleoresin) from a living tree, and the following products as processed by the original producer of the crude gum (oleoresin) from which derived; Gum spirits of turpentine, and gum resin, as defined in the Naval Stores Act, approved March 3, 1923" (7 U.S.C. 91-99). As defined in the Naval Stores Act, "gum spirits of turpentine' means spirits of turpentine made from gum (oleoresin) from a living tree" and "gum rosin' means rosin remaining after the distillation of gum spirits of turpentine." The production of these commodities is therefore within the definition of "agriculture". (b) Since the only oleoresin included within section 15(g) of the Agricultural Marketing Act. is that derived from a living tree, the production of oleoresin from stumps or any sources other than living trees is not within section 3 (f). If turpentine or rosin is produced in any manner other than the processing of crude gum from living trees, as by digging up pine stumps and grinding them or by distilling the turpentine with steam from the oleoresin within or extracted from the wood, the production of the turpentine or rosin is not included in section 3 (f). (c) Similarly, the production of gum turpentine or gum rosin is not included when these are produced by anyone other than the original producer of the crude gum from which they are derived. Thus, if a producer of turpentine or rosin from oleoresin from living trees makes such products not only from oleoresin produced by him but also from oleoresin delivered to him by others, he is not producing a product defined as an agricultural commodity and employees engaged in his production operations are not exempt. (For an explanation of the inclusion of the word "production" in section 3(f), see section 780.126(b).) It is to be noted, however, that the production of gum turpentine and gum rosin from crude gum (oleoresin) derived from a living tree is exempt when performed at a central still for and on account of the producer of the crude gum. But where central stills buy the crude gum they process and are the owners of the gum turpentine and gum rosin that are derived from such crude gum and which they market for their own account, the production of such gum turpentine and gum rosin is not exempt. 691-586 0-63-3 "PRODUCTION, CULTIVATION, GROWING, AND HARVESTING" OF COMMODITIES Section 780.126 "Production, cultivation, growing." (a) The words "production, cultivation, growing" describe actual raising operations which are normally intended or expected to produce specific agricultural or horticultural commodities. The raising of such commodities is included even though done for purely experimental purposes. The "growing" may take place in growing media other than soil as in the case of hydroponics. The words do not include operations undertaken or conducted for purposes not concerned with obtaining any specific agricultural or horticultural commodity. Thus operations which are merely preliminary, preparatory or incidental to the operations whereby such commodities are actually produced are not within the terms "production, cultivation, growing". For example, employees of a processor of vegetables who are engaged in buying vegetable plants and distributing them to farmers with whom their employer has acreage contracts are not engaged in the "production, cultivation, growing" of agricultural or horticultural commodities. The furnishing of mushroom spawn by a canner of mushrooms to growers who supply the canner with mushrooms grown from such spawn does not constitute the "growing" of mushrooms. Similarly, employees of an employer who is engaged in servicing insecticide sprayers in the farmer's orchard and employees engaged in such operations as the testing of soil or genetics research are not included within the terms. (However, see sections 780.137 et seq. for possible exemption on other grounds.) The word "production", used in conjunction with "cultivation, growing, and harvesting", refers, in its natural and unstrained meaning, to what is derived and produced from the soil, such as any farm produce. Thus, "production" as used in section 3(f) does not refer to such operations as the grinding and processing of sugarcane, the milling of wheat into flour, or the making of cider from apples. These operations are clearly the processing of the agricultural commodities and not the production of them (Bowie v. Gonzalez, 117 F.2d 11). (b) The word "production" was added to the definition of "agriculture" in order to take care of a special situation-the production of turpentine and gumrosins by a process involving the tapping of living trees. (See S. Rep. No. 230, 71st Cong., 2d Sess. (1930); H.R. Rep. No. 2738, 75th Cong., 3d Sess. p. 29 (1938).) To insure the inclusion of this process within the definition, the word "production" was added to section 3 (f) in conjunction with the words "including commodities defined as agricultural commodities in section 15 (g) of the Agricultural Marketing Act, as amended" (Bowie v. Gonzalez, 117 F. 2d 11). It is clear, therefore, that "production" is not used in section 3(f) in the artificial and special sense in which it is defined in section 3(j). It does not exempt an employee merely because he is engaged in a closely related process or occupation directly essential to the production of agricultural or horticultural commodities. To so construe the term would render unnecessary the remainder of what Congress clearly intended to be a very elaborate and comprehensive definition of "agriculture". The legislative history of this part of the definition was considered by the United States Supreme Court in reaching these conclusions in Farmers Reservoir Co. v. McComb, 337 U.S. 755. Section 780.127 "Harvesting". (a) The term "harvesting" as used in section 3(f) includes all operations customarily performed in connection with the removal of the crops by the farmer from their growing position (Holtville Alfalfa Mills v. Wyatt, 230 F. 2d 398; NLRB v. Olaa Sugar Co., 242 F. 2d 714). Examples include the cutting of grain, the picking of fruit, the stripping of bluegrass seed, and the digging up of shrubs and trees grown in a nursery. Employees engaged on a plantation in gathering sugar cane as soon as it has been cut, loading it, and transporting the cane to a concentration point on the farm are engaged in "harvesting" (Vives v. Serralles, 145 F. 2d 552). (b) The combining of grain is exempt either as harvesting or as a practice performed on a farm in conjunction with or as an incident to farming operations. (See in this connection Holtville Alfalfa Mills v. Wyatt, 230 F. 2d 398.) "Harvesting" does not extend to operations subsequent to and unconnected with the actual process whereby agricultural or horticultural commodities are severed from their attachment to the soil or otherwise reduced to possession. For example, the processing of sugar cane into raw sugar (Bowie v. Gonzalez, 117 F. 2d 11, and see Maneja v. Waialua, 349 U.S. 254), or the vining of peas are not included. For a further discussion on the exempt status of vining employees, see section 780.148. While transportation to a concentration point on the farm may be included, "harvesting" never extends to transportation or other operations off the farm. Off-the-farm transportation can only be "agriculture" when performed by the farmer as an incident to his farming operations (Chapman v. Durkin, 214 F. 2d 360 cert. denied 348 U.S. 897; Fort Mason Fruit Co. v. Durkin, 214 F. 2d 363 cert. denied 348 U.S. 897). For further discussion of this point, see sections 780.153-780.157; sections 780.167-780.172. "RAISING OF LIVESTOCK, BEES, FUR-BEARING ANIMALS, OR POULTRY" Section 780.128 Employment in the specified operations generally. Employees are employed in the raising of livestock, bees, fur-bearing animals or poultry only if their operations relate to animals of the type named and constitute the "raising" of such animals. If these two requirements are met, it makes no difference for what purpose the animals are raised or where the operations are performed. For example, the fact that cattle are raised to obtain serum or virus or that chicks are hatched in a commercial hatchery does not affect the exempt status of the operations. Section 780.129 Raising of "livestock". The meaning of the term "livestock" as used in section 3(f) is confined to the ordinary use of the word and includes only domestic animals ordinarily raised or used on farms. That Congress did not use this term in its generic sense is supported by the specific enumeration of activities, such as the raising of fur-bearing animals, which would be included in the generic meaning of the word. The term includes the following animals, among others: cattle (both dairy and beef cattle), sheep, swine, horses, mules, donkeys and goats. It does not include such animals as albino and other rats, mice, guinea pigs and hamsters, which are ordinarily used by laboratories for research purposes (Mitchell v. Maxfield, 12 WH Cases 792 (S.D. Ohio), 29 Labor Cases 69, 781). Fish are |