section_id,title_number,title_name,chapter,subchapter,part_number,part_name,subpart,subpart_name,section_number,section_heading,agency,authority,source_citation,amendment_citations,full_text 10:10:5.0.2.5.18.1.12.1,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.1 Scope.,DOE,,,,"The regulations in this part establish the procedures, terms, and conditions for Patent Compensation Board: (a) Proceedings to declare a patent affected with the public interest pursuant to section 153a of the Atomic Energy Act of 1954 (Pub. L. 83-703; 42 U.S.C. 2183); (b) Proceedings to determine a reasonable royalty fee pursuant to section 157 of the Atomic Energy Act of 1954; (c) Proceedings for the grant of an award pursuant to section 157 of the Atomic Energy Act of 1954; (d) Proceedings to obtain compensation pursuant to section 173 of the Atomic Energy Act of 1954 and the Invention Secrecy Act (35 U.S.C. 183); And for applications to the Department of Energy (DOE) for a patent license pursuant to sections 153b(2) and 153c of the Atomic Energy Act of 1954." 10:10:5.0.2.5.18.1.12.10,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.10 Decision of the Board.,DOE,,,,The decision of the Board in any proceeding under this part shall constitute the final action of the Department on the matter. 10:10:5.0.2.5.18.1.12.11,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.11 Records of the Board.,DOE,,,,"The records of the Board in cases filed before it, including the pleadings, the transcript, and the final decision, shall be open to public inspection, except to the extent that such records or portions thereof are withheld from disclosure by the Board pursuant to 10 CFR part 1004." 10:10:5.0.2.5.18.1.12.2,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.2 Definitions.,DOE,,,,"(a) Act means the Atomic Energy Act of 1954 (Pub. L. 83-703; 42 U.S.C. 2011). (b) Application means the application filed by an applicant for a patent license, for the determination of a reasonable royalty fee, for an award, or for compensation under this part. (c) Board means the Patent Compensation Board. (d) Chairman means the Chairman of the Patent Compensation Board. (e) Department, or DOE, or Department of Energy means the Department of Energy, established by the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101). (f) Party means the applicant, patent owner, Department representative, and any person admitted as a party by the Board for any proceeding under this part. (g) Patent Owner means the owner of record in the United States Patent and Trademark Office. (h) Secretary means the Secretary of the Department of Energy or the delegate of the Secretary of Energy." 10:10:5.0.2.5.18.1.12.3,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.3 Jurisdiction of the Patent Compensation Board.,DOE,,,,"The Patent Compensation Board was established by section 157 of the Atomic Energy Act of 1954. It was transferred to the Energy Research and Development Administration pursuant to section 104(d) of the Energy Reorganization Act of 1974 (42 U.S.C. 5814) and subsequently to the Department of Energy by section 301 of the Department of Energy Organization Act (42 U.S.C. 7151). Under section 157, the Board is given authority to determine reasonable royalty fees or resolve issues involving the grant of awards. In addition, the Board has authority: (a) To hear and make decisions as to compensation under section 173 of the Act (42 U.S.C. 2223) and the Invention Secrecy Act (35 U.S.C. 183); (b) To hear and make decisions as to whether a specific patent is affected with the public interest pursuant to section 153a of the Act; (c) To hear and make decisions as to whether a specific patent license should be granted under sections 153b(2) and 153e of the Act; (d) To give notices, hold hearings and take such other actions as may be necessary under section 153; and (e) To exercise all powers available under the Act and necessary for the performance of these duties, including the issuance of such rules of procedure as may be necessary." 10:10:5.0.2.5.18.1.12.4,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.4 Filing and service of documents.,DOE,,,"[77 FR 4887, Feb. 1, 2012]","(a) All communications regarding proceedings subject to this part should be addressed to: Chairman, Patent Compensation Board, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585. All documents offered for filing shall be accompanied by proof of service upon all parties to the proceeding or their attorneys of record as required by law, rule, or order of the Department. Service on the Department shall be by mail or delivery to: Office of Assistant General Counsel for Technology Transfer and Intellectual Property, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585. (b) Filing by mail will be deemed to be complete as of the time of deposit in the United States mail." 10:10:5.0.2.5.18.1.12.5,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,"§ 780.5 Applications—General form, content, and filing.",DOE,,,,"(a) Each application shall be signed by the applicant and shall state the applicant's name and address. If the applicant is a corporation, the application shall be signed by an authorized officer of the corporation, and the application shall indicate the state of incorporation. Where the applicant elects to be represented by counsel, a signed notice to that effect shall be filed with the Board. (b) Each application must contain a concise statement of all of the essential facts upon which it is based. No particular form of statement is required. Each application shall be verified by the applicant or by the person having the best knowledge of such facts. In the case of facts stated on information and belief, the source of such information and grounds of belief shall be given. (c) Each application must identify any person whose interest the applicant believes may be affected by the proceeding before the Board. (d) Three copies of each application shall be filed with the Board. However, only one copy of the accompanying exhibits need be filed. (e) The Board will acknowledge the receipt of the application in writing and advise the applicant of the docket number assigned to the application." 10:10:5.0.2.5.18.1.12.6,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.6 Department participation.,DOE,,,,"The Department shall be a party to all proceedings under this part, and the Office of the General Counsel will represent the Department's interests before the Board." 10:10:5.0.2.5.18.1.12.7,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.7 Designation of interested persons as parties.,DOE,,,,"In any proceeding under this part, the Board shall admit as a party any person, upon application of such person or on the Board's own initiative, whose interest may be affected by the proceeding." 10:10:5.0.2.5.18.1.12.8,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.8 Security.,DOE,,,,"In any proceeding under this part, the Board shall take such steps as necessary pursuant to chapter 12 of the Act and section 181 of the Act to assure compliance with Department security regulations and the common defense." 10:10:5.0.2.5.18.1.12.9,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,A,Subpart A—General Provisions,,§ 780.9 Make-up of the Patent Compensation Board.,DOE,,,"[77 FR 4887, Feb. 1, 2012]","The DOE Secretary of Energy, or a person acting in that position, shall appoint a three member panel to serve as the Patent Compensation Board to hear and decide cases falling under the subject matter jurisdiction set forth in § 780.3 of this part. The Secretary of Energy shall further designate one member as the chairman. The Board may be appointed to hear cases on an ad hoc basis, or on other such term of service deemed appropriate by the Secretary. All proceedings shall be conducted pursuant to rules of procedure provided by the Board." 10:10:5.0.2.5.18.2.12.1,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,B,Subpart B—Declaring Patents Affected With the Public Interest Under Section 153a of the Atomic Energy Act of 1954,,§ 780.20 Initiation of proceeding.,DOE,,,,"When any person in the Department believes that the Department should declare a patent affected with the public interest pursuant to section 153a of the Act, that person shall make such a recommendation to the Under Secretary. If, after consultation with the General Counsel, the Under Secretary agrees with the recommendation, the Under Secretary shall initiate in writing a proceeding under section 153a before the Board. The communication of the Under Secretary to the Board shall identify the patent and state the basis for the proposed declaration." 10:10:5.0.2.5.18.2.12.2,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,B,Subpart B—Declaring Patents Affected With the Public Interest Under Section 153a of the Atomic Energy Act of 1954,,§ 780.21 Notice.,DOE,,,,"The Board will serve upon the patent owner and all other parties a written notice of the Department's proposed action to declare the patent affected with the public interest, and the notice shall identify the patent and state the basis for the proposed declaration." 10:10:5.0.2.5.18.2.12.3,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,B,Subpart B—Declaring Patents Affected With the Public Interest Under Section 153a of the Atomic Energy Act of 1954,,"§ 780.22 Opposition, support and request for hearing.",DOE,,,,"(a) Any party may, within thirty (30) days after service of the notice or such other time as may be provided by the terms of the notice, file with the Board a written statement in opposition to or in support of the Department's proposed action. Such statement may also include a request for hearing. The statement shall contain a concise description of the facts, law, or any other relevant matter which the party believes should be reviewed by the Board during its consideration of the proposed declaration. If the request for a hearing is timely received, the Board shall call a hearing and provide notice of the time and place to all parties. (b) Failure of all parties to oppose the proposed action or to request a hearing within the time specified in the notice shall be deemed an acquiescence to that action and may result in a declaration by the Board that the patent is affected with the public interest." 10:10:5.0.2.5.18.2.12.4,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,B,Subpart B—Declaring Patents Affected With the Public Interest Under Section 153a of the Atomic Energy Act of 1954,,§ 780.23 Hearing and decision.,DOE,,,,"If a timely request for a hearing is made by any party, the Board will proceed with a hearing and decision. If a hearing is not requested, the Board shall prepare and issue its decision on the record." 10:10:5.0.2.5.18.2.12.5,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,B,Subpart B—Declaring Patents Affected With the Public Interest Under Section 153a of the Atomic Energy Act of 1954,,§ 780.24 Criteria for declaring a patent affected with the public interest.,DOE,,,,"A patent shall be declared to be affected with the public interest pursuant to section 153a of the Act upon the Board's final decision that: (a) The invention or discovery covered by the patent is of primary importance in the production or utilization of special nuclear material or atomic energy; and (b) The licensing of such invention or discovery under section 153 of the Act is of primary importance to effectuate the policies and purposes of the Act." 10:10:5.0.2.5.18.3.12.1,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,C,Subpart C—Application for a License Pursuant to Section 153b(2) of the Atomic Energy Act of 1954,,§ 780.30 Filing of application.,DOE,,,,"An applicant for a license pursuant to section 153b(2) of the Act, under a patent which the Department has declared to be affected with the public interest, shall file an application with the Board in accordance with § 780.5. The Board will docket the application and serve notice of the docketing upon all parties." 10:10:5.0.2.5.18.3.12.2,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,C,Subpart C—Application for a License Pursuant to Section 153b(2) of the Atomic Energy Act of 1954,,§ 780.31 Contents of application.,DOE,,,,"Each application shall contain, in addition to the requirements specified in § 780.5, the following information: (a) The activities in the production or utilization of special nuclear material or atomic energy to which applicant proposes to apply the patent license; (b) The nature and purpose of the applicant's intended use of the patent license; (c) The relationship of the invention or discovery to the authorized activities to which it is to be applied, including an estimate of the effect on such activities stemming from the grant or denial of the license; (d) Efforts made by the applicant to obtain a patent license from the owner of the patent; (e) Terms, if any, on which the owner of the patent proposes to grant the applicant a patent license; (f) The terms the applicant proposes for the patent license; and (g) A request for either a hearing or a decision on the record." 10:10:5.0.2.5.18.3.12.3,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,C,Subpart C—Application for a License Pursuant to Section 153b(2) of the Atomic Energy Act of 1954,,§ 780.32 Response and request for hearing.,DOE,,,,"Any party within thirty (30) days after service of the notice of docketing of the application: (a) May file with the Board a response containing a concise statement of the facts or law or any other relevant information which that party believes should be considered by the Board in opposition to or in support of the proposed application; and (b) May file a request for a hearing or for a decision on the record." 10:10:5.0.2.5.18.3.12.4,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,C,Subpart C—Application for a License Pursuant to Section 153b(2) of the Atomic Energy Act of 1954,,§ 780.33 Hearing and decision.,DOE,,,,"If any party requests a hearing, the Board will proceed with a hearing and decision. If a hearing is not requested, the Board shall on the basis of the record prepare and issue its decision." 10:10:5.0.2.5.18.3.12.5,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,C,Subpart C—Application for a License Pursuant to Section 153b(2) of the Atomic Energy Act of 1954,,§ 780.34 Criteria for decision to issue a license.,DOE,,,"[46 FR 39581, Aug. 4, 1981, as amended at 58 FR 68734, Dec. 29, 1993]","A license shall issue to the applicant to use the invention covered by the patent declared to be affected with the public interest pursuant to subsection 153b(2) of the Act upon a final decision that: (a) The activities to which the patent license is proposed to be applied are of primary importance to the applicant's conduct of an activity authorized under the Act; and (b) The applicant has made efforts to obtain reasonable commercial terms and conditions and such efforts have not been successful within a reasonable period of time. The requirement to make such efforts may be waived by the Board in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. Where this requirement is waived due to national emergency or other circumstances of extreme urgency, the owner of the patent shall be notified as soon as reasonably practicable. Where this requirement is waived for a public non-commercial use, the owner of the patent shall be notified promptly." 10:10:5.0.2.5.18.3.12.6,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,C,Subpart C—Application for a License Pursuant to Section 153b(2) of the Atomic Energy Act of 1954,,§ 780.35 Communication of decision to General Counsel.,DOE,,,,"Following a determination to issue a patent license under section 153b(2) of the Act, the Board shall send the decision to the General Counsel and instruct the General Counsel to issue the license on terms deemed equitable by the Department and generally not less fair than those granted by the patentee or by the Department to similar licensees for comparable use." 10:10:5.0.2.5.18.3.12.7,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,C,Subpart C—Application for a License Pursuant to Section 153b(2) of the Atomic Energy Act of 1954,,§ 780.36 Conditions and issuance of license.,DOE,,,"[58 FR 68734, Dec. 29, 1993]","(a) Upon receipt of the Board's decision and instruction to issue a patent license, the General Counsel shall issue a license which complies with the following: (1) The scope and durations of such use shall be limited to the purpose for which it was authorized; (2) Such use shall be non-exclusive; (3) Such use shall be non-assignable, except with that part of the enterprise or goodwill that enjoys such use; (4) Any such use shall be authorized predominantly for the supply of the U.S. market; and, (5) Authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances that led to it cease to exist and are unlikely to recur. (b) The Board shall have the authority to review, on motivated request, the continued existence of these circumstances. The parties will propose and agree on a reasonable royalty fee within a reasonable time as determined by the General Counsel. A reasonable royalty shall provide adequate remuneration for the circumstances of each case, taking into account the economic value of the authorization. If a party does not agree with the terms and conditions of the license as determined by the General Counsel or if a royalty fee cannot be agreed upon within the reasonable time period established by the General Counsel, any party may, within 30 days after the expiration of such time period, initiate a proceeding before the Board, in accordance with subpart E of this part, for a reconsideration of the General Counsel's determination. After the proceeding under subpart E of this part is completed, the General Counsel shall modify the patent license in accordance with the Board's determination." 10:10:5.0.2.5.18.4.12.1,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,D,Subpart D—Application for a License Pursuant to Section 153c of the Atomic Energy Act of 1954,,§ 780.40 Filing of application.,DOE,,,,"An application to the Department, pursuant to section 153c of the Act, for the issuance of a license to use the invention or discovery covered by a patent useful in the production or utilization of special nuclear material or atomic energy shall be filed with the Board in accordance with requirements of § 780.5." 10:10:5.0.2.5.18.4.12.2,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,D,Subpart D—Application for a License Pursuant to Section 153c of the Atomic Energy Act of 1954,,§ 780.41 Contents of application.,DOE,,,,"In addition to the information specified in § 780.5, each application shall contain the following: (a) The applicant's contention, with supporting data, that the invention or discovery covered by the patent is of primary importance in the production or utilization of special nuclear material or atomic energy; (b) The applicant's contention, with supporting data, that the licensing of such invention or discovery is of primary importance to the conduct of the activities of the applicant, including information concerning: (1) The activities in the production or utilization of special nuclear material or atomic energy to which applicant proposes to apply the license; (2) The nature and purpose of the applicant's intended use of the patent license; and (3) The relationship of the invention or discovery to the activities to which it is to be applied, including an estimate of the effect of such activities stemming from the grant or denial of the license. (c) The applicant's contention, with supporting data, that the activities to which the patent license are proposed to be applied are of primary importance to the furtherance of policies and purposes of the Act; (d) The applicant's contention, with supporting data, that such applicant cannot otherwise obtain a patent license from the owner of the patent on terms which are reasonable for the applicant's intended use of the patent, including information concerning: (1) Efforts made by applicant to obtain a patent license from the owner of the patent; and (2) Terms, if any, on which the owner of the patent proposed to grant applicant a patent license. (e) The terms the applicant proposes as reasonable for the patent license; and (f) A copy of any license, permit, or lease obtained by the applicant under the procedures outlined in section 153(c) of the Act." 10:10:5.0.2.5.18.4.12.3,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,D,Subpart D—Application for a License Pursuant to Section 153c of the Atomic Energy Act of 1954,,§ 780.42 Notice of hearing.,DOE,,,,"Within thirty (30) days after the filing of the application, the Board will serve on all parties a notice of hearing to be held not later than sixty (60) days after the filing of the application." 10:10:5.0.2.5.18.4.12.4,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,D,Subpart D—Application for a License Pursuant to Section 153c of the Atomic Energy Act of 1954,,§ 780.43 Response.,DOE,,,,Any party may file a response with the Board containing a concise statement of the facts or law or any other relevant information in opposition to or in support of the application which that party believes should be considered by the Board. Such response must be filed by a party within twenty (20) days after being served a copy of the application. 10:10:5.0.2.5.18.4.12.5,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,D,Subpart D—Application for a License Pursuant to Section 153c of the Atomic Energy Act of 1954,,§ 780.44 Hearing and decision.,DOE,,,,"In accordance with section 153d of the Act, the Board shall hold a hearing and issue a final decision on the application." 10:10:5.0.2.5.18.4.12.6,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,D,Subpart D—Application for a License Pursuant to Section 153c of the Atomic Energy Act of 1954,,§ 780.45 Criteria for decision to issue a license.,DOE,,,"[46 FR 39581, Aug. 4, 1981, as amended at 58 FR 68734, Dec. 29, 1993]","A license shall issue to the applicant to use the invention covered by the patent for the purposes stated in the application upon a final decision that: (a) The invention or discovery covered by the patent is of primary importance in the production or utilization of special nuclear material or atomic energy; (b) The licensing of such invention or discovery is of primary importance to the conduct of the activities of the applicant; (c) The activities to which the patent license is proposed to be applied by such applicant are of primary importance to the furtherance of policies and purposes of the Act; and (d) The applicant has made efforts to obtain reasonable commercial terms and conditions and such efforts have not been successful within a reasonable period of time. The requirement to make such efforts may be waived by the Board in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. Where this requirement is waived due to national emergency or other circumstances of extreme urgency, the owner of the patent shall be notified as soon as reasonably practicable. Where this requirement is waived for a public non-commercial use, the owner of the patent shall be notified promptly." 10:10:5.0.2.5.18.4.12.7,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,D,Subpart D—Application for a License Pursuant to Section 153c of the Atomic Energy Act of 1954,,§ 780.46 Communication of decision to General Counsel.,DOE,,,,"When the Board decides to issue a patent license under section 153c of the Act, the Board shall send the decision to the General Counsel and instruct the General Counsel to issue the license on terms deemed equitable by the Department and generally not less fair than those granted by the patentee or by the Department to similar licensees for comparable use." 10:10:5.0.2.5.18.4.12.8,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,D,Subpart D—Application for a License Pursuant to Section 153c of the Atomic Energy Act of 1954,,§ 780.47 Conditions and issuance of license.,DOE,,,"[46 FR 39581, Aug. 4, 1981, as amended at 58 FR 68734, Dec. 29, 1993]","(a) Upon receipt of the Board's decision and instruction to issue a patent license, the General Counsel shall issue a license which complies with the following: (1) The scope and durations of such use shall be limited to the purpose for which it was authorized; (2) Such use shall be non-exclusive; (3) Such use shall be non-assignable, except with that part of the enterprise or goodwill that enjoys such use; (4) Any such use shall be authorized predominantly for the supply of the U.S. market; and, (5) Authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances that led to it cease to exist and are unlikely to recur. (b) The Board shall have the authority to review, on motivated request, the continued existence of these circumstances. The parties will propose and agree on a reasonable royalty fee within a reasonable time as determined by the General Counsel. A reasonable royalty shall provide adequate remuneration for the circumstances of each case, taking into account the economic value of the authorization. If a party does not agree with the terms and conditions of the license as determined by the General Counsel or if a royalty fee cannot be agreed upon within the reasonable time period established by the General Counsel, any party may, within 30 days after the expiration of such time period, initiate a proceeding before the Board, in accordance with subpart E of this part, for a reconsideration of the General Counsel's determination. After the proceeding under subpart E of this part is completed, the General Counsel shall modify the patent license in accordance with the Board's determination." 10:10:5.0.2.5.18.5.12.1,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,E,Subpart E—Application for Royalties and Awards Under Section 157 of the Atomic Energy Act of 1954 and Compensation Under Section 173 of the Atomic Energy Act of 1954 and the Invention Secrecy Act (35 U.S.C. 183),,§ 780.50 Applicants.,DOE,,,,"(a) Any owner or licensee of a patent licensed under section 158 or subsections b or e of section 153 of the Act may file an application with the Board for the determination of a reasonable royalty fee. (b) Any owner or licensee of a patent licensed under subsections b or e of section 153 of the Act may file an application with the Board for the modification of any terms and conditions of the license. (c) Any person who has made an invention or discovery useful in the production or utilization of special nuclear material or atomic energy, has complied with the provisions of section 151c, but, under the Act, is not entitled to a royalty for such invention or discovery, may file an application for an award. (d) Any owner of a patent application that contains restricted data not belonging to the United States which the Department has communicated to any foreign nation may make application for just compensation pursuant to section 173 of the Act. (e) Any patent applicant, whose patent is withheld because of a secrecy order issued at the request of the Department may, beginning at the date the patent applicant is notified that, except for such order, the application is otherwise in condition for allowance, apply for compensation for the damage caused by the secrecy order and/or for the use of the invention by the Government, resulting from any disclosure to the Department required by the Invention Secrecy Act." 10:10:5.0.2.5.18.5.12.2,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,E,Subpart E—Application for Royalties and Awards Under Section 157 of the Atomic Energy Act of 1954 and Compensation Under Section 173 of the Atomic Energy Act of 1954 and the Invention Secrecy Act (35 U.S.C. 183),,§ 780.51 Form and content.,DOE,,,,"(a) Each application shall contain a statement of the applicant's interest in the patent, patent application, invention or discovery and identify any other claimants of whom the applicant has knowledge. (b) Each application must contain a concise statement of all of the essential facts upon which it is based. No particular form of statement is required, but it will facilitate consideration of the application if the following specific data accompany the application: (1) In the case of an issued patent, a copy of the patent. (2) In the case of a patent application, a copy of the application and of all Patent and Trademark Office actions and responses thereto. (3) In the case of an invention or discovery as to which a report has been filed with the Department pursuant to subsection c of section 151 of the Act, a copy of such report. (4) In the case of an award, the date relied upon as the date of invention. (5) In all cases, a statement of the extent to which the invention or discovery was developed through federally financed research or with other Federal support. (6) In all cases, the degree of the utility, novelty, and importance of the invention or discovery. (7) In all cases, a statement of the actual use by the Federal Government or others of such invention or discovery, to the extent known to the applicant. (8) In all cases, the cost of developing the invention or discovery and acquiring the patent or patent application. (9) The royalty fee proposed, the proposed terms and conditions of a license agreement, or the amount sought as compensation or award, as well as the basis used in calculating such fee, compensation or award and whether a lump sum or periodic payments are sought. (10) In an application for just compensation pursuant to section 173 of the Act, the ownership of the invention that is the subject matter of the patent application at the time the Department communicated the restricted data shall be set forth, and any restricted data contained in the application shall be specifically identified. (11) In an application for compensation under the authority provided in the Invention Secrecy Act (35 U.S.C. 183), for the damage caused by imposition of a secrecy order on a patent application and/or for the use of the invention by the Government, the date of the secrecy order, the date of the notice that the patent application is in condition for allowance, and, if known to the applicant, the date of the first use of the invention by the Government." 10:10:5.0.2.5.18.5.12.3,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,E,Subpart E—Application for Royalties and Awards Under Section 157 of the Atomic Energy Act of 1954 and Compensation Under Section 173 of the Atomic Energy Act of 1954 and the Invention Secrecy Act (35 U.S.C. 183),,§ 780.52 Notice and hearing.,DOE,,,,"The Board shall, in its discretion, afford the applicable party an opportunity for a hearing for the presentation of relevant evidence. Thirty (30) days notice shall be given of the time and place of such hearing. After expiration of the notice period, the Board shall proceed with a hearing and render its decision." 10:10:5.0.2.5.18.5.12.4,10,Energy,III,,780,PART 780—PATENT COMPENSATION BOARD REGULATIONS,E,Subpart E—Application for Royalties and Awards Under Section 157 of the Atomic Energy Act of 1954 and Compensation Under Section 173 of the Atomic Energy Act of 1954 and the Invention Secrecy Act (35 U.S.C. 183),,"§ 780.53 Criteria for decisions for royalties, awards and compensation.",DOE,,,"[46 FR 39581, Aug. 4, 1981, as amended at 58 FR 68735, Dec. 29, 1993]","(a) In deciding a reasonable royalty fee for a patent licensed under section 158 or sections 153b or 153e of the Act, the Board shall consider: (1) The economic value of the compulsory license and the Board shall strive to provide adequate remuneration for the circumstances of each case. (2) Any defense, general or special, that a defendant could plead in an action for infringement; (3) The extent to which such patent was developed through federally financed research or with other Federal support; (4) The degree of utility, novelty, and importance of the invention or discovery; and (5) The cost to the owner of the patent of developing such invention or discovery or of acquiring such patent. (b) In deciding whether or not to grant an award, under section 157 of the Act, for the making of an invention or discovery useful in the production or utilization of special nuclear material or atomic energy, the Board shall take into account the considerations set forth in § 780.53(a) of this part and the actual use of such invention or discovery. (c) In deciding whether or not to provide compensation, pursuant to section 173 of the Act, to a person who owns a patent application that contains restricted data not belonging to the United States which the Department has communicated to a foreign nation, the Board shall take into account the considerations set forth in § 780.53(b) of this part and the damage to the applicant resulting from such communication. (d) In the course of its review of an application to provide compensation, pursuant to 35 U.S.C. 183, to an applicant whose patent was withheld because of a secrecy order issued at the request of the Department, the Board shall take into account the considerations set forth in § 780.53(b) of this part and: (1) The damage sustained by the applicant as a result of the secrecy order; and (2) The use of the invention by the Government resulting from the disclosure of such invention to the Department." 29:29:3.1.1.2.41.1.355.1,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.0 Purpose of interpretative bulletins in this part.,DOL-WHD,,,,"It is the purpose of the interpretative bulletins in this part to provide an official statement of the views of the Department of Labor with respect to the application and meaning of the provisions of the Fair Labor Standards Act of 1938, as amended, which exempt certain employees from the minimum wage or overtime pay requirements, or both, when employed in agriculture or in certain related activities or in certain operations with respect to agricultural or horticultural commodities." 29:29:3.1.1.2.41.1.355.10,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.9 Related exemptions are interpreted together.,DOL-WHD,,,,"The interpretations contained in the several subparts of this part 780 consider separately a number of exemptions which affect employees who perform activities in or connected with agriculture and its products. These exemptions deal with related subject matter and varying degrees of relationships between them were the subject of consideration in Congress before their enactment. Together they constitute an expression in some detail of existing Federal policy on the lines to be drawn in the industries connected with agriculture and agricultural products between those employees to whom the pay provisions of the Act are to be applied and those whose exclusion in whole or in part from the Act's requirements has been deemed justified. The courts have indicated that these exemptions, because of their relationship to one another, should be construed together insofar as possible so that they form a consistent whole. Consideration of the language and history of a related exemption or exemptions is helpful in ascertaining the intended scope and application of an exemption whose effect might otherwise not be clear ( Addison v. Holly Hill, 322 U.S. 607; Maneja v. Waialua, 349 U.S. 254; Bowie v. Gonzales (C.A. 1), 117 F. 2d 11). In the interpretations of the several exemptions discussed in the various subparts of this part 780, effect has been given to these principles and each exemption has been considered in its relation to others in the group as well as to the combined effect of the group as a whole." 29:29:3.1.1.2.41.1.355.11,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.10 Workweek standard in applying exemptions.,DOL-WHD,,,,"The workweek is the unit of time to be taken as the standard in determining the applicability of an exemption. An employee's workweek is a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week. If in any workweek an employee does only exempt work, he is exempt from the wage and hour 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 1 workweek and not in the next. But the burden of effecting segregation between exempt and nonexempt work as between particular workweeks is upon the employer." 29:29:3.1.1.2.41.1.355.12,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.11 Exempt and nonexempt work during the same workweek.,DOL-WHD,,,,"Where an employee in the same workweek performs work which is exempt under one section of the Act and also engages in work to which the Act applies but is not exempt under some other section of the Act, he is not exempt that week, and the wage and hour requirements of the Act are applicable (see Mitchell v. Hunt, 263 F. 2d 913; Mitchell v. Maxfield, 12 WH Cases 792 (S.D. Ohio), 29 Labor Cases 69, 781; Jordan v. Stark Bros. Nurseries, 45 F. Supp. 769; McComb v. Puerto Rico Tobacco Marketing Co-op Ass'n, 80 F. Supp. 953, affirmed 181 F. 2d 697; Walling v. Peacock Corp., 58 F. Supp. 880-883). On the other hand, an employee who performs exempt activities during a workweek will not lose the exemption by virtue of the fact that he performs other activities outside the scope of the exemption if the other activities are not covered by the Act." 29:29:3.1.1.2.41.1.355.13,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.12 Work exempt under another section of the Act.,DOL-WHD,,,,"The combination (tacking) of exempt work under one exemption with exempt work under another exemption is permitted. For instance, the overtime pay requirements are not considered applicable to an employee who does work within section 13(b)(12) for only part of a workweek if all of the covered work done by him during the remainder of the workweek is within one or more equivalent exemptions under other provisions of the Act. If the scope of such exemptions is not the same, however, the exemption applicable to the employee is equivalent to that provided by whichever exemption provision is more limited in scope. For instance, an employee who devotes part of a workweek to work within section 13(b)(12) and the remainder to work exempt under section 7(c) must receive the minimum wage and must be paid time and one-half for his overtime work during that week for hours over 10 a day or 50 a week, whichever provides the greater compensation. 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. The availability of a combination exemption depends on whether the employee meets all the requirements of each exemption which is sought to combine." 29:29:3.1.1.2.41.1.355.2,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.1 General scope of the Act.,DOL-WHD,,,,"The Fair Labor Standards Act is a Federal statute of general application which establishes minimum wage, overtime pay, equal pay, and child labor requirements that apply as provided in the Act. These requirements are applicable, except where exemptions are provided, to employees in those workweeks when they are engaged in interstate or foreign commerce or in the production of goods for such commerce or are employed in enterprises so engaged within the meaning of definitions set forth in the Act. Employers having such employees are required to comply with the Act's provisions in this regard unless relieved therefrom by some exemption in the Act, 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." 29:29:3.1.1.2.41.1.355.3,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.2 Exemptions from Act's requirements.,DOL-WHD,,,,"The Act provides a number of specific exemptions from the general requirements described in § 780.1. Some are exemptions from the overtime provisions only. Others are from the child labor provisions only. Several are exemptions from both the minimum wage and the overtime requirements of the Act. Finally, there are some exemptions from all three—minimum wage, overtime pay, and child labor requirements. An employer who claims an exemption under the Act has the burden of showing that it applies ( Walling v. General Industries Co., 330 U.S. 545; Mitchell v. Kentucky Finance Co., 359 U.S. 290). Conditions specified in the language of the Act are “explicit prerequisites to exemption” ( Arnold v. Kanowsky, 361 U.S. 388). “The details with which the exemptions in this Act have been made preclude their enlargement by implication” and “no matter how broad the exemption, it is meant to apply only to” the specified activities ( Addison v. Holly Hill, 322 U.S. 607; Maneja v. Waialua, 349 U.S. 254). Exemptions provided in the Act “are to be narrowly construed against the employer seeking to assert them” and their application limited to those who come “plainly and unmistakably within their terms and spirit” ( Phillips v. Walling, 334 U.S. 490; Mitchell v. Kentucky Finance Co., 359 U.S. 290; Arnold v. Kanowsky, 361 U.S. 388)." 29:29:3.1.1.2.41.1.355.4,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.3 Exemptions discussed in this part.,DOL-WHD,,,,"(a) The specific exemptions which the Act provides for employment in agriculture and in certain operations more or less closely connected with the agricultural industry are discussed in this part 780. These exemptions differ substantially in their terms, scope, and methods of application. Each of them is therefore separately considered in a subpart of this part which, together with this subpart A, constitutes the official interpretative bulletin of the Department of Labor with respect to that exemption. Exemptions from minimum wages and overtime pay and the subparts in which they are considered include the section 13(a)(6) exemptions for employees on small farms, family members, local hand harvest laborers, migrant hand harvest workers under 16, and range production employees discussed in subpart D of this part, and the section 13(a)(14) exemption for agricultural employees processing shade-grown tobacco discussed in subpart F of this part. (b) Exemptions from the overtime pay provisions and the subparts in which these exemptions are discussed include the section 13(b)(12) exemption (agriculture and irrigation) discussed in subpart E of this part, the section 13(b)(13) exemption (agriculture and livestock auction operations) discussed in subpart G of this part, the section 13(b)(14) exemption (country elevators) discussed in subpart H of this part, the section 13(b)(15) exemption (cotton ginning and sugar processing) discussed in subpart I of this part, and the section 13(b)(16) exemption (fruit and vegetable harvest transportation) discussed in subpart J of this part. (c) An exemption in section 13(d) of the Act from the minimum wage, overtime pay, and child labor provisions for certain homeworkers making holly and evergreen wreaths is discussed in subpart K of this part." 29:29:3.1.1.2.41.1.355.5,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.4 Matters not discussed in this part.,DOL-WHD,,,,"The application of provisions of the Fair Labor Standards Act other than the exemptions referred to in § 780.3 is not considered in this part 780. Interpretative bulletins published elsewhere in the Code of Federal Regulations deal with such subjects as the general coverage of the Act (part 776 of this chapter) and of the child labor provisions (subpart G of part 1500 of this title which includes a discussion of the exemption for children employed in agriculture outside of school hours), partial overtime exemptions provided for industries of a seasonal nature under sections 7(c) and 7(d) (part 526 of this chapter) and for industries with marked seasonal peaks of operations under section 7(d) (part 526 of this chapter), methods of payment of wages (part 531 of this chapter), computation and payment of overtime compensation (part 778 of this chapter), and hours worked (part 785 of this chapter). Regulations on recordkeeping are contained in part 516 of this chapter and regulations defining exempt administrative, executive, and professional employees, and outside salesmen are contained in part 541 of this chapter. Regulations and interpretations on other subjects concerned with the application of the Act are listed in the table of contents to this chapter. Copies of any of these documents may be obtained from any office of the Wage and Hour Division." 29:29:3.1.1.2.41.1.355.6,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.5 Significance of official interpretations.,DOL-WHD,,,,"The regulations in this part contain the official interpretations of the Department of Labor with respect to the application under described circumstances of the provisions of law which they discuss. 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 reexamination of an interpretation, that it is incorrect." 29:29:3.1.1.2.41.1.355.7,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.6 Basic support for interpretations.,DOL-WHD,,,,"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 bulletin 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 (Reorg. Pl. 6 of 1950, 64 Stat. 1263; Gen. Ord. 45A, May 24, 1950; 15 FR 3290; Secretary's Order 13-71, May 4, 1971, FR; Secretary's Order 15-71, May 4, 1971, FR). Interpretative rules under the Act as amended in 1966 are also authorized by section 602 of the Fair Labor Standards Amendments of 1966 (80 Stat. 830), which provides: “On and after the date of the enactment of this Act the Secretary is authorized to promulgate necessary rules, regulations, or orders with regard to the amendments made by this Act.” 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 bulletin where it appears that they will contribute to a better understanding of the interpretations." 29:29:3.1.1.2.41.1.355.8,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,§ 780.7 Reliance on interpretations.,DOL-WHD,,,,"The interpretations of the law contained in this part are official interpretations which may be relied upon as provided in section 10 of the Portal-to-Portal Act of 1947. In addition, the Supreme Court has recognized that such interpretations of this Act “provide a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it” and “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Further, as stated by the Court: “Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons.” ( Skidmore v. Swift, 323 U.S. 134). Some of the interpretations in this part are interpretations of exemption provisions as they appeared in the original Act before amendment in 1949, 1961, and 1966, which have remained unchanged because they are consistent with the amendments. These interpretations may be said to have congressional sanction because “When Congress amended the Act in 1949 it provided that pre-1949 rulings and interpretations by the Administrator should remain in effect unless inconsistent with the statute as amended. 63 Stat. 920.” ( Mitchell v. Kentucky Finance Co., 359 U.S. 290; accord, Maneja v. Waialua, 349 U.S. 254.)" 29:29:3.1.1.2.41.1.355.9,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",A,Subpart A—Introductory,,"§ 780.8 Interpretations made, continued, and superseded by this part.",DOL-WHD,,,,"On and after publication of this part 780 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 this part 780. 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 1966 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 in the consideration of the exemptions discussed. 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 Division, U.S. Department of Labor, Washington, DC 20210, or to any Regional Office of the Division." 29:29:3.1.1.2.41.10.396.1,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.900 Scope and significance of interpretative bulletin.,DOL-WHD,,,,"Subpart A of this part 780 and this subpart J together constitute the official interpretative bulletin of the Department of Labor with respect to the meaning and application of section 13(b)(16) of the Fair Labor Standards Act of 1938, as amended. This section provides exemption from the overtime pay provisions of the Act for employees engaging in specified transportation activities when fruits and vegetables are harvested. As appears more fully in subpart A of this part, interpretations in this bulletin with respect to the provisions of the Act discussed are official interpretations upon which reliance may be placed and which will guide the Secretary of Labor and the Administrator in the performance of their duties under the Act. The general exemption provided in sections 13(a)(6) and 13(b)(12) of the Act for employees employed in agriculture, are not discussed in this subpart except in their relation to section 13(b)(16). The meaning and application of these exemptions are fully considered in subparts D and E, respectively, of this part 780." 29:29:3.1.1.2.41.10.396.2,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.901 Statutory provisions.,DOL-WHD,,,,"Section 13(b)(16) of the Act exempts from the overtime provisions of section 7: Any employee engaged (A) in the transportation and preparation for transportation of fruits or vegetables, whether or not performed by the farmer, from the farm to a place of first processing or first marketing within the same State, or (B) in transportation, whether or not performed by the farmer, between the farm and any point within the same State of persons employed or to be employed in the harvesting of fruits or vegetables. Any employee engaged (A) in the transportation and preparation for transportation of fruits or vegetables, whether or not performed by the farmer, from the farm to a place of first processing or first marketing within the same State, or (B) in transportation, whether or not performed by the farmer, between the farm and any point within the same State of persons employed or to be employed in the harvesting of fruits or vegetables." 29:29:3.1.1.2.41.10.396.3,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.902 Legislative history of exemption.,DOL-WHD,,,,"Since the language of section 13(b)(16) and its predecessor, section 13(a)(22) is identical, the legislative history of former section 13(a)(22) still retains its pertinency and vitality. The former section 13(a)(22) was added to the Act by the Fair Labor Standards Amendments of 1961. The original provision in the House-passed bill was in the form of an amendment to the Act's definition of agriculture. It would have altered the effect of holdings of the courts that operations such as those described in the amendment are not within the agriculture exemption provided by section 13(a)(6) when performed by employees of persons other than the farmer. ( Chapman v. Durkin, 214 F. 2d 360, certiorari denied 348 U.S. 897; Fort Mason Fruit Co. v. Durkin, 214 F. 2d 363, certiorari denied, 348 U.S. 897.) The amendment was offered to exempt operations which, in the sponsor's view, were meant to be exempt under the original Act. (See 107 Cong. Rec. (daily ed.) p. 4523.) The Conference Committee, in changing the provision to make it a separate exemption made it clear that is was “not intended by the committee of conference to change by this exemption (for the described transportation employees) * * * the application of the Act to any other employees. Nor is it intended that there be any implication of disagreement by the conference committee with the principles and tests governing the application of the present agricultural exemption as enunciated by the courts.” (H. Rept. No. 327, 87th Cong., first session, p. 18.)" 29:29:3.1.1.2.41.10.396.4,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.903 General scope of exemption.,DOL-WHD,,,,"The exemption provided by section 13(b)(16) is in two parts, subsection (A), which exempts employees engaged in the described transportation and preparation for transportation of fruits or vegetables, and subsection (B) which exempts employees engaged in the specified transportation of employees who harvest fruits or vegetables. The transportation and preparation for transportation of fruits and vegetables must be from the farm to a place of first processing or first marketing located in the same State where the farm is located; the transportation of harvesters must be between the farm and a place located in the same State as the farm." 29:29:3.1.1.2.41.10.396.5,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.904 What determines the exemption.,DOL-WHD,,,,The application of the exemption provided by section 13(b)(16) depends on the nature of the employee's work and not on the character of the employer's business. An employee is not exempt in any workweek unless his employment in that workweek meets all the requirements for exemption. To determine whether an employee is exempt an examination should be made of the duties which that employee performs. Some employees of the employer may be exempt and others may not. 29:29:3.1.1.2.41.10.396.6,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.905 Employers who may claim exemption.,DOL-WHD,,,,"A nonfarmer, as well as a farmer, who has an employee engaged in the operations specified in section 13(b)(16) may take advantage of the exemption. Employees of contractual haulers, packers, processors, wholesalers, “bird-dog” operators, and others may qualify for exemption. If an employee is engaged in the specified operations, the exemption will apply “whether or not” these operations are “performed by the farmer” who has grown the harvested fruits and vegetables. Where such operations are performed by the farmer, the engagement by his employee in them will provide a basis for exemption under section 13(b)(16) without regard to whether the farmer is performing the operations as an incident to or in conjunction with his farming operations." 29:29:3.1.1.2.41.10.397.10,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.909 “Transportation.”,DOL-WHD,,,,"“Transportation,” as used in section 13(b)(16), refers to the movement by any means of conveyance of fruits or vegetables from the farm to a place of first processing or first marketing in the same State. It includes only those activities which are immediately necessary to move the fruits or vegetables to the specified points and the return trips. Drivers, drivers' helpers, loaders, and checkers perform work which is exempt. Transportation ends with delivery at the receiving platform of the place to which the fruits or vegetables are transported. ( Mitchell v. Budd, 350 U.S. 473.) Thus, unloading at the delivery point by employees who did not transport the commodities would not be a part of the transportation activities under section 13(b)(16)." 29:29:3.1.1.2.41.10.397.11,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.910 Engagement in transportation and preparation.,DOL-WHD,,,,"Since transportation and preparation for transportation are both exempt activities, an employee who engages in both is performing exempt work. In referring to “the transportation and preparation for transportation” of the fruits or vegetables, the statute recognizes the two activities as interrelated parts of the single task of moving the commodities from the farm to the designated points. Accordingly, the word “and” between the words “transportation” and “preparation” is not considered to require that any employee be employed in both parts of the task in order to be exempt. The exemption may apply to an employee engaged either in transporting or preparing the commodities for transportation if he otherwise qualifies under section 13(b)(16)." 29:29:3.1.1.2.41.10.397.12,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.911 Preparation for transportation.,DOL-WHD,,,,"The “preparation for transportation” of fruits or vegetables includes only those activities which are necessary to prepare the fruits or vegetables for transportation from the farm to the places described in section 13(b)(16). These preliminary activities on the farm will vary with the commodity involved, with the means of the transportation to be used, and with the nature of operations to be performed on the commodity after delivery." 29:29:3.1.1.2.41.10.397.13,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.912 Exempt preparation.,DOL-WHD,,,,"The following operations, if required in order to move the commodities from the farm and to deliver them to a place of first marketing or first processing, are considered preparation for transportation: Assembling, weighing, placing the fruits or vegetables in containers such as lugs, crates, boxes or bags, icing, marking, labeling or fastening containers, and moving the commodities from storage or concentration areas on the farm to loading sites." 29:29:3.1.1.2.41.10.397.14,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.913 Nonexempt preparation.,DOL-WHD,,,,"(a) Retail packing. Since the exemption, as expressly stated in section 13(b)(16), includes the transportation of the fruits or vegetables only to places of first marketing or first processing, packing or preparing for retail or further distribution beyond the place of first processing or first marketing is not exempt as “preparation for transportation.” ( Schultz v. Durrence (D. Ga.), 19 WH Cases 747, 63 CCH Lab. Cas. secs. 32, 387.) (b) Preparation for market. No exemption is provided under section 13(b)(16) for operations performed on the farm in preparation for market (such as ripening, cleaning, grading, or sorting) rather than in preparation for the transportation described in the section. Exemption, if any, for these activities should be considered under sections 13(a)(6) and 13(b)(12). (See subparts D and E of this part 780.) (c) Processing or canning. Processing is not exempt preparation for transportation. Thus, the canning of fruits or vegetables is not under section 13(b)(16)." 29:29:3.1.1.2.41.10.397.15,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.914 “From the farm.”,DOL-WHD,,,,The exemption applies only to employees whose work relates to transportation of fruits or vegetables “from the farm.” The phrase “from the farm” makes it clear that the preparation of the fruits or vegetables should be performed on the farm and that the first movement of the commodities should commence at the farm. A “farm” has been interpreted under the Act to mean a tract of land devoted to one or more of the primary branches of farming outlined in the definition of “agriculture” in section 3(f) of the Act. These expressly include the cultivation and tillage of the soil and the growing and harvesting of any agricultural or horticultural commodities. 29:29:3.1.1.2.41.10.397.16,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.915 “Place of first processing.”,DOL-WHD,,,,"Under section 13(b)(16) the fruits or vegetables may be transported to only two types of places. One is a “place of first processing”, which includes any place where canning, freezing, drying, preserving, or other operations which first change the form of the fresh fruits or vegetables from their raw and natural state are performed. (For overtime exemption applicable to “first processing,” see part 526 of this chapter.) A plant which grades and packs only is not a place of first processing ( Walling v. DeSoto Creamery and Produce Co., 51 F. Supp. 938). However, a packer's plant may qualify as a place of first marketing. (See § 780.916.)" 29:29:3.1.1.2.41.10.397.17,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.916 “Place of * * * first marketing.”,DOL-WHD,,,,"A “place of * * * first marketing” is the second of the two types of places to which the freshly harvested fruits or vegetables may be transported from the farm under the exemption provided by section 13(b)(16). Typically, a place of first marketing is a farmer's market of the kind to which “delivery to market” is made within the meaning of section 3(f) of the Act when a farmer delivers such commodities there as an incident to or in conjunction with his own farming operations. Under section 13(b)(16), of course, there is no requirement that the transportation be performed by or for a farmer or as an incident to or in conjunction with any farming operations. A place of first marketing may be described in general terms as a place at which the freshly harvested fruits or vegetables brought from the farm are first delivered for marketing, such as a packing plant or an establishment of a wholesaler or other distributor, cooperative marketing agency, or processor to which the fruits or vegetables are first brought from the farm and delivered for sale. A place of first marketing may also be a place of first processing (see Mitchell v. Budd, 350 U.S. 473) but it need not be. The “first place of packing” to which the just-harvested fruits or vegetables are transported from the farm is intended to be included. (See 107 Cong. Rec. (daily ed.) p. 4523.) Transportation to places which are not first processing or first marketing places is not exempt." 29:29:3.1.1.2.41.10.397.18,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.917 “Within the same State.”,DOL-WHD,,,,"To qualify for exemption under section 13(b)(16), the transportation of the fruits or vegetables must be made to the specified places “within the same State” in which the farm is located. Transportation is made to a place “within the same State” when the commodities are taken from the farm, hauled and delivered within the same State to first markets or first processors for sale or processing at the place of delivery. The exemption is not provided for transportation to any place of first marketing or first processing across State lines and does not apply to any part of the transportation within the State of fruits or vegetables destined for a place in another State at which they are to be first marketed or first processed. Transportation from the farm to an intermediate point in such a journey located within the same State would not qualify for exemption; it would make no difference that the intermediate point is a place of first marketing or first processing for other fruits or vegetables if it is not actually such for the fruits or vegetables being transported. On the other hand, where the place to which fruits or vegetables are transported from the farm within the same State is actually the place of first marketing or first processing of those very commodities, transportation of the goods across State lines by the first-market operator or first processor, after such delivery to him within the State, does not affect the nature of the delivery to him as one made within the State." 29:29:3.1.1.2.41.10.397.7,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.906 Requisites for exemption generally.,DOL-WHD,,,,"Section 13(b)(16), in clause (A), provides an exemption from the overtime pay provision of the Act for an employee during any workweek in which all the following conditions are satisfied: (a) The employee must be engaged “in the transportation and preparation for transportation of fruits and vegetables”; and (b) Such transportation must be transportation “from the farm”; and (c) The destination to which the fruits or vegetables are transported must be “a place of first processing or first marketing”; and (d) The transportation must be from the farm to such destination “within the same State”." 29:29:3.1.1.2.41.10.397.8,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.907 “Fruits or vegetables.”,DOL-WHD,,,,"The exempt operations of preparing for transportation and transporting must be performed with respect to “fruits or vegetables.” The intent of section 13(b)(16) is to exempt such operations on fruits or vegetables which are “just-harvested” and still in their raw and natural state. As explained at the time of adoption of the amendment on the floor of the House, the exemption was intended to eliminate the difference in treatment of farmers and nonfarmers with respect to exemption of such “handling or hauling of fruit or vegetables in their raw or natural state.” (See 107 Cong. Rec. (daily ed.) p. 4523.) Transporting and preparing for transportation other farm products which are not fruits or vegetables are not exempt under section 13(b)(16). For example, operations on livestock, eggs, tobacco, or poultry are nonexempt. Sugarcane is not a fruit or vegetable for purposes of this exemption ( Wirtz v. Osceola Farms Co., 372 F. 2d 584)." 29:29:3.1.1.2.41.10.397.9,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.908 Relation of employee's work to specified transportation.,DOL-WHD,,,,"In order for the exemption to apply to an employee, he must be engaged “in the transportation and preparation for transportation” of the just-harvested fruits or vegetables from the farm to the specified places within the same State. Engagement in other activities is not exempt work. The employee must be actually engaged in the described operations. The exemption is not available for other employees of the employer, such as office, clerical, and maintenance workers." 29:29:3.1.1.2.41.10.398.19,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.918 Requisites for exemption generally.,DOL-WHD,,,,"Section 13(b)(16), in clause (B), provides an exemption from the minimum wage and overtime pay provisions of the Act for an employee during any workweek in which all the following conditions are satisfied: (a) The employee must be engaged “in transportation” of harvest workers; and (b) The harvest workers transported must be “persons employed or to be employed in the harvesting of fruits or vegetables”; and (c) The employee's transportation of such harvest workers must be “between the farm and any point within the same State.”" 29:29:3.1.1.2.41.10.398.20,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.919 Engagement “in transportation” of harvest workers.,DOL-WHD,,,,"In order for the exemption to apply, the employees must be engaged “in transportation” of the specified harvest workers between the points stated in the statute. Actual engagement “in transportation” of such workers is required. Engagement in other activities is not exempt work. Drivers, driver's helpers, and others who are engaged in the actual movement of the persons transported may qualify for the exemption. Office employees, garage mechanics, and other employees of the employer who may perform supporting activities but do not engage in the actual transportation work do not come within the exemption. There is no restriction in the statute as to the means of conveyance used; the exempt transportation may be by land, air, or water in any vehicle or conveyance appropriate for the purpose. Employees of any employer who are engaged in the specified transportation activities may qualify for exemption; it is not necessary that the transportation be performed by the farmer. (See § 780.905.)" 29:29:3.1.1.2.41.10.398.21,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.920 Workers transported must be fruit or vegetable harvest workers.,DOL-WHD,,,,"Clause (B) of section 13(b)(16) exempts only those transportation employees who are engaged in transportation “of persons employed or to be employed in the harvesting of fruits or vegetables.” Transportation of harvest workers is not exempt unless the workers are fruit and vegetable harvest workers; transportation of workers employed or to be employed in harvesting or other commodities is not exempt work under section 13(b)(16). Wirtz v. Osceola Farms Co., 372 F. (2d) 584 (C.A. 5). Nor does the exemption apply to the transportation of persons for the purpose of planting or cultivating any crop, whether or not it is a fruit or a vegetable crop." 29:29:3.1.1.2.41.10.398.22,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.921 Persons “employed or to be employed” in fruit or vegetable harvesting.,DOL-WHD,,,,"The exemption applies to the transportation of persons “employed or to be employed” in the harvesting of fruits or vegetables. Included in this phrase are persons who at the time of transportation are currently employed in harvesting fruits or vegetables and others who, regardless of their occupation at such time, are being transported to be employed in such harvesting. The conveying of persons to a farm from a factory, packinghouse or processing plant would be exempt where their transportation is for the purpose of their employment in harvesting the named commodities. On the other hand, the transportation of harvest workers, who have been employed in the fruit or vegetable harvest, to such a plant for the purpose of their employment in the plant would not be exempt. The transportation must come within the intended scope of section 13(b)(16) which is to provide exemption for “transportation of the harvest crew to and from the farm” (see 107 Cong. Rec. daily ed. p. 4523)." 29:29:3.1.1.2.41.10.398.23,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.922 “Harvesting” of fruits or vegetables.,DOL-WHD,,,,"Only transportation of employees employed or to be employed in the “harvesting” of fruits or vegetables is exempt under clause (B) of section 13(b)(16). As indicated in § 780.920, such harvest workers do not include employees employed or to be employed in planting or cultivating the crop. Nor do they include employees employed or to be employed in operations subsequent to harvesting, even where such operations constitute “agriculture” within the definition in section 3(f) of the Act. “Harvesting” refers to the removal of fruits or vegetables from their growing position in the fields, and as explained in § 780.118 of this part, includes the operations customarily performed in connection with this severance of the crops from the soil (see Vives v. Serralles, 145 F. 2d 552), but does not extend to operations subsequent to and unconnected with the actual severance process or to operations performed off the farm. It may include moving the fruits or vegetables to concentration points on the farm, but would not include packingshed or other operations performed in preparation for market rather than as part of harvesting, such as ripening, cleaning, grading, sorting, drying, and storing. If the workers are employed or to be employed in “harvesting”, it does not matter for purposes of the exemption whether a farmer or someone else employs them or does the harvesting. It is the character of their employment as “harvesting” and not the identity of their employer or the owner of the crop which determines whether their transportation to and from the farm will provide a basis for exemption of the transportation of employees." 29:29:3.1.1.2.41.10.398.24,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",J,Subpart J—Employment in Fruit and Vegetable Harvest Transportation; Exemption From Overtime Pay Requirements Under Section 13(b)(16),,§ 780.923 “Between the farm and any point within the same State.”,DOL-WHD,,,,"The transportation of fruit or vegetable harvest workers is permitted “between the farm and any point within the same State”. The exempt transportation of such harvest workers therefore includes their movement to and from the farm (see 107 Cong. Rec. (daily ed.) p. 4523). Such transportation must, however, be from or to points “within the same State” in which the farm is located. Crossing of State lines is not contemplated. Thus, the exemption would not apply to day-haul transportation of fruit or vegetable harvest workers between a town in one State and farms located in another State. Also, the intent to exempt “transportation of the harvest crew to and from the farm” (see 107 Cong. Rec. (daily ed.) p. 4523) within a single State would not justify exemption of the transportation of workers from one State to another to engage in harvest work in the latter State. The exemption does not apply to transportation of persons on any trip, or any portion of a trip, in which the point of origin or point of destination is in another State. Subject to these limitations, however, where employees are being transported for employment in harvesting they may be picked up in any place within the State, including other farms, packing or processing establishments, factories, transportation terminals, and other places. The broad term “any point” must be interpreted in the light of the purpose of the exemption to facilitate the harvesting of fruits or vegetables. Transportation from a farm to “any point” within the same State (such as a factory or processing plant) where some other purpose than harvesting is served is not exempt." 29:29:3.1.1.2.41.11.399.1,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1000 Scope and significance of interpretative bulletin.,DOL-WHD,,,,"Subpart A of this part 780 and this subpart K together constitute the official interpretative bulletin of the Department of Labor with respect to the meaning and application of section 13(d) of the Fair Labor Standards Act of 1938, as amended. This section provides an exemption from the minimum wage, overtime pay, and child labor provisions of the Act for certain homeworkers employed in making wreaths from evergreens and in harvesting evergreens and other forest products for use in making wreaths. Attention is directed to the fact that a limited overtime exemption for employees employed in the decoration greens industry is provided under section 7(c) of the Act (see part 526 of this chapter). The section 7(c) exemption is not limited to homeworkers." 29:29:3.1.1.2.41.11.399.2,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1001 General explanatory statement.,DOL-WHD,,,,"Workers in rural areas sometimes engage, as a family unit, around the Christmas holidays, in gathering evergreens and making them into wreaths in their homes. Such workers, under well-settled interpretations by the Department of Labor and the courts, have been held to be employees of the firm which purchases the wreaths and furnishes the workers with wire used in making such wreaths." 29:29:3.1.1.2.41.11.400.10,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1009 Wreaths.,DOL-WHD,,,,The only product which may be produced under the section 13(d) exemption by a homeworker is a wreath having no less than the specified evergreen content. The making of a product other than a wreath is nonexempt even though it is made principally of evergreens. 29:29:3.1.1.2.41.11.400.11,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1010 Principally.,DOL-WHD,,,,"The exemption is intended to apply to the making of an evergreen wreath. Such a wreath is one made “principally” of evergreens. Principally means chiefly, in the main or mainly ( Hartford Accident and Indemnity Co. v. Casualty Underwriters Insurance Co., 130 F. Supp. 56). A wreath is made “principally” of evergreens when it is comprised mostly of evergreens. For example, where a wreath is composed of evergreens and other kinds of material, the evergreens should comprise a greater part of the wreath than all the other materials together, including materials such as frames, stands, and wires. The principal portion of a wreath may consist of any one or any combination of the evergreens listed in section 13(d), including “other evergreens.” The making of wreaths in which natural evergreens are a secondary component is not exempt." 29:29:3.1.1.2.41.11.400.12,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1011 Evergreens.,DOL-WHD,,,,"The material which must principally be used in making the wreaths is listed as “natural holly, pine, cedar, or other evergreens.” Other plants or materials cannot be used to satisfy this requirement." 29:29:3.1.1.2.41.11.400.13,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1012 Other evergreens.,DOL-WHD,,,,"The “other evergreens” of which the wreath may be principally made include any plant which retains its greenness through all the seasons of the year, such as laurel, ivy, yew, fir, and others. While plants other than evergreens may be used in making the wreaths, such plants, whether they are forest products cultivated plants, cannot be considered as part of the required principal evergreen component of the wreath." 29:29:3.1.1.2.41.11.400.14,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1013 Natural evergreens.,DOL-WHD,,,,"Only “natural” evergreens may comprise the principal part of the wreath. The word “natural” qualifies all of the evergreens listed in the section, including “other evergreens.” The term natural means that the evergreens at the time they are being used in making a wreath must be in the raw and natural state in which they have been harvested. Artificial evergreens ( Herring Magic v. U.S., 258 F. 2d 197; Cal. Casualty Indemnity Exchange v. Industrial Accident Commission of Cal. 90 P. 2d 289) or evergreens which have been processed as by drying and spraying with tinsel or by other means are not included. It is immaterial whether the natural evergreen used in making a wreath has been cultivated or is a product of the woods or forest." 29:29:3.1.1.2.41.11.400.15,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1014 Harvesting.,DOL-WHD,,,,"The homeworker is permitted to harvest evergreens and other forest products to be used in making the wreath. The word harvesting means the removal of evergreens and other forest products from their growing positions in the woods or forest, including transportation of the harvested products to the home of the homeworker and the performance of other duties necessary for such harvesting." 29:29:3.1.1.2.41.11.400.16,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1015 Other forest products.,DOL-WHD,,,,"The homeworker may also harvest “other forest products” for use in making wreaths. The term other forest products means any plant of the forest and includes, of course, deciduous plants as well." 29:29:3.1.1.2.41.11.400.17,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1016 Use of evergreens and forest products.,DOL-WHD,,,,"Harvesting of evergreens and other forest products is exempt only when these products will be “used in making such wreaths.” The phrase “used in making such wreaths” places a definite limitation on the purpose for which evergreens may be harvested under section 13(d). Harvesting of these materials for a use other than making wreaths is nonexempt. Also, such harvesting is nonexempt when the evergreens are used for wreathmaking by persons other than the homeworkers (see Mitchell v. Hunt, 263 F. 2d 913). For example, harvesting of evergreens for sale or distribution to an employer who uses them in his factory to make wreaths is not exempt." 29:29:3.1.1.2.41.11.400.3,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1002 Statutory requirements.,DOL-WHD,,,,"Section 13(d) of the Fair Labor Standards Act exempts from the minimum wage provisions of section 6, the overtime requirements of section 7 and the child labor restrictions of section 12: Any homeworker engaged in the making of wreaths composed principally of natural holly, pine, cedar, or other evergreens (including the harvesting of the evergreens or other forest products used in making such wreaths). Any homeworker engaged in the making of wreaths composed principally of natural holly, pine, cedar, or other evergreens (including the harvesting of the evergreens or other forest products used in making such wreaths)." 29:29:3.1.1.2.41.11.400.4,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1003 What determines the application of the exemption.,DOL-WHD,,,,The application of this exemption depends on the nature of the employee's work and not on the character of the employer's business. To determine whether an employee is exempt an examination should be made of the activities which that employee performs and the conditions under which he performs them. Some employees of the employer may be exempt and others may not. 29:29:3.1.1.2.41.11.400.5,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1004 General requirements.,DOL-WHD,,,,"The general requirements of the exemption are that: (a) The employee must be a homeworker; (b) The employee must be engaged in making wreaths as a homeworker; (c) The wreaths must be made principally of evergreens; (d) Any harvesting of the evergreens and other forest products by the homeworkers must be for use in making the wreaths by homeworkers." 29:29:3.1.1.2.41.11.400.6,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1005 Homeworkers.,DOL-WHD,,,,"The exemption applies to “any homeworker.” A homeworker within the meaning of the Act is a person who works for an employer in or about a home, apartment, tenement, or room in a residential establishment." 29:29:3.1.1.2.41.11.400.7,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1006 In or about a home.,DOL-WHD,,,,"Whether the work of an employee is being performed “in or about a home,” so that he may be considered a homeworker, must be determined on the facts in the particular case. In general, however the phrase “in or about a home” includes any home, apartment, or other dwelling place and surrounding premises, such yards, garages, sheds or basements. A convent, orphanage or similar institution is considered a home." 29:29:3.1.1.2.41.11.400.8,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1007 Exemption is inapplicable if wreath-making is not in or about a home.,DOL-WHD,,,,"The section 13(d) exemption does not apply when the wreaths are made in or about a place which is not considered a “home”. Careful consideration is required in many cases to determine whether work is being performed in or about a home. Thus, the circumstances under which an employee may engage in work in what ostensibly is a “home” may require the conclusion, on an examination of all the facts, that the work is not being performed in or about a home within the intent of the term and for purposes of section 13(d) of the Act." 29:29:3.1.1.2.41.11.400.9,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",K,"Subpart K—Employment of Home- workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)",,§ 780.1008 Examples of places not considered homes.,DOL-WHD,,,,"The following are examples of workplaces which, on examination, have been considered not to be a “home”: (a) Living quarters allocated to and regularly used solely for production purposes, where workers work regular schedules and are under constant supervision by the employer, are not considered to be a home. (b) While a convent, orphanage or similar institution is considered a home, an area in such place which is set aside for and used for sewing or other productive work under supervision is not a home. (c) Where an employee performs work on wreaths in a home and also engages in work on the wreaths for the employer during that workweek in a factory, he is not exempt in that week, since some of his work is not performed in a home." 29:29:3.1.1.2.41.2.355.1,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.100 Scope and significance of interpretative bulletin.,DOL-WHD,,,,"Subpart A of this part 780, this subpart B and subparts C, D, and E of this part together constitute the official interpretative bulletin of the Department of Labor with respect to the meaning and application of sections 3(f), 13(a)(6), and 13(b)(12) of the Fair Labor Standards Act of 1938, as amended. Section 3(f) defines “agriculture” as the term is used in the Act. Section 13(a)(6) provides exemption from the minimum wage and overtime pay provisions of the Act for certain employees employed in “agriculture,” as so defined. Section 13(b)(12) provides an overtime exemption for any employee employed in agriculture. As appears more fully in subpart A of this part 780, interpretations in this bulletin with respect to the provisions of the Act discussed are official interpretations upon which reliance may be placed and which will guide the Secretary of Labor and the Administrator in the performance of their duties under the Act." 29:29:3.1.1.2.41.2.355.2,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.101 Matters discussed in this subpart.,DOL-WHD,,,,"Section 3(f) defines “agriculture” as this term is used in the Act. Those principles and rules which govern the interpretation of the meaning and application of the Act's definition of “agriculture” in section 3(f) and of the terms used in it are set forth in this subpart B. Included is a discussion of the application of the definition in section 3(f) to the employees of farmers' cooperative associations. In addition, the official interpretations of section 3(f) of the Act and the terms which appear in it are to be taken into consideration in determining the meaning intended by the use of like terms in particular related exemptions which are provided by the Act." 29:29:3.1.1.2.41.2.355.3,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.102 Pay requirements for agricultural employees.,DOL-WHD,,,,"Section 6(a)(5) of the Act provides that any employee employed in agriculture must be paid at least $1.30 an hour beginning February 1, 1969. However, there are certain exemptions provided in the Act for agricultural workers, as previously mentioned. (See §§ 780.3 and 780.4.)" 29:29:3.1.1.2.41.2.355.4,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.103 “Agriculture” as defined by the Act.,DOL-WHD,,,,"Section 3(f) of the Act defines “agriculture” as follows: “Agriculture” includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. “Agriculture” includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." 29:29:3.1.1.2.41.2.355.5,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.104 How modern specialization affects the scope of agriculture.,DOL-WHD,,,,"The effect of modern specialization on agriculture has been discussed by the U.S. Supreme Court as 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 produce 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 powerplant 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 production of power and the manufacture of fertilizer are independent productive functions, not agriculture (see Farmers Reservoir Co. v. McComb, 337 U.S. 755 cf. Maneja v. Waialua, 349 U.S. 254). 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 produce 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 powerplant 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 production of power and the manufacture of fertilizer are independent productive functions, not agriculture (see Farmers Reservoir Co. v. McComb, 337 U.S. 755 cf. Maneja v. Waialua, 349 U.S. 254)." 29:29:3.1.1.2.41.2.355.6,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.105 “Primary” and “secondary” agriculture under section 3(f).,DOL-WHD,,,,"(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 engaged in agriculture 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. In other words, employees not employed in farming or by a farmer or on a farm are not employed in agriculture." 29:29:3.1.1.2.41.2.356.7,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.106 Employment in “primary” agriculture is farming regardless of why or where work is performed.,DOL-WHD,,,,"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 considered as employed in agriculture. 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)." 29:29:3.1.1.2.41.2.357.10,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.109 Determination of whether unlisted activities are “farming.”,DOL-WHD,,,,"Unlike the specifically enumerated operations, the phrase “farming in all its branches” does not clearly indicate its scope. In determining whether an operation constitutes “farming in all 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 § 780.104. For example, fish farming activities fall within the scope of the meaning of “farming in all its branches” and employers engaged in such operations would be employed in agriculture. On the other hand, 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 employed in agriculture. (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 considered agricultural workers because they are engaged in harvesting operations. (For exempt transportation, see subpart J of this part.)" 29:29:3.1.1.2.41.2.357.8,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.107 Scope of the statutory term.,DOL-WHD,,,,"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." 29:29:3.1.1.2.41.2.357.9,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.108 Listed activities.,DOL-WHD,,,,"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." 29:29:3.1.1.2.41.2.358.11,29,Labor,V,B,780,"PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT",B,Subpart B—General Scope of Agriculture,,§ 780.110 Operations included in “cultivation and tillage of the soil.”,DOL-WHD,,,,"“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. (See in this connection §§ 780.128 et seq. Also see Farmers Reservoir Co. v. McComb, 337 U.S. 755.) Other operations such as the commercial production and distribution of fertilizer are not included within the scope of agriculture. ( McComb v. Super-A Fertilizer Works, 165 F. 2d 824; Farmers Reservoir Co. v. McComb, 337 U.S. 755.)"