tural or horticultural commodities in containers, and then closing and fastening those containers. Examples of specific activities typically included as a part of this operation are placing such commodities as fresh fruits, vegetables, and eggs in boxes, cartons, crates or other suitable containers; bagging unshelled nuts; and sacking grains. Also included as an actual part of the packing operation itself are labeling the containers, pre-cooling in the packing plant by means of ice, water, or cold air, and placing layers of crushed ice in the containers with the commodities. Assembling box shook and crates and stapling knocked down cartons for current use in the packing house are also included as a part of packing whether done by employees of the packer or of an independent contractor. On the other hand, repacking, freezing the commodities as distinguished from precooling, and manufacturing the containers themselves, are not considered a part of packing. Also not included are such processing operations as meat packing, bulking tobacco, and such operations as cutting and trimming celery to heart size.

"STORING"

Section 780.732 Exempt "storing".

Neither the minimum wage nor the maximum hours provisions of the Act apply with respect to an individual employed within the area of production (as defined by the Secretary of Labor), who is engaged in the "storing" of agricultural or horticultural commodities for market. It is clear from what has already been said that an employee is, for purposes of the exemption, engaged in the named operations only if he himself is actually and physically engaged in "storing" of commodities, and then only if the commodities he is engaged in storing are "agricultural or horticultural commodities" within the meaning of the Act and are being stored "for market." So long as these requirements are met and the area of production requirement is satisfied, the mere fact that the commodities stored have been previously packed, handled, or otherwise prepared for market without effecting any change in their natural form will not render the exemption inapplicable to an employee engaged in the storing operations, even though the earlier operations were performed in another establishment. Storing of frozen fruits or vegetables is not within the exemption, since

they are no longer agricultural or horticultural commodities within the meaning of the Act. Section 780.733 Activities included and excluded.

The term "storing" refers to physical operations customarily performed in caring for agricultural or horticultural commodities. Among the specific activities considered a part of storing are placing the commodities in the storage facility; caring for them while there; and removing them from the storage facility to conveyances used for their subsequent shipment (Tobin v. Flour Mills of America, 185 F. 2d 596; Holt v. Barnesville Farmers Elevator Co., 145 F. 2d 250). "Storing" broadly includes any nonprocessing activities performed in taking care of agricultural or horticultural commodities such as guarding them and operating machinery controlling the temperature at which they must be stored. Watchmen may consequently be physically engaged in "storing" (Jenkins v. Durkin, 208 F. 2d 941). The repairing of the storage facilities is not, however, a part of storing (Colbeck v. Dairyland Creamery Co., 70 S.D. 283, 17 N.W. 2d 262); nor are activities which are actually a part of processing operations. Thus, the brining of cherries or cucumbers, which changes the chemical content of those commodities, and the coldpacking (packing with sugar and placing into cold storage) or freezing of fruit or vegetables are preserving or processing operations and not "storing". Nor does "storing" include the icing of refrigerator cars and trucks used in the transportation of perishable commodities (Gordan v. Paducah Ice Mfg. Co., 41 F. Supp. 980), and other operations which, although perhaps necessary to the storing of agricultural or horticultural commodities are not a part of caring for the commodities in a storage facility.

"COMPRESSING"

Section 780.734 Exempt "compressing".

Neither the minimum wage nor the maximum hours provisions of the Act apply with respect to an individual employed within the area of production (as defined by the Secretary of Labor), who is engaged in the "compressing" of agricultural or horticultural commodities for market. It is clear from what has already been said that an employee is, for purposes of the exemption, engaged in the

named operations only if he himself is actually and physically engaged in "compressing" and then only if the commodities in the compressing of which he engages are "agricultural or horticultural commodities" within the meaning of section 13(a) (10) and are being compressed "for market." Furthermore, the significance of the term "agricul tural or horticultural commodities" is in this case. limited by the term descriptive of the operation. "Compressing" is a term generally applied to the cotton industry only, and the legislative history indicates the intention of Congress to give it such an application here. In practical effect, therefore, the exemption is limited to the compressing of cotton for market.

Section 780.735 Activities included and excluded.

The term "compressing", as used in section 13 (a) (10), refers exclusively to the process of compressing bales of ginned cotton into standard or high-density bales and the recompressing of standard-density into high-density bales. For purposes of the exemption, "compressing" is considered to include not only the actual manipulation of the presses wherein the baled cotton lint is compressed but also the operations immediately related thereto and performed in connection therewith as integral parts of a single uninterrupted process. The term therefore includes receiving and weighing the baled cotton lint at the compressing establishment, moving the bales to the presses, placing the baled cotton lint in the presses, operating the presses, removing and tying steel bands around the bales, and moving the bales from the presses. It does not, however, refer to the process of pressing any commodities other than cotton, such as cottonseed, flaxseed, tung nuts, peanuts, fruits or vegetables, sugar cane or beets, or soybeans, all of which are frequently subjected to a form of pressing operation in extracting oil, juice, or syrup (Abram v. San Joaquin Cotton Oil Co., 46 F. Supp. 969, 973 (extracting oil from cottonseed)).

"PASTEURIZING"

Section 780.736 Exempt "pasteurizing”.

Neither the minimum wage nor the maximum hours provisions of the Act apply with respect to an individual employed within the area of production (as defined by the Secretary of Labor) who

is engaged in the "pasteurizing" of agricultural or horticultural commodities for market. It is clear from what has already been said that an employee is, for purposes of the exemption, engaged in the named operations only if he himself is actually and physically engaged in the "pasteurizing" of commodities, and then only if the commodities he is engaged in pasteurizing are "agricultural or horticultural commodities" within the meaning of the Act and are being pasteurized "for market." If the commodities being pasteurized are, as is commonly the case, raw milk or cream, the operation will result in a "dairy product" (see section 780.766) and the employee, if the area of production requirement is met, will be exempt because he is making *** dairy products" even if the operation is performed for further processing rather than "for market".

Section 780.737 Activities included in "pasteurizing".

As used in section 13 (a) (10) "pasteurizing" refers to the process of inhibiting the growth of undesirable bacteria and organisms by the application of heat. The term usually refers to the performance of this operation on raw milk or cream. When so performed, the operation consists of heating the fluid milk or cream, holding it at a high temperature, and then cooling it. For purposes of the exemption, "pasteurizing" is considered to include also the placing of such milk or cream into bottles or other suitable containers.

"DRYING"

Section 780.738 Exempt "drying”.

Neither the minimum wage nor the maximum hours provisions of the Act apply with respect to an individual employed within the area of production (as defined by the Secretary of Labor), who is engaged in the "drying" of agricultural or horticultural commodities for market. It is clear from what has already been said that an employee is, for purposes of the exemption, engaged in the named operations only if he himself is actually and physically engaged in "drying" commodities and then only if the commodities in the drying of which he engages are "agricultural or horticultural commodities" within the meaning of the Act and are being dried "for market." The exemption does not extend to the drying of nonagricultural

and nonhorticultural commodities such as uncultivated moss or lumber, or to the drying of commodities that have ceased to be agricultural or horticultural commodities by reason of a change effected in their natural state, such as fermented or stemmed tobacco or broken and separated eggs. It should be noted that the making of dairy products by means of drying operations may be exempt under another clause of this section without regard to the character of the commodity dried or whether it is dried for market.

Section 780.739 Activities included in "drying".

The term "drying" refers to operations performed on agricultural or horticultural commodities to remove or reduce their moisture content. It includes operations frequently described as "dehydrating." The drying itself may be performed by natural methods, such as heating in the sun, or by mechanical methods, such as ovens and furnaces. Typical commodities on which this operation may be performed are fruits, vegetables, eggs, hay, rice, sorghum, and tobacco.

Section 780.740 Drying where change in natural form of commodities is involved.

The drying operations included in the exemption may be performed on freshly harvested commodities and result in the first change in their raw or natural state. In such a case it would not matter whether the drying is of a kind customarily performed on the farm before the commodities are marketed by the farmer. In other situations the drying operations included in the exemption may be performed on commodities which have already been changed from their natural form by operations performed on the farm. In such a case the prior change in form would not render the exemption inapplicable so long as the commodities were produced by agricultural or horticultural techniques and are, when drying operations are commenced, still in a form in which they are customarily marketed by farmers or in which they normally come from the farm (see section 780.712). The degree to which drying operations included in the exemption will affect the form of the commodities on which they are performed will also vary. In some instances, drying operations within the exemption may consist of lowering the

moisture content of the agricultural or horticultural commodity without substantially changing the form in which it normally comes from the farm, as when grain is dried to permit its safe storage. In other situations, the drying may consist of a process that changes the raw and natural form of the commodity to such an extent that the dried product is no longer an "agricultural or horticultural commodity" within the meaning of section 13(a) (10). Examples of such commodities are dried apricots, raisins, prunes, and dried eggs.

Section 780.741 Processing preliminary to actual drying.

If operations effecting a change in the natural form of an agricultural or horticultural commodity are performed before actual drying commences and are of such character that the commodity to be dried is no longer an "agricultural or horticultural commodity" within the meaning of the exemption, the application of the exemption may vary, depending on the facts. The exemption is inapplicable to any such operations prior to actual drying that are performed separately as an independent process and not as an integral part of a single continuous drying or dehydrating process. It is also inapplicable to any such prior operations that are not necessary steps in the drying process. In these situations the drying also is nonexempt because, when it commences, the commodities on which it is performed are not "agricultural or horticultural commodities". To illustrate, if tobacco is stemmed and then immediately dried, the stemming is not exempt because it is not a necessary step in the drying process but a separate and independent process not named in section 13(a) (10), and the drying is not exempt because it is not performed on "agricultural or horticultural commodities" within the meaning of that section. On the other hand, where preparatory processing operations on "agricultural or horticultural commodities" are necessary steps in the drying of such commodities and are performed as an integral part of a single continuous drying process, such necessary operations are included within the exemption. This would be true, for example, where preparatory peeling, cutting, pitting, and treating with chemicals are necessary steps in the drying of fresh fruit and are per

formed with the drying as integral parts of a single continuous process.

"PREPARING IN THEIR RAW OR NATURAL STATE" Section 780.742 Exempt "preparing".

Neither the minimum wage nor the maximum hours provisions of the Act apply with respect to an individual employed within the area of production (as defined by the Secretary of Labor), who is engaged in "preparing in their raw or natural state" agricultural or horticultural commodities for market. It is clear from what has previously been said that an employee is, for purposes of the exemption, engaged in hte named operations only if he himself is actually and physically engaged in "preparing" commodities "in their raw or natural state" and then only if the commodities thus being prepared are "agricultural or horticultural commodities" within the meaning of the Act and are being thus prepared "for market.” "First processing" operations, which are the operations initially changing the natural form of an agricultural or horticultural commodity are clearly not intended to be included in "preparing in their raw or natural state," since Congress expressly provided, in section 7(c) of the Act, a limited exemption from the overtime provisions only for such operations within the area of production. Also, the express provisions for exemption of employees engaged in certain processing operations such as canning or drying would be rendered meaningless and unnecessary if "preparing in their raw or natural state" were interpreted to include "processing." The legislative history discloses that the term "preparing in their raw or natural state" was used in contradistinction to the term "processing" to describe operations which leave the original form of the commodities unchanged. (81 Cong. Rec. 7876-7878; Maneja v. Waialua, 349 U.S. 254; Puerto Rico Tobacco Marketing Co-op Ass'n v. McComb, 181 F. 2d 697; Bowie v. Gonzalez, 117 F. 2d 11; Abram v. San Joaquin Cotton Oil Co., 46 F. Supp. 969 (S.D. Calif.). Cf. Fleming v. Farmers Peanut Co., 128 F.2d 404.)

Section 780.743 "Raw or natural state".

Preparing an agricultural or horticultural commodity "in" its "raw or natural state" requires that the commodity both be in such state when the

operations are performed and not be changed from such state by the operations. It is therefore necessary to know what the "raw or natural state" of the particular commodity is, as well as the effect on such of the particular operations. A number of factors must be considered in their relationships to the specific situation (Puerto Rico Tobacco Marketing Co-op Ass'n v. McComb, 181 F. 2d 697). As a general rule, however, the words "raw or natural state", as applied to agricultural or horticultural commodities for purposes of the exemption, are considered to describe the condition of such commodities as they are customarily harvested and marketed by the farmer or as they normally come from the farm. When an operation changes this condition in significant respects, the commodity is no longer in its "raw or natural state". Puerto Rico Tobacco Marketing Co-op Ass'n v. McComb, 181 F. 2d 697; Bowie v. Gonzales, 117 F. 2d 11; cf. Fleming v. Farmers Peanut Co., 128 F. 2d 404. "Raw or natural state," as the phrase is here used, is not synonymous with "fresh," as used in the language of section 7 (c) providing an exemption from the overtime requirements for employers engaged in the first processing, etc. of perishable or seasonal "fresh" fruits or vegetables. Thus, the exemption under consideration here may apply to operations performed on unshelled nuts and on dry edible beans notwithstanding both these commodities are outside the category of "fresh" fruits or vegetables for purposes of section 7 (c).

Section 780.744 General characteristics of included operations.

The term "preparing in their raw or natural state," as used in this exemption, refers to a wide variety of relatively simple, non-processing operations at the conclusion of which the product is still an agricultural or horticultural commodity. The legislative history indicates that these operations should be such simple ones as washing the raw commodity. (See colloquy among Senators Barkley, Schwellenbach, and Black, 81 Cong. Rec. 7876-7878.) While these operations may be performed either on or off the farm, the commodities must remain in their raw or natural state from the beginning to the end of the operation. Included under this term are those non-processing operations which make no substantial changes in either the physical structure or chemical content of the

commodities, although they may affect their general outward appearance, as in the case of washing or waxing.

Section 780.745 Operations on particular commodities.

Application of the principles just discussed to the many varieties of operations performed on the different types of agricultural or horticultural commodities requires an ascertainment of the condition of the particular commodities as they normally come from the farm and of the effect, if any, on such condition which is produced by the particular operations in question. What operations do and what operations do not constitute "preparing in their raw or natural state" of particular commodities when these tests are applied is illustrated by the typical examples given in the following sections of operations commonly performed on the commodities there described.

Section 780.746 Fruits and vegetables.

Among the non-processing operations which are included in preparing fruits or vegetables in their raw or natural state are cleaning, trimming, washing, polishing, grading, sizing, sorting, handpicking, coloring, cooling (including vacuum and hydro-cooling), and wrapping. Excluded processing operations are peeling, cutting, slicing, chopping, shredding, dicing, freezing, pressing, squeezing, stemming, and pickling.

Section 780.747 Grain, seeds, and field crops. Cleaning, shucking corn, threshing grain and dry edible beans, sorting, grading, fumigating, disinfecting, and mixing are among the included non-processing operations (Holt v. Barnesville Farmers Elevator Co., 145 F. 2d 250; Remington v. Shaw, 52 F. Supp. 465). Shelling corn for feed, seed, or industrial use is also considered to be in this category. Such corn which is normally marketed by the farmer in its shelled form is to be distinguished from corn harvested as a perishable fresh vegetable to be prepared for human consumption as "corn on the cob" or as canned or frozen corn. Cracking, grinding, crushing, chopping, milling and such operations as hulling rice are processing operations which are not included. Manufacturing feeds from various grains or straw paper from wheat straw are also not included.

Section 780.748 Hemp, flax, and other fibre crops.

Decortication is a processing operation which is not included in preparing these crops in their raw or natural state.

Section 780.749 Nursery stock.

Cleaning, waxing, trimming and grading are some of the non-processing operations included in the preparing of nursery stock in its raw or natural state. The term "nursery stock" includes shrubs, vines, and flowers, and fruit, nut, shade, vegetable, and ornamental plants or trees (but not Christmas trees or forest tree seedlings). In this connection also see sections 780.710 and 780.711. Section 780.750 Nuts.

In preparing nuts in their raw or natural state, cleaning, grading, sizing, and sorting unshelled nuts are some of the non-processing operations included. Nuts in most instances are customarily marketed by farmers in the shell. In this respect they are unlike such commodities as dry edible beans which are usually removed from their covering by the farmer before marketing. The shelling of nuts, therefore, is considered a processing operation which alters the structure of the nut as an agricultural or horticultural commodity (cf. Fleming v. Farmers Peanut Co., 128 F. 2d 404), and like cracking, picking, or roasting, is not included in this exemption. Subsequent operations on the nut meats, such as roasting or manufacturing them into nut butter, are also processing and not included.

Section 780.751 Sugarcane and sugar beets.

Making raw sugar or syrup from these commodities is a processing operation which is not included in "preparing in their raw or natural state”. See Maneja v. Waialua, 349 U.S. 254; Bowie v. Gonzalez, 117 F. 2d 11.

Section 780.752 Tobacco.

Stripping (pulling the leaves from the stalk), tying the leaves into hands, grading, and sorting are among the nonprocessing operations which are included in preparing in the raw or natural state, when performed on unstemmed and unfermented tobacco. However, fermenting or bulking ("a process which changes the natural state of the freshly cured tobacco as significantly as milling