EMPLOYED

Sec.

788.1 Statutory provisions considered.

788.2 Introductory statement.

This exemption need not be considered unless the employee is "engaged in commerce or the production of goods for commerce" as those words are defined in the act so as to come within the general scope of sections 6 and 7. That problem is considered in Part 776 of this chapter and the discussion will not be repeated in this part. Neither does this part discuss the exemption provided in section 13 (a) (6) and defined in section 3 (f) to include forestry or lumbering operations inci

1 63 Stat. 910, effective January 25, 1950.

29 U. S. C. 201 et seq.

dent to or in conjunction with certain farming operations.

SECTION 788.2 INTRODUCTORY STATEMENT

The purpose of this part is to make available in one place the general interpretations of the Administrator which will provide "a practical guide to employers and employees as to how the office representing the public interest in enforcement of the law will seek to apply it." The interpretations contained in this part indicate, with respect to section 13 (a) (15) of the act which refers to forestry or logging operations, the construction of the law which the Administrator believes to be correct and which will guide him in the performance of his administrative duties under the act unless and until he is otherwise directed by authoritative decisions of the courts or concludes, upon reexamination of an interpretation, that it is incorrect. Under the Portal-to-Portal Act of 1947, interpretations of the Administrator may, under certain circumstances, be controlling in determining the rights and liabilities of employers and employees. The interpretations contained in this part are interpretations on which reliance may be placed as provided in section 10 of the Portal-to-Portal Act, so long as they remain effec

Skidmore v. Swift & Co., 324 U. S. 134. 461 Stat. 84.

1

tive and are not modified, rescinded, or determined by judicial authority to be incorrect. However, the omission to discuss a particular problem in this part or in the interpretations supplementing it should not be taken to indicate the adoption of any position by the Administrator with respect to such problem or to constitute an administrative interpretation or practice or enforcement policy.

SECTION 788.3 "PLANTING OR TENDING TREES, CRUISING, SURVEYING, OR FELLING TIMBER [AND] PREPARING OR TRANSPORTING LOGS”

By its terms, the exemption is limited to those employed in the named operations. These are terms of ordinary speech and mean what they mean in ordinary intercourse in this context. These operations include the incidental activities normally performed by persons employed in them but do not include mill operations. Thus employees employed in "planting or tending trees" include those engaged in seeding, planting seedlings, pruning, weeding, preparing firebreaks, removing rot or rusts, spraying, and similar operations when the object is to bring about, protect, or foster the growth of trees. Employees engaged in “cruising * * * timber" include all those members of a field crew whose purpose is to estimate and report on the volume of marketable timber. Employees engaged in "surveying *** timber" include the customary members of a crew accomplishing that function such as the chainmen, the transit men, the rodmen, and the axmen who clear the ground of brush or trees in order that the transit men may obtain a clear sight. Similarly, the usual members of a crew which goes to the woods for the purpose of felling timber and preparing and transporting logs are engaged in operations described in the exemption. Typically included, when members of such a crew, are fellers, limbers, skidders, buckers, loaders, swampers, scalers, and log truck drivers.

Preparing logs includes, where appropriate, removing the limbs and top, cutting them into lengths, removing the bark, and splitting or facing them when done at the felling site, but does not include such operations when done at a mill. Employees engaged in sawmill, tie mill, and other operations in connection with the processing of

logs, such as the production of lumber, are not exempt.

SECTION 788.4 "PREPARING * * * OTHER FORESTRY PRODUCTS"

As used in this section, "other forestry products" means plants of the forest and the natural properties or substances of such plants and trees. Included among these are decorative greens such as holly, ferns, and Christmas trees, roots, stems, leaves, Spanish moss, wild fruit, and brush. Gathering and preparing such forestry products as well as transporting them to the mill, processing plant, railroad, or other transportation terminal are among the described operations. Preparing such forestry products does not include operations which change the natural physical or chemical condition of the products or which amount to extracting as distinguished from gathering, such as shelling nuts, or mashing berries to obtain juices.

SECTION 788.5 "TRANSPORTING [SUCH]

PRODUCTS TO THE MILL, PROCESS-
ING PLANT, RAILROAD, OR OTHER
TRANSPORTATION TERMINAL"

The transportation or movement of logs or other forestry products to a "mill, processing plant, railroad, or other transportation terminal" is among the described operations. Loading and unloading, when performed by employees employed in the named operations, are included as exempt operations. Loading logs or other forestry products onto railroad cars or other transportation facilities for further shipment if performed as part of the exempt transportation will be considered a step in the exempt transportation. However, any other loading, transportation, or other activities performed in connection with the logs or other forestry products after they have been unloaded at one of the described destinations is not exempt. "Other transportation terminal" refers to any place where there are established facilities or equipment for the shipment or transportation of logs or other forestry products. Motor carrier yards, docks, wharves, or similar facilities are examples of other transportation terminals, but the place where logs are picked up by contract motor carriers or haulers at the site of the woods