{"database": "openregs", "table": "cfr_sections", "is_view": false, "human_description_en": "where part_number = 784 sorted by section_id", "rows": [["10:10:5.0.2.5.22.0.16.1", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.1 Scope and applicability.", "DOE", "", "", "", "(a) This part states the policy and establishes the procedures, terms and conditions governing waiver of the Government's rights in inventions made under contracts, grants, agreements, understandings or other arrangements with the Department of Energy (DOE).\n\n(b) This part applies to all inventions conceived or first actually reduced to practice in the course of or under any contract, grant, agreement, understanding, or other arrangement with or for the benefit of DOE (including any subcontract, subgrant, or subagreement), the patent rights disposition of which is governed by section 152 of the Atomic Energy Act of 1954, 42 U.S.C. 2182, or section 9 of the Federal Nonnuclear Energy Research and Development Act of 1974, 42 U.S.C. 5908. In funding agreements with nonprofit organizations or small business firms, when title or other rights are reserved to the Government under the authority of 35 U.S.C. 202(a), this part will apply to any waiver of such rights. The patent waiver provisions in this part supersede the patent waiver regulations previously included with patent regulations at 41 CFR part 9-9.100."], ["10:10:5.0.2.5.22.0.16.10", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.10 Record of waiver determinations.", "DOE", "", "", "", "The Assistant General Counsel for Technology Transfer and Intellectual Property shall maintain and periodically update a publicly available record of waiver determinations."], ["10:10:5.0.2.5.22.0.16.11", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.11 Bases for granting waivers.", "DOE", "", "", "", "(a) The various factual situations which are appropriate for waivers cannot be categorized precisely because the appropriateness of a waiver will depend upon the manner in which the considerations set forth in \u00a7\u00a7 784.4 or 784.5, and 784.6 if applicable, of this part relate to the facts and circumstances surrounding the particular contracting situation or the particular invention, in order to best achieve the objectives set forth in \u00a7 784.3 of this part. However, some examples where advance waivers might be appropriate are:\n\n(1) Cost-shared contracts;\n\n(2) Situations in which DOE is providing increased funding to a specific ongoing privately-sponsored research, development, or demonstration project;\n\n(3) Situations such as Work for Others Agreements, User Facility Agreements or CRADAs, involving DOE-approved private use of Government facilities where the waiver requestor is funding a substantial part of the costs; and\n\n(4) Situations in which the equities of the contractor are so substantial in relation to that of the Government that the waiver is necessary to obtain the participation of the contractor.\n\n(b) Waivers may be granted as to all or any part of the rights of the United States to an invention subject to certain rights retained by the United States as set forth in \u00a7 784.12 of this part. The scope of the waiver will depend upon the relationship of the contractual situation or identified invention to considerations set forth in \u00a7\u00a7 784.4 or 784.5, and 784.6, if applicable, in order to best achieve the objectives set forth in \u00a7 784.3. For example, waivers may be restricted to a particular field of use in which the contractor has substantial equities or a commercial position, or restricted to those uses that are not the primary object of the contract effort. Waivers may also be made effective for a specified duration of time, may be limited to particular geographic locations, may require the contractor to license others at reduced royalties in consideration of the Government's contribution to the research, development, or demonstration effort, or may require return of a portion of the royalties or revenue to the Government.\n\n(c) Contractors shall not use their ability to award subcontracts as economic leverage to acquire rights for themselves in the subcontractor inventions, where the subcontractor(s) would prefer to petition for title. A waiver granted to a prime contractor is not normally applicable to inventions of subcontractors. However, in appropriate circumstances, the waiver given to the prime contractor may be made applicable to the waivable inventions of any or all subcontractors, such as where there are pre-existing special research and development arrangements between the prime contractor and subcontractor, or where the prime contractor and subcontractor are partners in a cooperative effort. In addition, in such circumstances, the prime contractor may be permitted to acquire nonexclusive licenses in the subcontractors' inventions when a waiver of the subcontractor inventions is not covered by the prime contractor's waiver.\n\n(d) In advance waivers of identified inventions, the invention will be deemed to be a subject invention and the waiver will be considered as being effective as of the effective date of the contract (see \u00a7 784.13(a)). This will be true regardless of whether the identified invention had been first actually reduced to practice prior to the time of contracting or would be reduced to practice under the contract or after expiration of the contract. One purpose of advance waivers of identified inventions is to establish the rights of the parties to such inventions when the facts surrounding the first actual reduction to practice prior to or during the contract are or will be difficult to establish."], ["10:10:5.0.2.5.22.0.16.12", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.12 Terms and conditions of waivers.", "DOE", "", "", "", "The terms and conditions for waivers are set forth in the \u201cPatent Rights\u2014Waiver\u201d clause in this section. A waiver of all foreign and domestic patent rights under a contract authorizes the use of this clause with any additions prescribed by the DOE Acquisition Regulations (48 CFR Chapter 9) or the terms of the waiver. This clause shall not be used in contracts with small business firms or nonprofit organizations subject to 35 U.S.C. 200  et seq.  If a waiver of different scope is granted, the clause shall be modified to conform to the scope of the waiver granted. Advance waivers for arrangements other than contracts, grants, and cooperative agreements may use other clause provisions approved by the Assistant General Counsel for Technology Transfer and Intellectual Property, except that all waivers for funding agreements shall be subject to the license of clause paragraph (b) and the provisions of clause paragraphs (i) and (j). The terms and conditions of the clause shall also constitute the basis for confirmatory licenses regarding waivers of identified inventions. For inventions under advance waivers, a duly executed and approved instrument fully confirmatory of all rights to which the Government is entitled is required to be submitted promptly after filing a patent application thereon. If, however, a waiver request is pending, delivery of the confirmatory instrument may be delayed until a determination on the waiver request is made. In the case of a waiver of an identified invention pursuant to a request for greater rights, the confirmatory instrument shall be agreed to or submitted to Patent Counsel before or at the time the waiver is granted.\n\nPatent Rights\u2014Waiver\n \n Use the clause at 48 CFR 52.227-12 with the following changes: \n \n (1) In paragraph (a) \u201cDefinitions\u201d add the following definitions: \n \n Background patent  means a domestic patent covering an invention or discovery which is not a Subject Invention and which is owned or controlled by the Contractor at any time through the completion of this contract: \n \n (i) Which the Contractor, but not the Government, has the right to license to others without obligation to pay royalties thereon, and \n \n (ii) Infringement of which cannot reasonably be avoided upon the practice of any specific process, method, machine, manufacture or composition of matter (including relatively minor modifications thereof) which is a subject of the research, development, or demonstration work performed under this contract. \n \n Contract  means any contract, grant, agreement, understanding, or other arrangement, which includes research, development, or demonstration work, and includes any assignment or substitution of parties. \n \n DOE patent waiver regulations  means the Department of Energy patent waiver regulations at 10 CFR part 784. \n \n Patent Counsel  means the Department of Energy Patent Counsel assisting the procuring activity. \n \n Secretary  means the Secretary of Energy. \n \n (2) In paragraph (a) in the definition of \u201cSubject invention\u201d substitute: \u201ccourse of or\u201d for: \u201cperformance of work\u201d. \n \n (3) In paragraph (b) \u201cAllocation of principal rights,\u201d add at the beginning of first sentence: \n \n \u201cWhereas DOE has granted a waiver of rights to subject inventions to the Contractor,\u201d. \n \n (4) In paragraph (c)(1), substitute: \n \n \u201cPatent Counsel within six months after conception or first actual reduction to practice, whichever occurs first in the course of or under this contract, but in any event, prior to any sale, public use, or public disclosure of such invention known to the Contractor.\u201d for. \n \n \u201cContractor officer within 2 months after the inventor discloses it in writing to Contractor Personnel responsible for Patent matters * * * earlier.\u201d\n \n (5) In paragraph (c)(2) add at the end: \u201cThe Contractor shall notify the Patent Counsel as to those countries (including the United States) in which the Contractor will retain title not later than 60 days prior to the end of the statutory period.\u201d \n \n (6) In paragraph (c)(3) substitute: \u201cbut not later than at least 60 days\u201d for \u201cor, if earlier,\u201d\n \n (7) In paragraph (d) add (d)(5): \n \n \u201c(5) If the waiver authorizing the use of this clause is terminated as provided in paragraph (p) of this clause.\u201d \n \n (8) In paragraph (e)(1) add: \u201cunder paragraph (d) of this clause\u201d after \u201cGovernment obtains title.\u201d \n \n (9) In paragraph (e)(2) substitute \u201c37 CFR part 404 and DOE licensing regulations.\u201d for \u201cthe Federal Property Management regulations and agency licensing regulations (if any)\u201d\n \n (10) In paragraph (f)(5) substitute \u201cthe course of or\u201d for \u201cperformance of work\u201d. \n \n (11) In paragraph (g) substitute paragraphs (1), (2) and (3) as follows: \n \n (1) Unless otherwise directed by the Contracting Officer, the Contractor shall include the clause at 48 CFR 952.227-11, suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental, or research work to be performed by a small business firm or nonprofit organization, except where the work of the subcontract is subject to an Exceptional Circumstances Determination by DOE. In all other subcontracts, regardless of tier, for experimental, developmental, demonstration, or research work, the Contractor shall include the patent rights clause at 48 CFR 952.227-13 (suitably modified to identify the parties). \n \n (2) The Contractor shall not, as part of the consideration for awarding the subcontract, obtain rights in the subcontractor's subject inventions. \n \n (3) In the case of subcontractors at any tier, Department, the subcontractor, and Contractor agree that the mutual obligations of the parties created by this clause constitute a contract between the subcontractor and the Department with respect to those matters covered by this clause. \n \n (12) Substitute the following for paragraph (k): \n \n (k) Background Patents \n \n (1) The Contractor agrees: \n \n (i) to grant to the Government a royalty-free, nonexclusive license under any Background Patent for purposes of practicing a subject of this contract by or for the Government in research, development, and demonstration work only. \n \n (ii) that, upon written application by DOE, it will grant to responsible parties for purposes of practicing a subject of this contract, nonexclusive licenses under any Background Patent on terms that are reasonable under the circumstances. If, however, the Contractor believes that exclusive or partially exclusive rights are necessary to achieve expeditious commercial development or utilization, then a request may be made to DOE for DOE approval of such licensing by the Contractor. \n \n (2) Notwithstanding paragraph (k)(1)(ii), the Contractor shall not be obligated to license any Background Patent if the Contractor demonstrates to the satisfaction of the Secretary or his designee that: \n \n (i) a competitive alternative to the subject matter covered by said Background Patent is commercially available from one or more other sources; or \n \n (ii) the Contractor or its licensees are supplying the subject matter covered by said Background Patent in sufficient quantity and at reasonable prices to satisfy market needs, or have taken effective steps or within a reasonable time are expected to take effective steps to so supply the subject matter. \n \n (13) Add new paragraph (l) Communications as follows: \n \n All reports and notifications required by this clause shall be submitted to the Patent Counsel unless otherwise instructed. \n \n (14) In paragraph (m) add to end of sentence: \u201c, except with respect to Background Patents, above.\u201d\n \n (15) In paragraph (n)(4) substitute \u201cconducted in such a manner as\u201d for \u201csubject to appropriate conditions.\u201d \n \n (16) In paragraph (o) add at the end of the parenthetical phrase in the heading to the paragraph: \u201cor grants\u201d. \n \n (17) In paragraph (o) add paragraph (o)(1)(v) as follows: \n \n (v) Convey to the Government, using a DOE-approved form, the title and/or rights of the Government in each subject invention as required by this clause. \n \n (18) In paragraph (o), substitute the following for (o)(3): \n \n (3) Final payment under this contract shall not be made before the Contractor delivers to the Patent Counsel all disclosures of subject inventions required by paragraph (c)(1) of this clause, an acceptable final report pursuant to paragraph (f)(7)(ii) of this clause, and all past due confirmatory instruments, and the Patent Counsel has issued a patent clearance certification to the Contracting Officer. \n \n (19) Add paragraphs (p), (q), (r), and (s) as follows: \n \n (p) Waiver Terminations. \n \n Any waiver granted to the Contractor authorizing the use of this clause (including any retention of rights pursuant thereto by the Contractor under paragraph (b) of this clause) may be terminated at the discretion of the Secretary or his designee in whole or in part, if the request for waiver by the Contractor is found to contain false material statements or nondisclosure of material facts, and such were specifically relied upon by DOE in reaching the waiver determination. Prior to any such termination, the Contractor will be given written notice stating the extent of such proposed termination and the reasons therefor, and a period of 30 days, or such longer period as the Secretary or his designee shall determine for good cause shown in writing, to show cause why the waiver of rights should not be so terminated. Any waiver termination shall be subject to the Contractor's minimum license as provided in paragraph (e) of this clause. \n \n (q) Atomic Energy. \n \n No claim for pecuniary award or compensation under the provisions of the Atomic Energy Act of 1954, as amended, shall be asserted by the Contractor or its employees with respect to any invention or discovery made or conceived in the course of or under this contract. \n \n (r) Publication. \n \n It is recognized that during the course of work under this contract, the Contractor or its employees may from time to time desire to release or publish information regarding scientific or technical developments conceived or first actually reduced to practice in the course of or under this contract. In order that public disclosure of such information will not adversely affect the patent interests of DOE or the Contractor, approval for release of publication shall be secured from Patent Counsel prior to any such release or publication. In appropriate circumstances, and after consultation with the Contractor, Patent Counsel may waive the right of prepublication review. \n \n (s) Forfeiture of rights in unreported subject inventions. \n \n (1) The Contractor shall forfeit and assign to the Government, at the request of the Secretary of Energy or designee, all rights in any subject invention which the Contractor fails to report to Patent Counsel within six months after the time the Contractor: \n \n (i) Files or causes to be filed a United States or foreign patent application thereon; or \n \n (ii) Submits the final report required by paragraph (e)(2)(ii) of this clause, whichever is later. \n \n (2) However, the Contractor shall not forfeit rights in a subject invention if, within the time specified in paragraph (m)(1) of this clause, the Contractor: \n \n (i) Prepares a written decision based upon a review of the record that the invention was neither conceived nor first actually reduced to practice in the course of or under the contract and delivers the decision to Patent Counsel, with a copy to the Contracting Officer; or \n \n (ii) Contending that the subject invention is not a subject invention, the Contractor nevertheless discloses the subject invention and all facts pertinent to this contention to the Patent Counsel, with a copy to the Contracting Officer, or \n \n (iii) Establishes that the failure to disclose did not result from the Contractor's fault or negligence. \n \n (3) Pending written assignment of the patent application and patents on a subject invention determined by the Contracting Officer to be forfeited (such determination to be a Final Decision under the Disputes clause of this contract), the Contractor shall be deemed to hold the invention and the patent applications and patents pertaining thereto in trust for the Government. The forfeiture provision of this paragraph shall be in addition to and shall not supersede any other rights and remedies which the Government may have with respect to subject inventions.\n\nUse the clause at 48 CFR 52.227-12 with the following changes:\n\n(1) In paragraph (a) \u201cDefinitions\u201d add the following definitions:\n\nBackground patent  means a domestic patent covering an invention or discovery which is not a Subject Invention and which is owned or controlled by the Contractor at any time through the completion of this contract:\n\n(i) Which the Contractor, but not the Government, has the right to license to others without obligation to pay royalties thereon, and\n\n(ii) Infringement of which cannot reasonably be avoided upon the practice of any specific process, method, machine, manufacture or composition of matter (including relatively minor modifications thereof) which is a subject of the research, development, or demonstration work performed under this contract.\n\nContract  means any contract, grant, agreement, understanding, or other arrangement, which includes research, development, or demonstration work, and includes any assignment or substitution of parties.\n\nDOE patent waiver regulations  means the Department of Energy patent waiver regulations at 10 CFR part 784.\n\nPatent Counsel  means the Department of Energy Patent Counsel assisting the procuring activity.\n\nSecretary  means the Secretary of Energy.\n\n(2) In paragraph (a) in the definition of \u201cSubject invention\u201d substitute: \u201ccourse of or\u201d for: \u201cperformance of work\u201d.\n\n(3) In paragraph (b) \u201cAllocation of principal rights,\u201d add at the beginning of first sentence:\n\n\u201cWhereas DOE has granted a waiver of rights to subject inventions to the Contractor,\u201d.\n\n(4) In paragraph (c)(1), substitute:\n\n\u201cPatent Counsel within six months after conception or first actual reduction to practice, whichever occurs first in the course of or under this contract, but in any event, prior to any sale, public use, or public disclosure of such invention known to the Contractor.\u201d for.\n\n\u201cContractor officer within 2 months after the inventor discloses it in writing to Contractor Personnel responsible for Patent matters * * * earlier.\u201d\n\n(5) In paragraph (c)(2) add at the end: \u201cThe Contractor shall notify the Patent Counsel as to those countries (including the United States) in which the Contractor will retain title not later than 60 days prior to the end of the statutory period.\u201d\n\n(6) In paragraph (c)(3) substitute: \u201cbut not later than at least 60 days\u201d for \u201cor, if earlier,\u201d\n\n(7) In paragraph (d) add (d)(5):\n\n\u201c(5) If the waiver authorizing the use of this clause is terminated as provided in paragraph (p) of this clause.\u201d\n\n(8) In paragraph (e)(1) add: \u201cunder paragraph (d) of this clause\u201d after \u201cGovernment obtains title.\u201d\n\n(9) In paragraph (e)(2) substitute \u201c37 CFR part 404 and DOE licensing regulations.\u201d for \u201cthe Federal Property Management regulations and agency licensing regulations (if any)\u201d\n\n(10) In paragraph (f)(5) substitute \u201cthe course of or\u201d for \u201cperformance of work\u201d.\n\n(11) In paragraph (g) substitute paragraphs (1), (2) and (3) as follows:\n\n(1) Unless otherwise directed by the Contracting Officer, the Contractor shall include the clause at 48 CFR 952.227-11, suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental, or research work to be performed by a small business firm or nonprofit organization, except where the work of the subcontract is subject to an Exceptional Circumstances Determination by DOE. In all other subcontracts, regardless of tier, for experimental, developmental, demonstration, or research work, the Contractor shall include the patent rights clause at 48 CFR 952.227-13 (suitably modified to identify the parties).\n\n(2) The Contractor shall not, as part of the consideration for awarding the subcontract, obtain rights in the subcontractor's subject inventions.\n\n(3) In the case of subcontractors at any tier, Department, the subcontractor, and Contractor agree that the mutual obligations of the parties created by this clause constitute a contract between the subcontractor and the Department with respect to those matters covered by this clause.\n\n(12) Substitute the following for paragraph (k):\n\n(k) Background Patents\n\n(1) The Contractor agrees:\n\n(i) to grant to the Government a royalty-free, nonexclusive license under any Background Patent for purposes of practicing a subject of this contract by or for the Government in research, development, and demonstration work only.\n\n(ii) that, upon written application by DOE, it will grant to responsible parties for purposes of practicing a subject of this contract, nonexclusive licenses under any Background Patent on terms that are reasonable under the circumstances. If, however, the Contractor believes that exclusive or partially exclusive rights are necessary to achieve expeditious commercial development or utilization, then a request may be made to DOE for DOE approval of such licensing by the Contractor.\n\n(2) Notwithstanding paragraph (k)(1)(ii), the Contractor shall not be obligated to license any Background Patent if the Contractor demonstrates to the satisfaction of the Secretary or his designee that:\n\n(i) a competitive alternative to the subject matter covered by said Background Patent is commercially available from one or more other sources; or\n\n(ii) the Contractor or its licensees are supplying the subject matter covered by said Background Patent in sufficient quantity and at reasonable prices to satisfy market needs, or have taken effective steps or within a reasonable time are expected to take effective steps to so supply the subject matter.\n\n(13) Add new paragraph (l) Communications as follows:\n\nAll reports and notifications required by this clause shall be submitted to the Patent Counsel unless otherwise instructed.\n\n(14) In paragraph (m) add to end of sentence: \u201c, except with respect to Background Patents, above.\u201d\n\n(15) In paragraph (n)(4) substitute \u201cconducted in such a manner as\u201d for \u201csubject to appropriate conditions.\u201d\n\n(16) In paragraph (o) add at the end of the parenthetical phrase in the heading to the paragraph: \u201cor grants\u201d.\n\n(17) In paragraph (o) add paragraph (o)(1)(v) as follows:\n\n(v) Convey to the Government, using a DOE-approved form, the title and/or rights of the Government in each subject invention as required by this clause.\n\n(18) In paragraph (o), substitute the following for (o)(3):\n\n(3) Final payment under this contract shall not be made before the Contractor delivers to the Patent Counsel all disclosures of subject inventions required by paragraph (c)(1) of this clause, an acceptable final report pursuant to paragraph (f)(7)(ii) of this clause, and all past due confirmatory instruments, and the Patent Counsel has issued a patent clearance certification to the Contracting Officer.\n\n(19) Add paragraphs (p), (q), (r), and (s) as follows:\n\n(p) Waiver Terminations.\n\nAny waiver granted to the Contractor authorizing the use of this clause (including any retention of rights pursuant thereto by the Contractor under paragraph (b) of this clause) may be terminated at the discretion of the Secretary or his designee in whole or in part, if the request for waiver by the Contractor is found to contain false material statements or nondisclosure of material facts, and such were specifically relied upon by DOE in reaching the waiver determination. Prior to any such termination, the Contractor will be given written notice stating the extent of such proposed termination and the reasons therefor, and a period of 30 days, or such longer period as the Secretary or his designee shall determine for good cause shown in writing, to show cause why the waiver of rights should not be so terminated. Any waiver termination shall be subject to the Contractor's minimum license as provided in paragraph (e) of this clause.\n\n(q) Atomic Energy.\n\nNo claim for pecuniary award or compensation under the provisions of the Atomic Energy Act of 1954, as amended, shall be asserted by the Contractor or its employees with respect to any invention or discovery made or conceived in the course of or under this contract.\n\n(r) Publication.\n\nIt is recognized that during the course of work under this contract, the Contractor or its employees may from time to time desire to release or publish information regarding scientific or technical developments conceived or first actually reduced to practice in the course of or under this contract. In order that public disclosure of such information will not adversely affect the patent interests of DOE or the Contractor, approval for release of publication shall be secured from Patent Counsel prior to any such release or publication. In appropriate circumstances, and after consultation with the Contractor, Patent Counsel may waive the right of prepublication review.\n\n(s) Forfeiture of rights in unreported subject inventions.\n\n(1) The Contractor shall forfeit and assign to the Government, at the request of the Secretary of Energy or designee, all rights in any subject invention which the Contractor fails to report to Patent Counsel within six months after the time the Contractor:\n\n(i) Files or causes to be filed a United States or foreign patent application thereon; or\n\n(ii) Submits the final report required by paragraph (e)(2)(ii) of this clause, whichever is later.\n\n(2) However, the Contractor shall not forfeit rights in a subject invention if, within the time specified in paragraph (m)(1) of this clause, the Contractor:\n\n(i) Prepares a written decision based upon a review of the record that the invention was neither conceived nor first actually reduced to practice in the course of or under the contract and delivers the decision to Patent Counsel, with a copy to the Contracting Officer; or\n\n(ii) Contending that the subject invention is not a subject invention, the Contractor nevertheless discloses the subject invention and all facts pertinent to this contention to the Patent Counsel, with a copy to the Contracting Officer, or\n\n(iii) Establishes that the failure to disclose did not result from the Contractor's fault or negligence.\n\n(3) Pending written assignment of the patent application and patents on a subject invention determined by the Contracting Officer to be forfeited (such determination to be a Final Decision under the Disputes clause of this contract), the Contractor shall be deemed to hold the invention and the patent applications and patents pertaining thereto in trust for the Government. The forfeiture provision of this paragraph shall be in addition to and shall not supersede any other rights and remedies which the Government may have with respect to subject inventions."], ["10:10:5.0.2.5.22.0.16.13", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.13 Effective dates.", "DOE", "", "", "", "Waivers shall be effective on the following dates:\n\n(a) For advance waivers of identified inventions, i.e., inventions conceived prior to the effective date of the contract, on the effective date of the contract, even though the advance waiver may have been requested after that date;\n\n(b) For identified inventions under advance waivers, i.e., inventions conceived or first actually reduced to practice after the effective date of the contract, on the date the invention is reported with the election to retain rights as to that invention; and\n\n(c) For waivers of identified inventions (other than under an advance waiver), on the date of the letter from Patent Counsel notifying the requestor that the waiver has been granted."], ["10:10:5.0.2.5.22.0.16.2", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.2 Definitions.", "DOE", "", "", "", "As used in this part:\n\nContract  means procurement contracts, grants, agreements, understandings and other arrangements (including Cooperative Research and Development Agreements [CRADAs], Work for Others and User Facility agreements, which includes research, development, or demonstration work, and includes any assignment or substitution of the parties, entered into, with, or for the benefit of DOE.\n\nContractor  means entities performing under contracts as defined above.\n\nPatent Counsel  means the DOE Patent Counsel assisting the contracting activity."], ["10:10:5.0.2.5.22.0.16.3", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.3 Policy.", "DOE", "", "", "", "(a) Section 6 of Public Law 96-517 (the Bayh-Dole patent and trademark amendments of 1980), as amended, as codified at 35 U.S.C. 200\u2014212, provides that title to inventions conceived or first actually reduced to practice in the course of or under any contract, grant, agreement, understanding, or other arrangement entered into with or for the benefit of the Department of Energy (DOE) vests in the United States, except where 35 U.S.C. 202 provides otherwise for nonprofit organizations or small business firms. However, where title to such inventions vests in the United States, the Secretary of Energy (hereinafter Secretary) or designee may waive all or any part of the rights of the United States, subject to required terms and conditions, with respect to any invention or class of inventions made or which may be made by any person or class of persons in the course of or under any contract of DOE if it is determined that the interests of the United States and the general public will best be served by such waiver. In making such determinations, the Secretary or designee shall have the following objectives:\n\n(1) Making the benefits of the energy research, development, and demonstration program widely available to the public in the shortest practicable time;\n\n(2) Promoting the commercial utilization of such inventions;\n\n(3) Encouraging participation by private persons in DOE's energy research, development, and demonstration programs; and\n\n(4) Fostering competition and preventing undue market concentration or the creation or maintenance of other situations inconsistent with the antitrust laws.\n\n(b) If it is not possible to attain the objectives in paragraphs (a)(1) through (4) immediately and simultaneously for any specific waiver determination, the Secretary or designee will seek to reconcile these objectives in light of the overall purposes of the DOE patent waiver policy, as set forth in section 152 of the Atomic Energy Act of 1954, 42 U.S.C. 2182, section 9 of the Federal Nonnuclear Energy Research and Development Act of 1974, 42 U.S.C. 5908, Public Law 99-661, 42 U.S.C. 7261a, and, where not inconsistent therewith, the Presidential Memorandum to the Heads of Executive Departments and Agencies on Government Patent Policy issued February 18, 1983 and Executive Order No. 12591 issued April 10, 1987.\n\n(c) The policy set forth in this section is applicable to all types of contracts as defined in \u00a7 784.2 of this part."], ["10:10:5.0.2.5.22.0.16.4", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.4 Advance waiver.", "DOE", "", "", "", "This section covers inventions that may be conceived or first actually reduced to practice in the course of or under a particular contract. In determining whether an advance waiver will best serve the interests of the United States and the general public, the Secretary or designee (currently the Assistant General Counsel for Technology Transfer and Intellectual Property) shall, at a minimum, specifically include as considerations the following:\n\n(a) The extent to which the participation of the contractor will expedite the attainment of the purposes of the program;\n\n(b) The extent to which a waiver of all or any part of such rights in any or all fields of technology is needed to secure the participation of the particular contractor;\n\n(c) The extent to which the work to be performed under the contract is useful in the production or utilization of special nuclear material or atomic energy;\n\n(d) The extent to which the contractor's commercial position may expedite utilization of the research, development, and demonstration results;\n\n(e) The extent to which the Government has contributed to the field of technology to be funded under the contract;\n\n(f) The purpose and nature of the contract, including the intended use of the results developed thereunder;\n\n(g) The extent to which the contractor has made or will make substantial investment of financial resources or technology developed at the contractor's private expense which will directly benefit the work to be performed under the contract;\n\n(h) The extent to which the field of technology to be funded under the contract has been developed at the contractor's private expense;\n\n(i) The extent to which the Government intends to further develop to the point of commercial utilization the results of the contract effort;\n\n(j) The extent to which the contract objectives are concerned with the public health, public safety, or public welfare;\n\n(k) The likely effect of the waiver on competition and market concentration;\n\n(l) In the case of a domestic nonprofit educational institution under an agreement not governed by Chapter 18 of Title 35, United States Code, the extent to which such institution has a technology transfer capability and program approved by the Secretary or designee as being consistent with the applicable policies of this section;\n\n(m) The small business status of the contractor under an agreement not governed by Chapter 18 of Title 35, United States Code, and\n\n(n) Such other considerations, such as benefit to the U.S. economy, that the Secretary or designee may deem appropriate."], ["10:10:5.0.2.5.22.0.16.5", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.5 Waiver of identified inventions.", "DOE", "", "", "", "This section covers the relinquishing by the Government to the contractor or inventor of title rights in a particular identified subject invention. In determining whether such a waiver of an identified invention will best serve the interests of the United States and the general public, the Secretary or designee shall, at a minimum, specifically include as considerations the following:\n\n(a) The extent to which such waiver is a reasonable and necessary incentive to call forth private risk capital for the development and commercialization of the invention;\n\n(b) The extent to which the plans, intentions, and ability of the contractor or inventor will obtain expeditious commercialization of such invention;\n\n(c) The extent to which the invention is useful in the production or utilization of special nuclear material or atomic energy;\n\n(d) The extent to which the Government has contributed to the field of technology of the invention;\n\n(e) The purpose and nature of the invention, including the anticipated use thereof;\n\n(f) The extent to which the contractor has made or will make substantial investment of financial resources or technology developed at the contractor's private expense which will directly benefit the commercialization of the invention;\n\n(g) The extent to which the field of technology of the invention has been developed at the contractor's expense;\n\n(h) The extent to which the Government intends to further develop the invention to the point of commercial utilization;\n\n(i) The extent to which the invention is concerned with the public health, public safety, or public welfare;\n\n(j) The likely effect of the waiver on competition and market concentration;\n\n(k) In the case of a domestic nonprofit educational institution under an agreement not governed by Chapter 18, Title 35, United States Code, the extent to which such institution has a technology transfer capability and program approved by the Secretary or designee as being consistent with the applicable policies of this section;\n\n(l) The small business status of the contractor, under an agreement not governed by Chapter 18 of Title 35, United States Code; and,\n\n(m) Such other considerations, such as benefit to the U.S. economy that the Secretary or designee may deem appropriate."], ["10:10:5.0.2.5.22.0.16.6", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.6 National security considerations for waiver of certain sensitive inventions.", "DOE", "", "", "", "(a) Whenever, in the course of or under any Government contract or subcontract of the Naval Nuclear Propulsion Program or the nuclear weapons programs or other atomic energy defense activities of the Department of Energy, a contractor makes an invention or discovery to which title vests in the Department of Energy pursuant to statute, the contractor may request waiver of any or all of the Government's property rights. The Secretary of Energy or designee may decide to waive the Government's rights.\n\n(b) In making a decision under this section, the Secretary or designee shall consider, in addition to the objectives of DOE waiver policy as specified in \u00a7 784.3(a)(1) through (4), and the considerations specified in \u00a7 784.4 for advance waivers, and \u00a7 784.5 for waiver of identified inventions, the following:\n\n(1) Whether national security will be compromised;\n\n(2) Whether sensitive technical information (whether classified or unclassified) under the Naval Nuclear Propulsion Program or the nuclear weapons programs or other atomic energy defense activities of the Department of Energy for which dissemination is controlled under Federal statutes and regulations will be released to unauthorized persons;\n\n(3) Whether an organizational conflict of interest contemplated by Federal statutes and regulations will result, and\n\n(4) Whether waiving such rights will adversely affect the operation of the Naval Nuclear Propulsion Program or the nuclear weapons programs or other atomic energy defense activities of the Department of Energy.\n\n(c) A decision under this \u00a7 784.6 shall be made within 150 days after the date on which a complete request for waiver, as described by paragraph (d) of this section, has been submitted to the Patent Counsel by the contractor.\n\n(d) In addition to the requirements for content which apply generally to all waiver requests under paragraph (a) of this section, a requestor must include a full and detailed statement of facts, to the extent known by or available to the requestor, directed to the considerations set forth in paragraphs (b)(1) through (4) of this section, as applicable. To be considered complete, a waiver request must contain sufficient information, in addition to the content requirements under paragraphs (a) and (b) of this section, to allow the Secretary or designee to make a decision under this section. For advance waiver requests, such information shall include, at a minimum:\n\n(1) An identification of all of the requestor's contractual arrangements involving the Government (including contracts, subcontracts, grants, or other arrangements) in which the technology involved in the contract was developed or used and any other funding of the technology by the Government, whether direct or indirect, involving any other party, of which the requestor is aware;\n\n(2) A description of the requestor's past, current, and future private investment in and development of the technology which is the subject of the contract. This includes expenditures not reimbursed by the Government on research and development which will directly benefit the work to be performed under the instant contract, the amount and percentage of contract costs to be shared by the requestor, the out-of-pocket costs of facilities or equipment to be made available by the requestor for performance of the contract work which are not charged directly or indirectly to the Government under contract, and the contractor's plans and intentions to further develop and commercialize the technology at private expense;\n\n(3) A description of competitive technologies or other factors which would ameliorate any anticompetitive effect of granting the waiver.\n\n(4) Identification of whether the contract pertains to work that is classified, or sensitive, i.e., unclassified but controlled pursuant to section 148 of the Atomic Energy Action of 1954, as amended (42 U.S.C. 2168), or subject to export control under Chapter 17 of the Military Critical Technology List (MCTL) contained in Department of Defense Directive 5230.25 including identification of all principal uses of the subject matter of the contract, whether inside or outside the contractor program, and an indication of whether any such uses involve classified or sensitive technologies.\n\n(5) Identification of all DOE and DOD programs and projects in the same general technology as the contract for which the requestor intends to be providing program planning advice or has provided program planning advice within the last three years.\n\n(e) For identified invention requests under this section, such requests shall include at a minimum:\n\n(1) A brief description of the intentions of the requestor (or its present or intended licensee) to commercialize the invention. This description should include:\n\n(i) Estimated expenditures,\n\n(ii) Anticipated steps,\n\n(iii) The associated time periods to bring the invention to commercialization, and\n\n(iv) A statement that requestor (or its present or intended licensee) has the capability to carry out its stated intentions.\n\n(2) A description of any continuing Government funding of the development of the invention (including investigation of materials or processes for use therewith), from whatever Government source, whether direct or indirect, and, to the extent known by the requestor, any anticipated future Government funding to further develop the invention.\n\n(3) A description of competitive technologies or other factors which would ameliorate any anticompetitive effects of granting the waiver.\n\n(4) A statement as to whether or not the requestor would be willing to reimburse the Department of Energy for any and all costs and fees incurred by the Department in the preparation and prosecution of the patent applications covering the invention that is the subject of the waiver request.\n\n(5) Where applicable, a statement of reasons why the request was not timely filed in accordance with the applicable patent rights clause of the contract, or why a request for an extension of time to file the request was not filed in a timely manner.\n\n(6) Identification of whether the invention pertains to work that is classified, or sensitive, i.e., unclassified but controlled pursuant to section 148 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2168), or subject to export control under Chapter 17 of the Military Critical Technology List (MCTL) contained in Department of Defense Directive 5230.25, including identification of all principal uses of the invention inside or outside the contractor program, and an indication of whether any such uses involve classified or sensitive technologies.\n\n(7) Identification of all DOE and DOD programs and projects in the same general technology as the invention for which the requestor intends to be providing program planning advice or has provided program planning advice within the last three years.\n\n(8) A statement of whether a classification review of the invention disclosure, any resulting patent application(s), and/or any reports and other documents disclosing a substantial portion of the invention, has been made, together with any determinations on the existence of classified or sensitive information in either the invention disclosure, the patent application(s), or reports or other documents disclosing a substantial portion of the invention; and\n\n(9) Identification of any and all proposals, work for other activities, or other arrangements submitted by the requestor, DOE, or a third party, of which requestor is aware, which may involve further funding of the work on the invention at either the contractor facility where the invention arose or another facility owned by the Government.\n\n(f) Patent Counsel will notify the requestor promptly if the waiver request is found not to be a complete request and, in that event, will provide the requestor with a reasonable period, not to exceed 60 days, to correct any such incompleteness. If requestor does not respond within the allotted time period, the waiver request will be considered to be withdrawn. If requestor responds within the allotted time period, but the submittal is still deemed incomplete or insufficient, the waiver request may be denied.\n\n(g) As set forth in paragraph (c) of this section, waiver decisions shall be made within 150 days after the date on which a complete request for waiver of such rights, as specified in this section, has been submitted by the requestor to the DOE Patent Counsel. If the original waiver request does not result in a communication from DOE Patent Counsel indicating that the request is incomplete, the 150-day period for decision commences on the date of receipt of the waiver request. If the original waiver request results in a communication from DOE Patent Counsel indicating that the request is incomplete, the 150-day period for decision commences on the date on which supplementary information is received by Patent Counsel sufficient to make the waiver request complete. For advance waiver requests, if requestor is not notified that the request is incomplete, the 150-day period for decision commences on the date of receipt of the request, or on the date on which negotiation of contract terms is completed, whichever is later.\n\n(h) Failure of DOE to make a patent waiver decision within the prescribed 150-day period shall in no way be construed as a grant of the waiver."], ["10:10:5.0.2.5.22.0.16.7", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.7 Class waiver.", "DOE", "", "", "", "This section covers relinquishing of patent title rights by the Government to a class of persons or to a class of inventions. The authorization for class waivers is to be found at 42 U.S.C. 5908(c). Class waivers may be appropriate in situations where all members of a particular class would likely qualify for an advance or identified invention waiver. Normally, class waivers are originated by the Department. However, any person with a direct and substantial interest in a DOE program may request a class waiver by forwarding a written request therefor to the Patent Counsel. While no particular format for requesting a class waiver is prescribed, any request for a class waiver and any resulting determination by the Secretary or designee must address the pertinent objectives and considerations set forth in \u00a7\u00a7 784.3(a), 784.4, 784.5, and 784.6."], ["10:10:5.0.2.5.22.0.16.8", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.8 Procedures.", "DOE", "", "", "", "(a) All requests for waivers shall be in writing. Each request for a waiver other than a class waiver shall include the information set forth in \u00a7 784.9. Such requests may be submitted by existing or prospective contractors in the case of requests for an advance waiver and by contractors, including successor contractors at a facility, or employee-inventors in the case of requests for waiver of identified inventions.\n\n(b) A request for an advance waiver should be submitted to the Contracting Officer (subcontractors may submit through their prime contractors) at any time prior to execution of the contract or subcontract, or within thirty days thereafter, or within such longer period as may be authorized by Patent Counsel for good cause shown in writing. If the purpose, scope, or cost of the contract is substantially altered by modification or extension after the waiver is granted, a new waiver request will be required. When advance waivers are granted, the provisions of the \u201cPatent Rights\u2014Waiver\u201d clause set forth in \u00a7 784.12 shall be used in contracts which are the subject of the waivers, unless modified with the approval of the Patent Counsel to conform to the scope of the waiver granted. (See \u00a7 784.12.) Advance waivers may be requested for all inventions which may be conceived or first actually reduced to practice under a DOE contract. An advance waiver may also be requested for an identified invention conceived by the contractor before the contract but which may be first actually reduced to practice under the contract. Such waiver request must include a copy of any patent or patent application covering the identified invention, or if no patent application has been filed, a complete description of the invention.\n\n(c) A request for waiver (other than an advance or class waiver) for an identified invention must be submitted to the Patent Counsel at the time the invention is to be reported to DOE or not later than eight months after conception and/or first actual reduction to practice, whichever occurs first in the course of or under the contract, or such longer period as may be authorized by Patent Counsel for good cause shown in writing by the requestor. The time for submitting a waiver request will not normally be extended past the time the invention has been advertised for licensing by DOE. If the Government has already filed a patent application on the invention, the requestor should indicate whether or not it is willing to reimburse the Government for the costs of searching, prosecution, filing and maintenance fees, in the event the waiver is granted.\n\n(d) If the request for waiver contains insufficient information, the Patent Counsel may seek additional information from the requestor and from other sources. The Patent Counsel will thoroughly analyze the request in view of each of the objectives and considerations and shall also consider the overall rights obtained by the Government in the patent, copyright, and data clauses of the contract. Where it appears that a waiver of a lesser part of the rights of the United States than requested would be more appropriate in view of the policies set forth, the Patent Counsel should attempt to negotiate a compromise acceptable to both the requestor and DOE. If approval of a waiver is recommended, Patent Counsel shall obtain an indication of agreement by the requestor to the proposed waiver scope, terms and conditions.\n\n(e) The Patent Counsel will prepare a Statement of Considerations setting forth the rationale for either approving or denying the waiver request and will forward the Statement to the General Counsel or designee for review thereof. While the Statement need not provide specific findings as to each and every consideration of \u00a7 784.4 or \u00a7 784.5 of this part, it will cover those that are decisive, and it will explain the basis for the recommended determination. There may be occasions when the application of the various individual considerations of \u00a7 784.4 or \u00a7 784.5 of this part to a particular case could conflict, and in those instances the conflict will be reconciled giving due regard to the overall policies set forth in 784.3(a) (1) through (4).\n\n(f) The Patent Counsel will also obtain comments from the appropriate DOE program organization to assist the Patent Counsel in the waiver determination. Additionally, if any other Federal Government entity has provided funding or will be providing funding, or if a subject invention has been made in whole or in part by an employee of that entity, Patent Counsel shall obtain permission to waive title to the undivided interest in the invention from the cognizant official of that entity. In situations where time does not permit a delay in contract negotiations for the preparation and mailing of a full written statement, field Patent Counsel may submit a recommendation on the waiver orally to the Assistant General Counsel for Technology Transfer and Intellectual Property, who upon verbal consultation with the appropriate DOE program organization, shall provide a verbal decision to field Patent Counsel. All oral actions shall be promptly confirmed in writing. In approving waiver determinations, the Secretary or designee shall objectively review all requests for waiver in view of the objectives and considerations set forth in \u00a7\u00a7 784.3 through 784.6. If the determination and the rationale therefor is not accurately reflected in the Statement of Considerations which has been submitted for approval, a new Statement of Considerations shall be prepared.\n\n(g) In the event that a request for advance waiver is approved after the effective date of the contract, the Patent Counsel shall promptly notify the requestor by letter of the determination and the basis therefor. The letter shall state the scope, terms and conditions of such waiver. If the terms and conditions of an approved advance waiver were not incorporated in the contract when executed, the letter shall inform the requestor that the advance waiver shall be effective as of the effective date of the contract for an advance waiver of inventions identified, i.e., conceived prior to the effective date of the contract, or as of the date the invention is reported with an election by the contractor to retain rights therein, i.e., for an invention conceived or first actually reduced to practice after the effective date of the contract; provided a copy of the letter is signed and returned to the Contracting Officer by the requestor acknowledging the acceptance of the scope, terms and conditions of the advance waiver. After acceptance by the contractor of an advance waiver, the Contracting Officer shall cause a unilateral no-cost modification to be made to the contract incorporating the terms and conditions of the waiver in lieu of previous patent rights provisions.\n\n(h) In the event that a waiver request is denied, the requestor may, within thirty days after notification of the denial, request reconsideration. Such a request shall include any additional facts and rationale not previously submitted which support the request. Request for reconsideration shall be submitted and processed in accordance with the procedures for submitting waiver requests set forth in this section."], ["10:10:5.0.2.5.22.0.16.9", 10, "Energy", "III", "", "784", "PART 784\u2014PATENT WAIVER REGULATION", "", "", "", "\u00a7 784.9 Content of waiver requests.", "DOE", "", "", "", "(a) Forms (OMB No. 1901-0800) for submitting requests for advance and identified invention waivers, indicating the necessary information, may be obtained from the Contracting Officer or Patent Counsel. All requests for advance and identified invention waivers shall include the following information:\n\n(1) The requestor's identification, business address, and, if represented by Counsel, the Counsel's name and address;\n\n(2) An identification of the pertinent contract or proposed contract and a copy of the contract Statement of Work or a nonproprietary statement which fully describes the proposed work to be performed;\n\n(3) The nature and extent of waiver requested;\n\n(4) A full and detailed statement of facts, to the extent known by or available to the requestor, directed to each of the considerations set forth in \u00a7\u00a7 784.4 or 784.5 of this part, as applicable, and a statement applying such facts and considerations to the policies set forth in \u00a7 784.3 of this part. It is important that this submission be tailored to the unique aspects of each request for waiver, and be as complete as feasible; and\n\n(5) The signature of the requestor or authorized representative with the following statement: \u201cThe facts set forth in this request for waiver are within the knowledge of the requestor and are submitted with the intention that the Secretary or designee rely on them in reaching the waiver determination.\u201d\n\n(b) In addition to the requirements of paragraph (a) of this section, requests for waiver of identified inventions shall include:\n\n(1) The full names of all inventors;\n\n(2) A statement of whether a patent application has been filed on the invention, together with a copy of such application if filed or, if not filed, a complete description of the invention;\n\n(3) If a patent application has not been filed, any information which may indicate a potential statutory bar to the patenting of the invention under 35 U.S.C. 102 or a statement that no such bar is known to exist; and\n\n(4) Where the requestor is the inventor, written authorization from the applicable contractor or subcontractor permitting the inventor to request a waiver.\n\n(c) Subject to statutes, DOE regulations, requirements, and restrictions on the treatment of proprietary and classified information; all material submitted in requests for waiver or in support thereof will be made available to the public after a determination on the waiver request has been made, regardless of whether a waiver is granted. Accordingly, requests for waiver should not normally contain information or data that the requestor is not willing to have made public. If proprietary or classified information is needed to make the waiver determination, such information shall be submitted only at the request of Patent Counsel."], ["15:15:3.1.1.2.22.0.1.1", 15, "Commerce and Foreign Trade", "VII", "D", "784", "PART 784\u2014COMPLEMENTARY ACCESS", "", "", "", "\u00a7 784.1 Complementary access: General information on the purpose of complementary access, affected locations, and the role of BIS.", "BIS", "", "", "", "(a)  Overview.  The Additional Protocol requires that the United States provide the IAEA with complementary access to locations specified in the U.S. declaration. The IAEA may request and be given complementary access to locations in the United States that are not included in the U.S. declaration as agreed to by the U.S. Government. The IAEA, upon request, will be granted complementary access to locations in the United States in accordance with the provisions of \u00a7 784.3 of the APR, which describes the scope and conduct of complementary access.\n\n(b)  Purposes authorized under the APR.  The APR authorize the conduct of complementary access, at locations in the United States, for the following purposes.\n\n(1)  Declared uranium hard-rock mines and ore beneficiation plants.  Complementary access may be conducted, on a selective basis, to verify the absence of undeclared nuclear material and nuclear related activities at reportable uranium hard-rock mines and ore beneficiation plants (see \u00a7 783.1(a)(3) of the APR).\n\n(2)  Other locations specified in the U.S. declaration and locations requested by the IAEA that are not included in the U.S. declaration as agreed to by the U.S. Government.  Complementary access may be conducted at other locations specified in the U.S. declaration (i.e., locations required to submit reports to BIS pursuant to \u00a7 783.1(a)(1), (a)(2), or (b) of the APR), and locations requested by the IAEA and agreed to by the U.S. Government, to resolve questions relating to the correctness and completeness of the information provided in the U.S. declaration or to resolve inconsistencies relating to that information.\n\n(i) In the event that the IAEA has a question about, or identifies an apparent inconsistency in, information contained in the U.S. declaration (e.g., information based on reports submitted to BIS by one of these locations, pursuant to \u00a7 783.1(a)(1), (a)(2), or (b) of the APR), the IAEA will provide the U.S. Government with an opportunity to clarify or resolve the question or inconsistency. The IAEA will not draw any conclusions about the question or inconsistency, or request complementary access to a location, until the U.S. Government has been provided with an opportunity to clarify or resolve the question or inconsistency, unless the IAEA considers that a delay in access would prejudice the purpose for which the access is sought.\n\n(ii) Upon receipt of a request from the IAEA for clarification concerning information contained in the U.S. declaration, BIS will provide written notification to the U.S. location. The U.S. location must provide BIS with all of the requested information to clarify or resolve the question or inconsistency raised by the IAEA. Unless informed otherwise by BIS, the U.S. location will have 15 calendar days from its receipt of written notification to submit the required forms to BIS (see the  Supplemental Information Report  requirements in \u00a7 783.1(d) of the APR).\n\n(c)  Locations subject to complementary access.  All locations specified in the U.S. declaration and other locations requested by the IAEA and agreed to by the U.S. Government are subject to complementary access by the IAEA. In cases where access cannot be provided to locations specified by the IAEA, BIS may seek to provide complementary access to adjacent locations or to satisfy the purposes of complementary access (see paragraph (b) of this section) through other means.\n\n(d)  Responsibilities of BIS.  As the lead U.S. Government agency and point of contact for organizing and facilitating complementary access pursuant to the APR, BIS will:\n\n(1) Serve as the official U.S. Government host to the IAEA inspection team;\n\n(2) Provide prior written notification to any location that is scheduled to undergo complementary access;\n\n(3) Take appropriate action to obtain an administrative warrant in the event that a location does not consent to complementary access;\n\n(4) Upon request of the location, dispatch an advance team, if time and other circumstances permit, to the location to provide administrative and logistical support for complementary access and to assist with preparation for such access;\n\n(5) Accompany the IAEA Team throughout the duration of complementary access;\n\n(6) Assist the IAEA Team with complementary access activities and ensure that each activity adheres to the provisions of the Additional Protocol and to the requirements of the APR and the Act, including the conditions of any warrant issued thereunder; and\n\n(7) Assist in the negotiation and development of a location-specific subsidiary arrangement between the U.S. Government and the IAEA, if appropriate (see \u00a7 784.5 of the APR).\n\nBIS may invite representatives from other U.S. Government agencies to participate as members of the Advance and Host Teams for complementary access. The Host Team will not include employees of the Environmental Protection Agency, the Mine Safety and Health Administration, or the Occupational Safety and Health Administration of the Department of Labor."], ["15:15:3.1.1.2.22.0.1.2", 15, "Commerce and Foreign Trade", "VII", "D", "784", "PART 784\u2014COMPLEMENTARY ACCESS", "", "", "", "\u00a7 784.2 Obtaining consent or warrants to conduct complementary access.", "BIS", "", "", "", "(a)  Procedures for obtaining consent.  (1) For locations specified in the U.S. declaration and other locations specified by the IAEA, BIS will seek consent pursuant to IAEA complementary access requests. In instances where the owner, operator, occupant or agent in charge of a location does not consent to such complementary access, BIS will seek administrative warrants as provided by the Act.\n\n(2) For locations specified by the IAEA where access cannot be provided, BIS may seek consent from an adjacent location pursuant to an IAEA complementary access request.\n\n(b)  Who may give consent.  The owner, operator, occupant or agent in charge of a location may consent to complementary access. The individual providing consent on behalf of the location represents that he or she has the authority to make this decision.\n\n(c)  Scope of consent.  (1) When the owner, operator, occupant, or agent in charge of a location consents to a complementary access request, he or she is agreeing to provide the IAEA Team with the same degree of access as that authorized under \u00a7 784.3 of the APR. This includes providing access for the IAEA Team and Host Team to any area of the location, any item on the location, and any records that are necessary to comply with the APR and allow the IAEA Team to accomplish the purpose of complementary access, as authorized under \u00a7 784.1(b)(1) or (b)(2) of the APR, except for the following:\n\n(i) Information subject to the licensing jurisdiction of the Directorate of Defense Trade Controls (DDTC), U.S. Department of State, under the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130)\u2014see \u00a7 784.3(b)(3) of the APR, which states that such access cannot be provided without prior U.S. Government authorization; and\n\n(ii) Activities with direct national security significance to the United States, or locations or information associated with such activities.\n\n(2) The Host Team Leader is responsible for determining whether or not the IAEA's request to obtain access to any area, building, or item, or to record or conduct the types of activities described in \u00a7 784.3 of the APR is consistent with the Additional Protocol and subsidiary arrangements to the Additional Protocol."], ["15:15:3.1.1.2.22.0.1.3", 15, "Commerce and Foreign Trade", "VII", "D", "784", "PART 784\u2014COMPLEMENTARY ACCESS", "", "", "", "\u00a7 784.3 Scope and conduct of complementary access.", "BIS", "", "", "", "(a)  General.  IAEA complementary access shall be limited to accomplishing only those purposes that are appropriate to the type of location, as indicated in \u00a7 784.1(b) of the APR and shall be conducted in the least intrusive manner, consistent with the effective and timely accomplishment of such purposes. No complementary access may take place without the presence of a U.S. Government Host Team. No information of direct national security significance shall be provided to the IAEA during complementary access.\n\n(b)  Scope.  This paragraph describes complementary access activities that are authorized under the APR.\n\n(1)  Complementary access activities.  Depending on the type of location accessed, the IAEA Team may:\n\n(i) Perform visual observation of parts or areas of the location;\n\n(ii) Utilize radiation detection and measurement devices;\n\n(iii) Utilize non-destructive measurements and sampling;\n\n(iv) Examine relevant records (i.e., records appropriate for the purpose of complementary access, as authorized under \u00a7 784.1(b) of the APR), except that the following records may not be inspected unless the Host Team leader, after receiving input from representatives of the location and consulting with other members of the Host Team, determines that such access is both appropriate and necessary to achieve the relevant purpose described in \u00a7 784.1(b)(1) or (b)(2) of the APR:\n\n(A) Financial data (other than production data);\n\n(B) Sales and marketing data (other than shipment data);\n\n(C) Pricing data;\n\n(D) Personnel data;\n\n(E) Patent data;\n\n(F) Data maintained for compliance with environmental or occupational health and safety regulations; or\n\n(G) Research data (unless the data are reported on Form AP-3 or AP-4);\n\n(v) Perform location-specific environmental sampling; and\n\nBIS will not seek access to a location for location-specific environmental sampling until the President reports to the appropriate congressional committees his determination to permit such sampling.\n\n(vi) Utilize other objective measures which have been demonstrated to be technically feasible and the use of which have been agreed to by the United States (\u201cobjective measures,\u201d as used herein, means any verification techniques that would be appropriate for achieving the official purpose of complementary access, both in terms of their effectiveness and limited intrusiveness).\n\n(2)  Wide Area Environmental Sampling.  In certain cases, IAEA inspectors may collect environmental samples (e.g., air, water, vegetation, soil, smears), at a location specified by the IAEA, for the purpose of assisting the IAEA to draw conclusions about the absence of undeclared nuclear material or nuclear activities over a wide area.\n\nThe IAEA will not seek such access until the use of wide-area environmental sampling and the procedural arrangements therefor have been approved by its Board of Governors and consultations have been held between the IAEA and the United States. BIS will not seek access to a location for wide-area sampling until the President reports to the appropriate congressional committees his determination to permit such sampling.\n\n(3)  ITAR-controlled technology.  ITAR-controlled technology shall not be made available to the IAEA Team without prior U.S. Government authorization. The owner, operator, occupant, or agent in charge of the location being accessed is responsible for identifying any ITAR-controlled technology at the location to the Host Team as soon as practicable following the receipt of notification from BIS of complementary access (see \u00a7 784.4(a) of the APR).\n\n(c)  Briefing.  Following the arrival of the IAEA Team and Host Team at a location subject to complementary access, and prior to the commencement of complementary access, representatives of the organization will provide the IAEA Team and Host Team with a briefing on the environmental, health, safety, and security regulations (e.g., regulations for protection of controlled environments within the location and for personal safety) that are applicable to the location and which must be observed. In addition, the organization's representatives may include in their briefing an overview of the location, the activities carried out at the location, and any administrative and logistical arrangements relevant to complementary access. The briefing may include the use of maps and other documentation deemed appropriate by the organization. The time spent for the briefing may not exceed one hour, and the content should be limited to that which relates to the purpose of complementary access. The briefing may also address any of the following:\n\n(1) Areas, buildings, and structures specific to any activities relevant to complementary access;\n\n(2) Administrative and logistical information;\n\n(3) Updates/revisions to reports required under the APR;\n\n(4) Introduction of key personnel at the location;\n\n(5) Location-specific subsidiary arrangement, if applicable; and\n\n(6) Proposed access plan to address the purpose of complementary access.\n\n(d)  Visual access.  The IAEA Team may visually observe areas or parts of the location, as agreed by the Host Team Leader, after the Host Team Leader has consulted with the organization's representative for the location.\n\n(e)  Records review.  The location must be prepared to provide the IAEA Team with access to all supporting materials and documentation used by the owner, operator, occupant, or agent in charge of the location to prepare reports required under the APR and to otherwise comply with the APR (see the records inspection and recordkeeping requirements in \u00a7\u00a7 786.1 and 786.2 of the APR and paragraph (b) of this section, which describes the scope of complementary access activities authorized under the APR) and with appropriate accommodations in which the IAEA Team can review these supporting materials and documentation. Such access will be provided in appropriate formats (e.g., paper copies, electronic remote access by computer, microfilm, or microfiche) through the Host Team to the IAEA Team during the complementary access period or as otherwise agreed upon by the IAEA Team and Host Team Leader. If the owner, operator, occupant, or agent in charge of the location does not have access to records for activities that took place under previous ownership, the previous owner must make such records available to the Host Team.\n\n(f)  Managed access.  As necessary, the Host Team will implement managed access measures (e.g., the removal of sensitive papers from office spaces and the shrouding of sensitive displays, stores, and equipment) to prevent the dissemination of proliferation sensitive information, to meet safety or physical protection requirements, to protect proprietary or commercially sensitive information, or to protect activities of direct national security significance to the United States, including locations or information associated with such activities. If the IAEA Team is unable to fully achieve its inspection aims under the managed access measures in place, the Host Team will make every reasonable effort to provide alternative means to allow the IAEA Team to meet these aims, consistent with the purposes of complementary access (as described in \u00a7 784.1(b) of the APR) and the requirements of this section. If a location-specific subsidiary arrangement applies (see \u00a7 784.5(b) of the APR), the Host Team shall, in consultation with the owner, operator, occupant, or agent in charge of the location, implement managed access procedures consistent with the applicable location-specific subsidiary arrangement.\n\n(g)  Hours of complementary access.  Consistent with the provisions of the Additional Protocol, the Host Team will ensure, to the extent possible, that each complementary access is commenced, conducted, and concluded during ordinary business hours, but no complementary access shall be prohibited or otherwise disrupted from commencing, continuing or concluding during other hours.\n\n(h)  Environmental, health, safety, and security regulations and requirements.  In carrying out their activities, the IAEA Team and Host Team shall observe federal, state, and local environmental, health, safety, and security regulations and environmental, health, safety, and security requirements established at the location, including those for the protection of controlled environments within a location and for personal safety. To the extent practicable, any such regulations and requirements that may apply to the conduct of complementary access at the location should be set forth in the location-specific subsidiary arrangement (if any).\n\n(i)  Host Team to accompany the IAEA Team.  The Host Team shall accompany the IAEA Team, during their complementary access at the location, in accordance with the provisions set forth in this part of the APR.\n\n(j)  Scope of authorized communications by the IAEA Team.  (1) The United States shall permit and protect free communications between the IAEA Team and IAEA Headquarters and/or Regional Offices, including attended and unattended transmission of information generated by IAEA containment and/or surveillance or measurement devices. The IAEA Team shall have the right, through consultation with the Host Team, to make use of internationally established systems of direct communications.\n\n(2) No document, photograph or other recorded medium, or sample relevant to complementary access may be removed or transmitted from the location by the IAEA Team without the prior consent of the Host Team.\n\n(k)  IAEA activities, findings, and results related to complementary access.  (1) In accordance with the Additional Protocol, the IAEA shall inform the United States of:\n\n(i) Any activities that took place in connection with complementary access to a location in the United States, including any activities concerning questions or inconsistencies that the IAEA may have brought to the attention of the United States, within 60 calendar days of the time that the activities occurred; and\n\n(ii) The findings or results of any activities that took place, including the findings and results of activities concerning questions or inconsistencies that the IAEA may have brought to the attention of the United States, within 30 calendar days of the time that such findings or results were reached by the IAEA.\n\n(2) BIS will provide the results of complementary access to the owner, operator, occupant, or agent in charge of the inspected location to the extent practicable."], ["15:15:3.1.1.2.22.0.1.4", 15, "Commerce and Foreign Trade", "VII", "D", "784", "PART 784\u2014COMPLEMENTARY ACCESS", "", "", "", "\u00a7 784.4 Notification, duration and frequency of complementary access.", "BIS", "", "", "", "(a)  Complementary access notification.  Complementary access will be provided only upon the issuance of a written notice by BIS to the owner, operator, occupant or agent in charge of the premises to be accessed. If BIS is unable to provide written notification to the owner, operator, or agent in charge, BIS may post a notice prominently at the location to be accessed.\n\n(1)  Content of notice \u2014(i)  Pertinent information furnished by the IAEA.  The notice shall include all appropriate information provided by the IAEA to the United States Government concerning:\n\n(A) The purpose of complementary access;\n\n(B) The basis for the selection of the location for complementary access;\n\n(C) The activities that will be carried out during complementary access;\n\n(D) The time and date that complementary access is expected to begin and its anticipated duration; and\n\n(E) The names and titles of the IAEA inspectors who will participate in complementary access.\n\n(ii)  Request for location's consent to complementary access.  The complementary access notification from BIS will request that the location inform BIS whether or not it will consent to complementary access. If a location does not agree to provide consent to complementary access within four hours of its receipt of the complementary access notification, BIS will seek an administrative warrant as provided in \u00a7 784.2(a)(1).\n\n(iii)  Availability of advance team from BIS.  An advance team from BIS will be available to assist the location in preparing for complementary access. If the complementary access is a 24-hour advance notice, then the availability of an advance team may be limited. The location requesting advance team assistance will not be required to reimburse the U.S. Government for any costs associated with these activities. The location (in cooperation with the advance team, if available) will make preparations for complementary access, including the identification of any ITAR-controlled technology and/or national security information at the location (see \u00a7 784.3(b)(3) of the APR).\n\n(2)  Notification procedures.  The following table sets forth the notification procedures for complementary access.\n\nTable to \u00a7 784.4( a )(2)\n\n(3)  Timing of notification.  In accordance with the Additional Protocol, the IAEA shall notify the United States Government of a complementary access request not less than 24 hours prior to the arrival of the IAEA Team at the location. BIS will provide written notice to the owner, operator, occupant or agent in charge of the location as soon as possible after BIS has received notification from the IAEA.\n\n(b)  Duration of complementary access.  The duration of complementary access will depend upon the nature of the complementary access request and the activities that will be conducted at the location. (See \u00a7 784.3(b) of the APR for a description of the types of complementary access activities authorized under the APR.)"], ["15:15:3.1.1.2.22.0.1.5", 15, "Commerce and Foreign Trade", "VII", "D", "784", "PART 784\u2014COMPLEMENTARY ACCESS", "", "", "", "\u00a7 784.5 Subsidiary arrangements.", "BIS", "", "", "", "(a)  General subsidiary arrangement.  The United States Government may conclude a general subsidiary arrangement with the IAEA that governs complementary access activities, irrespective of the location (i.e., an arrangement that is not location-specific).\n\n(b)  Location-specific subsidiary arrangement \u2014(1)  Purpose.  If requested by the location or deemed necessary by the U.S. Government, the U.S. Government will negotiate a location-specific subsidiary arrangement with the IAEA. The purpose of such an arrangement is to establish procedures for conducting managed access at a specific declared location. If the location requests, it may participate in preparations for the negotiation of a location-specific subsidiary arrangement with the IAEA and may observe the negotiations to the maximum extent practicable. The existence of a location-specific subsidiary arrangement does not in any way limit the right of the owner, operator, occupant, or agent in charge of the location to withhold consent to a request for complementary access.\n\n(2)  Format and content.  The form and content of a location-specific subsidiary arrangement will be determined by the IAEA and the U.S. Government, in consultation with the location, on a case-by-case basis."], ["15:15:3.1.1.2.22.0.1.6", 15, "Commerce and Foreign Trade", "VII", "D", "784", "PART 784\u2014COMPLEMENTARY ACCESS", "", "", "", "\u00a7 784.6 Post complementary access activities.", "BIS", "", "", "", "Upon receiving the IAEA's final report on complementary access, BIS will forward a copy of the report to the location for its review, in accordance with \u00a7 784.3(k)(2) of the APR. Locations may submit comments concerning the IAEA's final report to BIS, and BIS will consider them, as appropriate, when preparing its comments to the IAEA on the final report. BIS also will send locations a post complementary access letter detailing the issues that require follow-up action (see, for example, the  Amended Report  requirements in \u00a7 783.2(d) of the APR)."], ["29:29:3.1.1.2.44.1.423.1", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.0 Purpose.", "DOL-WHD", "", "", "", "It is the purpose of this part to provide an official statement of the views of the Department of Labor with respect to the meaning and application of sections 13(a)(5) and 13(b)(4) of the Fair Labor Standards Act, which govern the application of the minimum wage and overtime pay requirements of the Act to employees engaged in fishing and related activities and in operations on aquatic products. It is an objective of this part to make available in one place, the interpretations of law relating to such employment which will guide the Secretary of Labor and the Administrator in carrying out their responsibilities under the Act."], ["29:29:3.1.1.2.44.1.423.2", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.1 General scope of the Act.", "DOL-WHD", "", "", "", "The Fair Labor Standards Act, as amended, 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. Employers and employees in enterprises engaged in fishing and related activities, or in operations on aquatic products on shore, need to know how the Act applies to employment in these enterprises so that they may understand their rights and obligations under the law. All employees whose employment has the relationship to interstate or foreign commerce which the Act specifies are subject to the prescribed labor standards unless specifically exempted from them. Employers having such employees are required to comply with the Act's provisions in this regard and with specified recordkeeping requirements contained in part 516 of this chapter. The law authorizes the Department of Labor to investigate for compliance and, in the event of violations, to supervise the payment of unpaid minimum wages or unpaid overtime compensation owing to any employee. The law also provides for enforcement in the courts."], ["29:29:3.1.1.2.44.1.423.3", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.2 Matters discussed in this part.", "DOL-WHD", "", "", "", "This part discusses generally the provisions of the Act which govern its application to employers and employees in enterprises and establishments of the fisheries, seafood processing, and related industries. It discusses in some detail those exemption provisions of the Act in sections 13(a)(5) and 13(b)(4) which refer specifically to employees employed in described activities with respect to seafood and other forms of aquatic life."], ["29:29:3.1.1.2.44.1.423.4", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.3 Matters discussed in other interpretations.", "DOL-WHD", "", "", "", "Interpretations having general application to others subject to the law, as well as to fishermen and seafood canners, processors, or distributors and their employees, have been issued on a number of subjects of general interest. These will be found in other parts of this chapter. Reference should be made to them for guidance on matters which they discuss in detail, which this part does not undertake to do. They include part 776 of this chapter, discussing coverage; part 531 of this chapter, discussing payment of wages; part 778 of this chapter, discussing computation and payment of overtime compensation; part 785 of this chapter, discussing the calculation of hours worked; and part 800 of this chapter, discussing equal pay for equal work. Reference should also be made to subpart G of part 570 of this chapter, which contains the official interpretations of the child labor provisions of the Act."], ["29:29:3.1.1.2.44.1.423.5", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.4 Significance of official interpretations.", "DOL-WHD", "", "", "", "The regulations in this part contain the official interpretations of the Department of Labor pertaining to the exemptions provided in sections 13(a)(5) and 13(b)(4) of the Fair Labor Standards Act of 1938, as amended. It is intended that the positions stated will serve as \u201ca practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it\u201d ( Skidmore  v.  Swift,  323 U.S. 134, 138). These interpretations indicate the construction of the law which the Secretary of Labor and the Administrator believe to be correct and which will guide them in the performance of their duties under the Act, unless and until they are otherwise directed by authoritative decisions of the courts or conclude upon re-examination of an interpretation that it is incorrect. The interpretations contained herein may be relied upon in accordance with section 10 of the Portal-to-Portal Act (29 U.S.C. 251-262), so long as they remain effective and are not modified, amended, rescinded, or determined by judicial authority to be incorrect."], ["29:29:3.1.1.2.44.1.423.6", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.5 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 part are cited where it is believed they may be helpful. On matters which have not been determined by the courts, it is necessary for the Secretary of Labor and the Administrator to reach conclusions as to the meaning and the application of provisions of the law in order to carry out their responsibilities of administration and enforcement ( Skidmore  v.  Swift,  323 U.S. 134). In order that these positions may be made known to persons who may be affected by them, official interpretations are issued by the Administrator on the advice of the Solicitor of Labor, as authorized by the Secretary (Reorganization Plan 6 of 1950, 64 Stat. 1263; Gen. Ord. 45 A, May 24, 1950; 15 FR 3290). As included in the regulations in this part, these interpretations are believed to express the intent of the law as reflected in its provisions and as construed by the courts and evidenced by its legislative history. References to pertinent legislative history are made in this part where it appears that they will contribute to a better understanding of the interpretations."], ["29:29:3.1.1.2.44.1.423.7", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.6 Interpretations made, continued, and superseded by this part.", "DOL-WHD", "", "", "", "On and after publication of this part 784 in the  Federal Register,  the interpretations contained therein shall be in effect, and shall remain in effect until they are modified, rescinded, or withdrawn. This part supersedes and replaces the interpretations previously published in the  Federal Register  and Code of Federal Regulations as part 784 of this chapter. Prior opinions, rulings, and interpretations and prior enforcement policies which are not inconsistent with the interpretations in this part or with the Fair Labor Standards Act as amended are continued in effect; all other opinions, rulings, interpretations, and enforcement policies on the subjects discussed in the interpretations in this part are rescinded and withdrawn. The interpretations in this part provide statements of general principles applicable to the subjects discussed and illustrations of the application of these principles to situations that frequently arise. They do not and cannot refer specifically to every problem which may be met by employers and employees in the application of the Act. The omission to discuss a particular problem in this part or in interpretations supplementing it should not be taken to indicate the adoption of any position by the Secretary of Labor or the Administrator with respect to such problem or to constitute an administrative interpretation or practice or enforcement policy. Questions on matters not fully covered by this bulletin may be addressed to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210, or to any Regional Office of the Division."], ["29:29:3.1.1.2.44.1.424.10", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.9 \u201cPerson.\u201d", "DOL-WHD", "", "", "", "As used in the Act (including the definition of \u201centerprise\u201d set forth below in \u00a7 784.10), \u201cperson\u201d is defined as meaning \u201can individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons\u201d (Act, section 3(a))."], ["29:29:3.1.1.2.44.1.424.11", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.10 \u201cEnterprise.\u201d", "DOL-WHD", "", "", "", "The term \u201centerprise\u201d which may, in some situations, be pertinent in determining coverage of this Act to employees employed by employers engaged in the procurement, processing, or distribution of aquatic products, is defined in section 3(r) of the Act, section 3(r) states:\n\nEnterprise means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor * * *.\n\nEnterprise means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor * * *.\n\nThe scope and application of this definition is discussed in part 776 of this chapter."], ["29:29:3.1.1.2.44.1.424.12", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.11 \u201cEstablishment.\u201d", "DOL-WHD", "", "", "", "As used in the Act, the term \u201cestablishment\u201d, which is not specially defined therein, refers to a \u201cdistinct physical place of business\u201d rather than to \u201can entire business or enterprise\u201d which may include several separate places of business. This is consistent with the meaning of the term as it is normally used in business and in government, is judicially settled, and has been recognized in the Congress in the course of enactment of amendatory legislation ( Phillips  v.  Walling,  324 U.S. 490;  Mitchell  v.  Bekins Van & Storage Co.,  352 U.S. 1027; 95 Cong. Rec. 12505, 12579, 14877; H. Rept. No. 1453, 81st Cong., first session, p. 25). This is the meaning of the term as used in sections 3(r) and 3(s) of the Act."], ["29:29:3.1.1.2.44.1.424.13", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.12 \u201cCommerce.\u201d", "DOL-WHD", "", "", "", "\u201cCommerce\u201d as used in the Act includes interstate and foreign commerce. It is defined in section 3(b) of the Act to mean \u201ctrade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.\u201d (For the definition of \u201cState,\u201d see \u00a7 784.15.) The application of this definition and the kinds of activities which it includes are discussed at length in part 776 of this chapter dealing with the general coverage of the Act."], ["29:29:3.1.1.2.44.1.424.14", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.13 \u201cProduction.\u201d", "DOL-WHD", "", "", "", "To understand the meaning of \u201cproduction\u201d of goods for commerce as used in the Act it is necessary to refer to the definition in section 3(j) of the term \u201cproduced.\u201d A detailed discussion of the application of the term as defined is contained in part 776 of this chapter, dealing with the general coverage of the Act. Section 3(j) provides that \u201cproduced\u201d as used in the Act \u201cmeans produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.\u201d (For the definition of \u201cState\u201d see \u00a7 784.15.)"], ["29:29:3.1.1.2.44.1.424.15", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.14 \u201cGoods.\u201d", "DOL-WHD", "", "", "", "The definition in section 3(i) of the Act states that \u201cgoods,\u201d as used in the Act, means \u201cgoods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.\u201d Part 776 of this chapter, dealing with the general coverage of the Act, contains a detailed discussion of the application of this definition and what is included in it."], ["29:29:3.1.1.2.44.1.424.16", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.15 \u201cState.\u201d", "DOL-WHD", "", "", "", "As used in the Act, \u201cState\u201d means \u201cany State of the United States or the District of Columbia or any Territory or possession of the United States\u201d (Act, section 3(c)). The application of this definition in determining questions of \u201ccoverage under the Act's definition of \u201ccommerce\u201d and \u201cproduced\u201d (see \u00a7\u00a7 784.12, 784.13) is discussed in part 776 of this chapter, dealing with general coverage."], ["29:29:3.1.1.2.44.1.424.17", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.16 \u201cRegular rate.\u201d", "DOL-WHD", "", "", "", "As explained in part 778 of this chapter, dealing with overtime compensation, employees subject to the overtime pay provisions of the Act must generally receive for their overtime work in any workweek as provided in the Act not less than one and one-half times their regular rates of pay. Section 7(e) of the Act defines the term \u201cregular rate\u201d \u201cto include all remuneration for employment paid to, or on behalf of, the employee\u201d except certain payments which are expressly described in and excluded by the statutory definition. This definition, which is discussed at length in part 778 of this chapter, determines the regular rate upon which time and one-half overtime compensation must be computed under section 7(a) of the Act for employees within its general coverage who are not exempt from the overtime provisions under either of the fishery and seafood exemptions provided by sections 13(a)(5) and 13(b)(4) or under some other exemption contained in the Act."], ["29:29:3.1.1.2.44.1.424.8", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.7 Definition of terms used in the Act.", "DOL-WHD", "", "", "", "The meaning and application of the provisions of law discussed in this part depend in large degree on the definitions of terms used in these provisions. The Act itself defines some of these terms. Others have been defined and construed in decisions of the courts. In the following sections some of these basic definitions are set forth for ready reference in connection with the part's discussion of the various provisions in which they appear. These definitions and their application are further considered in other interpretative bulletins to which reference is made, and in the sections of this part where the particular provisions containing the defined terms are discussed."], ["29:29:3.1.1.2.44.1.424.9", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.8 \u201cEmployer,\u201d \u201cemployee,\u201d and \u201cemploy.\u201d", "DOL-WHD", "", "", "", "The Act's major provisions impose certain requirements and prohibitions on every \u201cemployer\u201d subject to their terms. The employment by an \u201cemployer\u201d of an \u201cemployee\u201d is, to the extent specified in the Act, made subject to minimum wage and overtime pay requirements and to prohibitions against the employment of oppressive child labor. The Act provides its own definitions of \u201cemployer,\u201d \u201cemployee\u201d and \u201cemploy,\u201d under which \u201ceconomic reality\u201d rather than \u201ctechnical concepts\u201d determines whether there is employment subject to its terms ( Goldberg  v.  Whitaker House Cooperative,  366 U.S. 28;  United States  v.  Silk,  331 U.S. 704;  Rutherford Food Corp.  v.  McComb,  331 U.S. 722). An \u201cemployer,\u201d as defined in section 3(d) of the Act, \u201cincludes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.\u201d An \u201cemployee,\u201d as defined in section 3(e) of the Act, \u201cincludes any individual employed by an employer,\u201d and \u201cemploy,\u201d as used in the Act, is defined in section 3(g) to include \u201cto suffer or permit to work.\u201d It should be noted, as explained in part 791 of this chapter, dealing with joint employment that in appropriate circumstances two or more employers may be jointly responsible for compliance with the statutory requirements applicable to employment of a particular employee. It should also be noted that \u201cemployer,\u201d \u201centerprise,\u201d and \u201cestablishment\u201d are not synonymous terms, as used in the Act. An employer may have an enterprise with more than one establishment, or he may have more than one enterprise in which he employs employees within the meaning of the Act. Also, there may be different employers who employ employees in a particular establishment or enterprise."], ["29:29:3.1.1.2.44.1.425.18", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.17 Basic coverage in general.", "DOL-WHD", "", "", "", "Except as otherwise provided in specific exemptions, the minimum wage, overtime pay, and child labor standards of the Act are generally applicable to employees who engage in specified activities concerned with interstate or foreign commerce. The employment of oppressive child labor in or about establishments producing goods for such commerce is also restricted by the Act. The monetary and child labor standards of the Act are also generally applicable to other employees, not specifically exempted, who are employed in specified enterprises engaged in such commerce or in the production of goods for such commerce. The employer must observe the monetary standards with respect to all such employees in his employ except those who may be denied one or both of these benefits by virtue of some specific exemption provision of the Act, such as section 13(a)(5) or 13(b)(4). It should be noted that enterprises having employees subject to these exemptions may also have other employees who may be exempt under section 13(a)(1) of the Act, subject to conditions specified in regulations, as employees employed in a bona fide executive, administrative, or professional capacity, or in the capacity of outside salesman. The regulations governing these exemptions are set forth and explained in part 541 of this chapter."], ["29:29:3.1.1.2.44.1.425.19", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.18 Commerce activities of employees.", "DOL-WHD", "", "", "", "The Fair Labor Standards Act has applied since 1938 to all employees, not specifically exempted, who are engaged (a) in interstate or foreign commerce or (b) in the production of goods for such commerce, which is defined to include any closely related process or occupation directly essential to such production (29 U.S.C. 206(a), 207(a); and see \u00a7\u00a7 784.12 to 784.15 for definitions governing the scope of this coverage). In general, employees of businesses concerned with fisheries and with operations on seafood and other aquatic products are engaged in interstate or foreign commerce, or in the production of goods for such commerce, as defined in the Act, and are subject to the Act's provisions except as otherwise provided in sections 13(a)(5) and 13(b)(4) or other express exemptions. A detailed discussion of the activities in commerce or in the production of goods for commerce which will bring an employee under the Act is contained in part 776 of this chapter, dealing with general coverage."], ["29:29:3.1.1.2.44.1.425.20", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.19 Commerce activities of enterprise in which employee is employed.", "DOL-WHD", "", "", "", "Under amendments to the Fair Labor Standards Act employees not covered by reason of their personal engagement in interstate commerce activities, as explained in \u00a7 784.18, are nevertheless brought within the coverage of the Act if they are employed in an enterprise which is defined in section 3(s) of the Act as an enterprise engaged in commerce or in the production of goods for commerce. Such employees, if not exempt from minimum wages and overtime pay under section 13(a)(5) or exempt from overtime pay under section 13(b)(4), will have to be paid in accordance with the monetary standards of the Act unless expressly exempt under some other provision. This would generally be true of employees employed in enterprises and by establishments engaged in the procurement, processing, marketing, or distribution of seafood and other aquatic products, where the enterprise has an annual gross sales volume of not less than $250,000. Enterprise coverage is more fully discussed in part 776 of this chapter, dealing with general coverage."], ["29:29:3.1.1.2.44.1.425.21", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.20 Exemptions from the Act's provisions.", "DOL-WHD", "", "", "", "The Act provides a number of specific exemptions from the general requirements previously described. Some are exemptions from the overtime 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\u2014minimum wage, overtime pay, and child labor requirements. An examination of the terminology in which the exemptions from the general coverage of the Fair Labor Standards Act are stated discloses language patterns which reflect congressional intent. Thus, Congress specified in varying degree the criteria for application of each of the exemptions and in a number of instances differentiated as to whether employees are to be exempt because they are employed by a particular kind of employer, employed in a particular type of establishment, employed in a particular industry, employed in a particular capacity or occupation or engaged in a specified operation. (See 29 U.S.C. 203(d); 207 (b), (c), (i); 213 (a), (b), (c), (d). And see  Addison  v.  Holly Hill,  322 U.S. 607;  Mitchell  v.  Trade Winds, Inc.,  289 F. 2d 278;  Mitchell  v.  Stinson,  217 F. 2d (210). In general there are no exemptions from the child labor requirements that apply in enterprises or establishments engaged in fishing or in operations on aquatic products (see part 570, subpart G, of this chapter). Such enterprises or establishments will, however, be concerned with the exemption from overtime pay in section 13(b)(4) of the Act for employees employed in specified \u201con-shore\u201d operations (see \u00a7 784.101), and the exemption from minimum wages and overtime pay provided by section 13(a)(5) for employees employed in fishing, fish-farming, and other specified \u201coff-shore\u201d operations on aquatic products. These exemptions, which are subject to the general rules stated in \u00a7 784.21, are discussed at length in subpart B of this part 784."], ["29:29:3.1.1.2.44.1.425.22", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "A", "Subpart A\u2014General", "", "\u00a7 784.21 Guiding principles for applying coverage and exemption provisions.", "DOL-WHD", "", "", "", "It is clear that Congress intended the Fair Labor Standards Act to be broad in its scope. \u201cBreadth of coverage is vital to its mission\u201d ( Powell  v.  U.S. Cartridge Co.,  339 U.S. 497). 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:  Tobin  v.  Blue Channel Corp.,  198 F. 2d 245, approved in  Mitchell  v.  Myrtle Grove Packing Co.,  350 U.S. 891;  Fleming  v.  Hawkeye Pearl Button Co.,  113 F. 2d 52). Conditions specified in the language of the Act are \u201cexplicit prerequisites to exemption\u201d ( Arnold  v.  Kanowsky,  361 U.S. 388). In their application, the purpose of the exemption as shown in its legislative history as well as its language should be given effect. However, \u201cthe details with which the exemptions in this Act have been made preclude their enlargement by implication\u201d and \u201cno matter how broad the exemption, it is meant to apply only to\u201d the specified activities ( Addison  v.  Holly Hill,  322 U.S. 607;  Maneja  v.  Waialua,  349 U.S. 254). Exemptions provided in the Act \u201care to be narrowly construed against the employer seeking to assert them\u201d and their application limited to those who come \u201cplainly and unmistakably within their terms and spirit.\u201d This construction of the exemptions is necessary to carry out the broad objectives for which the Act was passed ( Phillips  v.  Walling,  324 U.S. 490;  Mitchell  v.  Kentucky Finance Co.,  supra;  Arnold  v.  Kanowsky,  supra;  Calaf  v.  Gonzales,  127 F. 2d 934;  Bowie  v.  Gonzales,  117 F. 2d 11;  Mitchell  v.  Stinson,  217 F. 2d 210;  Fleming  v.  Hawkeye Pearl Button Co.,  113 F. 2d 52)."], ["29:29:3.1.1.2.44.2.426.1", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.100 The section 13(a)(5) exemption.", "DOL-WHD", "", "", "", "Section 13(a)(5) grants an exemption from both the minimum wage and the overtime requirements of the Act and applies to \u201cany employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning, or packing of such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee.\u201d"], ["29:29:3.1.1.2.44.2.426.2", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.101 The section 13(b)(4) exemption.", "DOL-WHD", "", "", "", "Section 13(b)(4) grants an exemption only from the overtime requirements of the Act and applies to \u201cany employee employed in the canning, processing, marketing, freezing, curing, storing, packing for shipment, or distributing of any kind of fish shellfish, or other aquatic forms of animal or vegetable life, or any byproduct thereof.\u201d"], ["29:29:3.1.1.2.44.2.427.3", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.102 General legislative history.", "DOL-WHD", "", "", "", "(a) As orginally enacted in 1938, the Fair Labor Standards Act provided an exemption from both the minimum wage requirements of section 6 and the overtime pay requirements of section 7 which was made applicable to \u201cany employee employed in the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds or other aquatic forms of animal and vegetable life, including the going to and returning from work and including employment in the loading, unloading, or packing of such products for shipment or in propagating, processing, marketing, freezing, canning, curing, storing, or distributing the above products or by products thereof\u201d (52 Stat. 1060, sec. 13(a)(5)).\n\n(b) In 1949 the minimum wage was extended to employees employed in canning such products by deleting the word \u201ccanning\u201d from the above exemption, adding the parenthetical phrase \u201c(other than canning)\u201d after the word \u201cprocessing\u201d therein, and providing a new exemption in section 13(b)(4), from overtime pay provisions only, applicable to \u201cany employee employed in the canning of any kind of fish, shellfish, or other aquatic forms of animal or vegetable life, or any byproduct thereof\u201d. All other employees included in the original minimum wage and overtime exemption remained within it (63 Stat. 910).\n\n(c) By the Fair Labor Standards Amendments of 1961, both these exemptions were further revised to read as set forth in \u00a7\u00a7 784.100 and 784.101. The effect of this change was to provide a means of equalizing the application of the Act as between canning employees and employees employed in other processing, marketing, and distributing of aquatic products on shore, to whom minimum wage protection, formerly provided only for canning employees, was extended by this action. The 1961 amendments, however, left employees employed in fishing, in fish farming, and in related occupations concerned with procurement of aquatic products from nature, under the existing exemption from minimum wages as well as overtime pay."], ["29:29:3.1.1.2.44.2.427.4", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.103 Adoption of the exemption in the original 1938 Act.", "DOL-WHD", "", "", "", "Although in the course of consideration of the legislation in Congress before passage in 1938, provisions to exempt employment in fisheries and aquatic products activities took various forms, section 13(a)(5), as drafted by the conference committee and finally approved, followed the language of an amendment adopted during consideration of the bill by the House of Representatives on May 24, 1938, which was proposed by Congressman Bland of Virginia. He had earlier on the same day, offered an amendment which had as its objective the exemption of the \u201cfishery industry,\u201d broadly defined. The amendment had been defeated (83 Cong. Rec. 7408), as had an amendment subsequently offered by Congressman Mott of Oregon (to a pending amendment proposed by Congressman Coffee of Nebraska) which would have provided an exemption for \u201cindustries engaged in producing, processing, distributing, or handling * * * fishery or seafood products which are seasonal or perishable\u201d (83 Cong. Rec. 7421-7423). Against this background, when Congressman Bland offered his amendment which ultimately became section 13(a)(5) of the Act he took pains to explain: \u201cThis amendment is not the same. In the last amendment I was trying to define the fishery industry. I am now dealing with those persons who are exempt, and I call the attention of the Committee to the language with respect to the employment of persons in agriculture * * * I am only asking for the seafood and fishery industry that which has been done for agriculture.\u201d It was after this explanation that the amendment was adopted (83 Cong. Rec. 7443). When the conference committee included in the final legislation this provision from the House bill, it omitted from the bill another House provision granting an hours exemption for employees \u201cin any place of employment\u201d where the employer was \u201cengaged in the processing of or in canning fresh fish or fresh seafood\u201d and the provision of the Senate bill providing an hours exemption for employees \u201cemployed in connection with\u201d the canning or other packing of fish, etc. (see  Mitchell  v.  Stinson,  217 F. 2d 210;  McComb  v.  Consolidated Fisheries,  75 F. Supp. 798). The indication in this legislative history that the exemption in its final form was intended to depend upon the employment of the particular employee in the specified activities is in accord with the position of the Department of Labor and the weight of judicial authority."], ["29:29:3.1.1.2.44.2.427.5", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.104 The 1949 amendments.", "DOL-WHD", "", "", "", "In deleting employees employed in canning aquatic products from the section 13(a)(5) exemption and providing them with an exemption in like language from the overtime provisions only in section 13(b)(4), the conferees on the Fair Labor Standards Amendments of 1949 did not indicate any intention to change in any way the category of employees who would be exempt as \u201cemployed in the canning of\u201d the aquatic products. As the Supreme Court has pointed out in a number of decisions, \u201cWhen 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\u201d ( Mitchell  v.  Kentucky Finance Co.,  359 U.S. 290). In connection with this exemption the conference report specifically indicates what operations are included in the canning process (see \u00a7 784.142). In a case decided before the 1961 amendments to the Act, this was held to \u201cindicate that Congress intended that only those employees engaged in operations physically essential in the canning of fish, such as cutting the fish, placing it in cans, labelling and packing the cans for shipment are in the exempt category\u201d ( Mitchell  v.  Stinson,  217 F. 2d 210)."], ["29:29:3.1.1.2.44.2.427.6", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.105 The 1961 amendments.", "DOL-WHD", "", "", "", "(a) The statement of the Managers on the Part of the House in the conference report on the Fair Labor Standards Amendments of 1961 (H. Rept. No. 327, 87th Cong., first session, p. 16) refers to the fact that the changes made in sections 13(a)(5) and 13(b)(4) originated in the Senate amendment to the House bill and were not in the bill as passed by the House. In describing the Senate provision which was retained in the final legislation, the Managers stated that it \u201cchanges the exemption in the act for\u201d the operations transferred to section 13(b)(4) from section 13(a)(5) \u201cfrom a minimum wage and overtime exemption to an overtime only exemption.\u201d They further stated: \u201cThe present complete exemption is retained for employees employed in catching, propagating, taking, harvesting, cultivating, or farming fish and certain other marine products, or in the first processing, canning, or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by such an employee.\u201d In the report of the Senate committee on the provision included in the Senate bill (S. Rept. No. 145, 87th Cong., first session, p. 33), the committee stated: \u201cThe bill would modify the minimum wage and overtime exemption in section 13(a)(5) of the Act for employees engaged in fishing and in specified activities on aquatic products.\u201d In further explanation, the report states that the bill would amend this section \u201cto remove from this exemption those so-called on-shore activities and leave the exemption applicable to \u2018offshore\u2019 activities connected with the procurement of the aquatic products, including first processing, canning, or packing at sea performed as an incident to fishing operations, as well as employment in loading and unloading such products for shipment when performed by any employee engaged in these procurement operations.\u201d It is further stated in the report that \u201cpersons who are employed in the activities removed from the section 13(a)(5) exemption will have minimum wage protection but will continue to be exempt from the Act's overtime requirements under an amended section 13(b)(4). The bill will thus have the effect of placing fish processing and fish canning on the same basis under the Act. There is no logical reason for treating them differently and their inclusion within the Act's protection is desirable and consistent with its objectives.\u201d\n\n(b) The language of the Managers on the Part of the House in the conference report and of the Senate committee in its report, as quoted above, is consistent with the position supported by the earlier legislative history and by the courts, that the exemption of an employee under these provisions of the Act depends on what he does. The Senate report speaks of the exemption \u201cfor employees engaged in fishing and in specified activities\u201d and of the \u201cactivities now enumerated in this section.\u201d While this language confirms the legislative intent to continue to provide exemptions for employees employed in specified activities rather than to grant exemption on an industry, employer, or establishment basis (see  Mitchell  v.  Trade Winds, Inc.,  289 F. 2d 278), the report also refers with apparent approval to certain prior judicial interpretations indicating that the list of activities set out in the exemption provisions is intended to be \u201ca complete catalog of the activities involved in the fishery industry\u201d and that an employee to be exempt, need not engage directly in the physical acts of catching, processing, canning, etc. of aquatic products which are included in the operation specifically named in the statute ( McComb  v.  Consolidated Fisheries Co.,  174 F. 2d 74). It was stated that an interpretation of section 13(a)(5) and section 13(b)(4) which would include within their purview \u201cany employee who participates in activities which are necessary to the conduct of the operations specifically described in the exemptions\u201d is \u201cconsistent with the congressional purpose\u201d of the 1961 amendments. (See Sen. Rep. No. 145, 87 Cong., first session, p. 33; Statement of Representative Roosevelt, 107 Cong. Rec. (daily ed.) p. 6716, as corrected May 4, 1961.) From this legislative history the intent is apparent that the application of these exemptions under the Act as amended in 1961 is to be determined by the practical and functional relationship of the employee's work to the performance of the operations specifically named in section 13(a)(5) and section 13(b)(4)."], ["29:29:3.1.1.2.44.2.428.10", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.109 Manufacture of supplies for named operations is not exempt.", "DOL-WHD", "", "", "", "Employment in the manufacture of supplies for the named operations is not employment in the named operations on aquatic forms of life. Thus, the exemption is not applicable to the manufacture of boxes, barrels, or ice by a seafood processor for packing or shipping its seafood products or for use of the ice in its fishing vessels. These operations, when performed by an independent manufacturer, would likewise not be exempt ( Dize  v.  Maddix,  144 F. 284 (C.A. 4), affirmed 324 U.S. 667, and approved on this point in  Farmers' Reservoir Co.  v.  McComb,  337 U.S. 755)."], ["29:29:3.1.1.2.44.2.428.11", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.110 Performing operations both on nonaquatic products and named aquatic products.", "DOL-WHD", "", "", "", "By their terms, sections 13(a)(5) and 13(b)(4) provide no exemption with respect to operations performed on any products other than the aquatic products named in these subsections (see \u00a7 784.107). Accordingly, neither of the exemptions is applicable to the making of any commodities from ingredients only part of which consist of such aquatic products, if a substantial amount of other products is contained in the commodity so produced (compare  Walling  v.  Bridgeman-Russell Co.,  6 Labor Cases 61, 422, 2 WH Cases 785 (D. Minn.) and  Miller  v.  Litchfield Creamery Co.,  11 Labor Cases 63, 274, 5 WH Cases 1039 (N.D. Ind.), with  Mitchell  v.  Trade Winds, Inc.,  289 F. 2d 278). Thus, the first processing, canning, or processing of codfish cakes, clam chowder, dog food, crab cakes, or livestock food containing aquatic products is often not exempt within the meaning of the relevant exemptions."], ["29:29:3.1.1.2.44.2.428.12", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.111 Operations on named products with substantial amounts of other ingredients are not exempt.", "DOL-WHD", "", "", "", "To exempt employees employed in first processing, canning, or processing products composed of the named commodities and a substantial amount of ingredients not named in the exemptions would be contrary to the language and purposes of such exemptions which specifically enumerate the commodities on which exempt operations were intended to be performed. Consequently, in such situations all operations performed on the mixed products at and from the time of the addition of the foreign ingredients, including those activities which are an integral part of first processing, canning, or processing are nonexempt activities. However, activities performed in connection with such operations on the named aquatic products prior to the addition of the foreign ingredients are deemed exempt operations under the applicable exemption. Where the commodity produced from named aquatic products contains an insubstantial amount of products not named in the exemption, the operations will be considered as performed on the aquatic products and handling and preparation of the foreign ingredients for use in the exempt operations will also be considered as exempt activities."], ["29:29:3.1.1.2.44.2.428.13", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.112 Substantial amounts of nonaquatic products; enforcement policy.", "DOL-WHD", "", "", "", "As an enforcement policy in applying the principles stated in \u00a7\u00a7 784.110 and 784.111, if more than 20 percent of a commodity consists of products other than aquatic products named in section 13(a)(5) or 13(b)(4), the commodity will be deemed to contain a substantial amount of such nonaquatic products."], ["29:29:3.1.1.2.44.2.428.14", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.113 Work related to named operations performed in off- or dead-season.", "DOL-WHD", "", "", "", "Generally, during the dead or inactive season when operations named in section 13(a)(5) or 13(b)(4) are not being performed on the specified aquatic forms of life, employees performing work relating to the plant or equipment which is used in such operations during the active seasons are not exempt. Illustrative of such employees are those who repair, overhaul, or recondition fishing equipment or processing or canning equipment and machinery during the off-season periods when fishing, processing, or canning is not going on. An exemption provided for employees employed \u201cin\u201d specified operations is plainly not intended to apply to employees employed in other activities during periods when the specified operations are not being carried on, where their work is functionally remote from the actual conduct of the operations for which exemption is provided and is unaffected by the natural factors which the Congress relied on as reason for exemption. The courts have recognized these principles. See  Maneja  v.  Waialua,  349 U.S. 254;  Mitchell  v.  Stinson,  217 F. 2d 210;  Maisonet  v.  Central Coloso,  6 Labor Cases (CCH) par. 61,337, 2 WH Cases 753 (D. P.R.);  Abram  v.  San Joaquin Cotton Oil Co.,  49 F. Supp. 393 (S.D. Calif.), and  Heaburg  v.  Independent Oil Mill Inc.,  46 F. Supp. 751 (W.D. Tenn.). On the other hand, there may be situations where employees performing certain preseason or postseason activities immediately prior or subsequent to carrying on operations named in sections 13(a)(5) or section 13(b)(4) are properly to be considered as employed \u201cin\u201d the named operations because their work is so close in point of time and function to the conduct of the named operations that the employment is, as a practical matter, necessarily and directly a part of carrying on the operation for which exemption was intended. Depending on the facts and circumstances, this may be true, for example, of employees who perform such work as placing boats and other equipment in condition for use at the beginning of the fishing season, and taking the necessary protective measures with respect to such equipment which are required in connection with termination of the named operations at the end of the season. Where such work is integrated with and is required for the actual conduct of the named operations on the specified aquatic forms of life, and is necessarily performed immediately before or immediately after such named operations, the employees performing it may be considered as employed in the named operations, so as to come within the exemption. It should be kept in mind that the relationship between the work of an employee and the named operations which is required for exemption is not necessarily identical with the relationship between such work and the production of goods for commerce which is sufficient to establish its general coverage under the Act. Thus, repair, overhaul, and reconditioning work during the inactive season which does not come within the exemption is nevertheless closely related and directly essential to the production of goods for commerce which takes place during the active season and, therefore, is subject to the provisions of the Act ( Farmers' Reservoir Co.  v.  McComb,  337 U.S. 755;  Mitchell  v.  Stinson,  217 F. 2d 210;  Bowie  v.  Gonzalez,  117 F. 2d 11;  Weaver  v.  Pittsburgh Steamship Co.,  153 F. 2d 597, cert., den., 328 U.S. 858)."], ["29:29:3.1.1.2.44.2.428.15", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.114 Application of exemptions on a workweek basis.", "DOL-WHD", "", "", "", "The general rule that the unit of time to be used in determining the application of the exemption to an employee is the workweek (see  Overnight Motor Transportation Co.  v.  Missel,  316 U.S. 572;  Mitchell  v.  Stinson,  217 F. 2d 210;  Mitchell  v.  Hunt.  263 F. 2d 913;  Puerto Rico Tobacco Marketing Co-op. Ass'n.  v.  McComb,  181 F. 2d 697). Thus, the workweek is the unit of time to be taken as the standard in determining the applicability to an employee of section 13(a)(5) or section 13(b)(4) ( Mitchell  v.  Stinson,  supra). An employee's workweek is a fixed and regularly recurring period of 168 hours\u2014seven consecutive 24-hour periods. It may begin at an hour of any day set by the employer and need not coincide with the calendar week. Once the workweek has been set it commences each succeeding week on the same day and at the same hour. Changing the workweek for the purpose of escaping the requirements of the Act is not permitted. If in any workweek an employee does only exempt work he is exempt from the wage and hours 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 one workweek and not the next (see  Mitchell  v.  Stinson,  supra). But the burden of effecting segregation between exempt and nonexempt work as between particular workweeks is on the employer (see  Tobin  v.  Blue Channel Corp.,  198 F. 2d 245)."], ["29:29:3.1.1.2.44.2.428.16", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.115 Exempt and noncovered work performed during the workweek.", "DOL-WHD", "", "", "", "The wage and hours requirements of the Act do not apply to any employees during any workweek in which a portion of his activities falls within section 13(a)(5) if no part of the remainder of his activities is covered by the Act. Similarly, the overtime requirements are inapplicable in any workweek in which a portion of an employee's activities falls within section 13(b)(4) if no part of the remainder of his activities is covered by the Act. Covered activities for purposes of the above statements mean engagement in commerce, or in the production of goods for commerce, or in an occupation closely related or directly essential to such production or employment in an enterprise engaged in commerce or in the production of goods for commerce, as explained in \u00a7\u00a7 784.17 through 784.19."], ["29:29:3.1.1.2.44.2.428.17", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.116 Exempt and nonexempt work in the same workweek.", "DOL-WHD", "", "", "", "Where an employee, during any workweek, performs work that is exempt under section 13(a)(5) or 13(b)(4), and also performs nonexempt work, some part of which is covered by the Act, the exemption will be deemed inapplicable unless the time spent in performing nonexempt work during that week is not substantial in amount. For enforcement purposes, nonexempt work will be considered substantial in amount if more than 20 percent of the time worked by the employee in a given workweek is devoted to such work (see  Mitchell  v.  Stinson,  217 F. 2d 210). Where exempt and nonexempt work is performed during a workweek by an employee and is not or cannot be segregated so as to permit separate measurement of the time spent in each, the employee will not be exempt (see  Tobin  v.  Blue Channel Corp.,  198 F. 2d 245;  Walling  v.  Public Quick Freezing and Cold Storage Co.,  62 F. Supp. 924)."], ["29:29:3.1.1.2.44.2.428.18", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.117 Combinations of exempt work.", "DOL-WHD", "", "", "", "The combination of exempt work under sections 13(a)(5) and 13(b)(4), or one of these sections with exempt work under another section of the Act, is permitted. Where a part of an employee's covered work in a workweek is exempt under section 13(a)(5) and the remainder is exempt under another section which grants an exemption from the minimum wage and overtime provisions of the Act, the wage and hours requirements are not applicable. If the scope of the exemption is not the same, however, the exemption applicable to the employee is that provided by whichever exemption provision is more limited in scope unless, of course, the time spent in performing work which is nonexempt under the broader exemption is not substantial. For example, an employee may devote part of his workweek to work within section 13(b)(4) and the remainder to work exempt from both the minimum wage and overtime requirements under another section of the Act. In such a case he must receive the minimum wage but is not required to receive time and one-half for his overtime work during that week (C.F.  Mitchell  v.  Myrtle Grove Packing Co.,  350 U.S. 891;  Tobin  v.  Blue Channel Corp.,  198 F. 2d 245). 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. Unless the employee meets all the requirements of each exemption a combination exemption would not be available."], ["29:29:3.1.1.2.44.2.428.7", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.106 Relationship of employee's work to the named operations.", "DOL-WHD", "", "", "", "It is clear from the language of section 13(a)(5) and section 13(b)(4) of the Act, and from their legislative history as discussed in \u00a7\u00a7 784.102-784.105, that the exemptions which they provide are applicable only to those employees who are \u201cemployed in\u201d the named operations. Under the Act as amended in 1961 and in accordance with the evident legislative intent (see \u00a7 784.105), an employee will be considered to be \u201cemployed in\u201d an operation named in section 13(a)(5) or 13(b)(4) where his work is an essential and integrated step in performing such named operation (see  Mitchell  v.  Myrtle Grove Packing Co.,  350 U.S. 891, approving  Tobin  v.  Blue Channel Corp.,  198 F. 2d 245;  Mitchell  v.  Stinson,  217 F. 2d 210), or where the employee is engaged in activities which are functionally so related to a named operation under the particular facts and circumstances that they are necessary to the conduct of such operation and his employment is, as a practical matter, necessarily and directly a part of carrying on the operation for which exemption was intended ( Mitchell  v.  Trade Winds, Inc.,  289 F. 2d 278; see also  Waller  v.  Humphreys,  133 F. 2d 193 and  McComb  v.  Consolidated Fisheries Co.,  174 F. 2d 74). Under these principles, generally an employee performing functions without which the named operations could not go on is, as a practical matter, \u201cemployed in\u201d such operations. It is also possible for an employee to come within the exemption provided by section 13(a)(5) or section 13(b)(4) even though he does not directly participate in the physical acts which are performed on the enumerated marine products in carrying on the operations which are named in that section of the Act. However, it is not enough to establish the applicability of such an exemption that an employee is hired by an employer who is engaged in one or more of the named operations or that the employee is employed by an establishment or in an industry in which operations enumerated in section 13(a)(5) or section 13(b)(4) are performed. The relationship between what he does and the performance of the named operations must be examined to determine whether an application of the above-stated principles to all the facts and circumstances will justify the conclusion that he is \u201cemployed in\u201d such operations within the intendment of the exemption provision."], ["29:29:3.1.1.2.44.2.428.8", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.107 Relationship of employee's work to operations on the specified aquatic products.", "DOL-WHD", "", "", "", "It is also necessary to the application of the exemptions that the operation of which the employee's work is a part be performed on the marine products named in the Act. Thus the operations described in section 13(a)(5) must be performed with respect to \u201cany kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life.\u201d The operations enumerated in section 13(b)(4) must be performed with respect to \u201cany kind of fish, shellfish, or other aquatic forms of animal or vegetable life, or any byproduct thereof\u201d. Work performed on products which do not fall within these descriptions is not within the exemptions ( Fleming  v.  Hawkeye Pearl Button Co.,  113 F. 2d 52;  Mitchell  v.  Trade Winds, Inc.,  289 F. 2d 278;  Walling  v.  Haden,  153 F. 2d 196)."], ["29:29:3.1.1.2.44.2.428.9", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.108 Operations not included in named operations on forms of aquatic \u201clife.\u201d", "DOL-WHD", "", "", "", "Since the subject matter of the exemptions is concerned with \u201caquatic forms of animal and vegetable life,\u201d the courts have held that the manufacture of buttons from clam shells or the dredging of shells to be made into lime and cement are not exempt operations because the shells are not living things ( Fleming  v.  Hawkeye Pearl Button Co.,  113 F. 2d 52;  Walling  v.  Haden,  153 F. 2d 196, certiorari denied 328 U.S. 866). Similarly, the production of such items as crushed shell and grit, shell lime, pearl buttons, knife handles, novelties, liquid glue, isinglass, pearl essence, and fortified or refined fish oil is not within these exemptions."], ["29:29:3.1.1.2.44.2.429.19", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.118 The exemption is intended for work affected by natural factors.", "DOL-WHD", "", "", "", "As indicated by the legislative history, the purpose of the section 13(a)(5) exemption is to exempt from the minimum wage and overtime provisions of the Act employment in those activities in the fishing industry that are controlled or materially affected by natural factors or elements, such as the vicissitudes of the weather, the changeable conditions of the water, the run of the catch, and the perishability of the products obtained (83 Cong. Rec. 7408, 7443; S. Rep. No. 145, p. 33 on H.R. 3935, 87th Cong., first session;  Fleming  v.  Hawkeye Pearl Button Co.,  113 F. 2d 52;  Walling  v.  Haden,  153 F. 2d 196, certiorari denied 328 U.S. 866)."], ["29:29:3.1.1.2.44.2.429.20", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.119 Effect of natural factors on named operations.", "DOL-WHD", "", "", "", "The various activities enumerated in section 13(a)(5)\u2014the catching, taking, propagating, harvesting, cultivating, or farming of aquatic forms of animal or vegetable life as well as \u201cthe going to and returning from work\u201d are materially controlled and affected by the natural elements. Similarly, the activities of \u201cfirst processing, canning, or packing of such marine products at sea as an incident to, or in conjunction with, such fishing operations\u201d are subject to the natural factors mentioned above. The \u201cloading and unloading\u201d of such aquatic products when performed at sea are also subject to the natural forces."], ["29:29:3.1.1.2.44.2.429.21", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.120 Application of exemption to \u201coffshore\u201d activities in general.", "DOL-WHD", "", "", "", "The expression \u201coffshore activities\u201d is used to describe the category of named operations pertaining to the acquisition from nature of aquatic forms of animal and vegetable life. As originally enacted in 1938, section 13(a)(5) exempted not only employees employed in such \u201coffshore\u201d or \u201ctrip\u201d activities but also employees employed in related activities on shore which were similarly affected by the natural factors previously discussed (see \u00a7 784.103, and  Fleming  v.  Hawkeye Pearl Button Co.,  113 F. 2d 52). However, the intent of the 1961 amendments to the Act was to remove from the exemption the so-called onshore activities and \u201cleave the exemption applicable to \u2018offshore\u2019 activities connected with the procurement of the aquatic products\u201d (S. Rep. 145, 87th Cong., first session, p. 33). Despite its comprehensive reach (see \u00a7\u00a7 784.105 and 784.106), the exemption, like the similar exemption is the Act for agriculture, is \u201cmeant to apply only\u201d to the activities named in the statute (see  Maneja  v.  Waialua,  349 U.S. 254;  Farmers Reservoir Co.  v.  McComb,  337 U.S. 755)."], ["29:29:3.1.1.2.44.2.429.22", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.121 Exempt fisheries operations.", "DOL-WHD", "", "", "", "Employees engaged in the named operations, such at \u201ccatching\u201d or \u201ctaking,\u201d are clearly exempt. As indicated in \u00a7 784.106, employees engaged in activities that are \u201cdirectly and necessarily a part of\u201d an enumerated operation are also exempt ( Mitchell  v.  Trade Winds, Inc.,  289 F. 2d 278). The \u201ccatching, taking, propagating, harvesting, cultivating, or farming\u201d of the various forms of aquatic life includes not only the actual performance of the activities, but also the usual duties inherent in the occupations of those who perform the activities. Thus, the fisherman who is engaged in \u201ccatching\u201d and \u201ctaking\u201d must see to it that his lines, nets, seines, traps, and other equipment are not fouled and are in working order. He may also have to mend or replace his lines or nets or repair or construct his traps. Such activities are an integral part of the operations of \u201ccatching\u201d and \u201ctaking\u201d of an aquatic product."], ["29:29:3.1.1.2.44.2.429.23", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.122 Operations performed as an integrated part of fishing.", "DOL-WHD", "", "", "", "Certain other activities performed on a fishing vessel in connection with named operations are, functionally and as a practical matter, directly and necessarily a part of such operations. For example, maintenance work performed by members of the fishing crew during the course of the trip on the fishing boat would necessarily be a part of the fishing operation, since the boat itself is as much a fishing instrument as the fishing rods or nets. Similarly, work required on the vessel to keep in good operating condition any equipment used for processing, canning, or packing the named aquatic products at sea is so necessary to the conduct of such operations that it must be considered a part of them and exempt."], ["29:29:3.1.1.2.44.2.429.24", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.123 Operations performed on fishing equipment.", "DOL-WHD", "", "", "", "On the principle stated in \u00a7 784.122 the replacement, repair, mending, or construction of the fisherman's equipment performed at the place of the fishing operation would be exempt. Such activities performed in contemplation of the trip are also within the exemption if the work is so closely related both in point of time and function to the acquisition of the aquatic life that it is really a part of the fishing operation or of \u201cgoing to * * * work.\u201d For example, under appropriate facts, the repair of the nets, or of the vessel, or the building of fish trap frames on the shore immediately prior to the opening of the fishing season would be within the exemption. Activities at the termination of a fishing trip which are similarly related in time and function to the actual conduct of fishing operations or \u201creturning from work\u201d may be within the exemption on like principles. Similarly, the fact that the exemption is intended generally for \u201coffshore\u201d activities does not mean that it may not apply to employment in other activities performed on shore which are so integrated with the conduct of actual fishing operations and functionally so necessary thereto that the employment is, in practical effect, directly and necessarily a part of the fishing operations for which the exemption is intended. In such circumstances the exemption will apply, for example, to an employee employed by a vessel owner to watch the fishing vessel, its equipment, and the catch when it comes to port, checks the mooring lines, operate bilge pumps and heating and cooling systems on the vessel, and assist in the loading and unloading of the fishing equipment and the catch. Work of the kinds referred to may be exempt when performed by the fisherman himself or necessary to the conduct of the fishing organization. However, the exemption would not apply to employees of a manufacturer of supplies or to employees of independent shops which repair boats and equipment. ( Dize  v.  Maddix,  144 F. 2d 584, affirmed 324 U.S. 697.)"], ["29:29:3.1.1.2.44.2.429.25", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.124 Going to and returning from work.", "DOL-WHD", "", "", "", "The phrase \u201cincluding the going to and returning from work\u201d relates to the preceding named operations which pertain to the procuring and appropriation of seafood and other forms of aquatic life from nature. The expression obviously includes the time spent by fishermen and others who go to and from the fishing grounds or other locations where the aquatic life is reduced to possession. If going to work requires fishermen to prepare and carry the equipment required for the fishing operation, this would be included within the exemption. In performing such travel the fishermen may be required to row, guide or sail the boat or otherwise assist in its operation. Similarly, if an employee were digging for clams or other shellfish or gathering seaweed on the sand or rocks it might be necessary to drive a truck or other vehicle to reach his destination. Such activities are exempt within the meaning of this language. However, the phrase does not apply to employees who are not employed in the activities involved in the acquisition of aquatic animal or vegetable life, such as those going to or returning from work at processing or refrigerator plants or wholesale establishments."], ["29:29:3.1.1.2.44.2.429.26", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.125 Loading and unloading.", "DOL-WHD", "", "", "", "The term \u201cloading and unloading\u201d applies to activities connected with the removal of aquatic products from the fishing vessel and their initial movement to markets or processing plants. The term, however, is not without limitation. The statute by its clear language makes these activities exempt only when performed by any employee employed in the procurement activities enumerated in section 13(a)(5). This limitation is confirmed by the legislative history of the 1961 amendments which effectuated this change in the application of this term (S. Rep. 145, 87th Cong., first session, p. 33). Consequently, members of the fishing crew engaged in loading and unloading the catch of the vessel to another vessel at sea, or at the dockside would be engaging in exempt activities within the meaning of section 13(a)(5). On the other hand, dock workers performing the same kind of tasks would not be within the exemption."], ["29:29:3.1.1.2.44.2.429.27", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.126 Operation of the fishing vessel.", "DOL-WHD", "", "", "", "In extending the minimum wage to seamen on American vessels by limiting the exemption from minimum wages and overtime provided by section 13(a)(12) of the Act to \u201cany employee employed as a seaman on a vessel other than an American vessel\u201d, and at the same time extending the minimum wage to \u201conshore\u201d but not \u201coffshore\u201d operations concerned with aquatic products, the Congress, in the 1961 amendments to the Act, did not indicate any intent to remove the crews of fishing vessels engaged in operations named in section 13(a)(5) from the exemption provided by that section. The exemption provided by section 13(a)(12), above noted, and the general exemption in section 13(b)(6) from overtime for \u201cany employee employed as a seaman\u201d (whether or not on an American vessel) apply, in general to employees, working aboard vessels, whose services are rendered primarily as an aid to navigation. It appears, however, that it is not the custom or practice in the fishing industry for a fishing vessel to have two crews; namely, a fishing crew whose duty it is primarily to fish and to perform other duties incidental thereto and a navigational crew whose duty it is primarily to operate the boat. Where, as is the typical situation, there is but one crew which performs all these functions, the section 13(a)(5) exemptions would apply to its members. For a further explanation of the seaman's exemption, see part 783 of this chapter."], ["29:29:3.1.1.2.44.2.429.28", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.127 Office and clerical employees under section 13(a)(5).", "DOL-WHD", "", "", "", "Office and clerical employees, such as bookkeepers, stenographers, typists, and others who perform general office work of a firm engaged in operating fishing boats are not for that reason within the section 13(a)(5) exemption. Under the principles stated in \u00a7 784.106, their general office activities are not a part of any of the named operations even when they are selling, taking, and putting up orders, on recording sales, taking cash or making telephone connections for customer or dealer calls. Employment in the specific activities enumerated in the preceding sentence would ordinarily, however, be exempt under section 13(b)(4) since such activities constitute \u201cmarketing\u201d or \u201cdistributing\u201d within the meaning of that exemption (see \u00a7 784.153). In certain circumstances, office or clerical employees may come within the section 13(a)(5) exemption. If, for example, it is necessary to the conduct of the fishing operations that such employees accompany a fishing expedition to the fishing grounds to perform certain work required there in connection with the catch, their employment under such circumstances may, as a practical matter, be directly and necessarily a part of the operations for which exemption was intended, in which event the exemption would apply to them."], ["29:29:3.1.1.2.44.2.430.29", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.128 Requirements for exemption of first processing, etc., at sea.", "DOL-WHD", "", "", "", "A complete exemption from minimum and overtime wages is provided by section 13(a)(5) for employees employed in the operations of first processing, canning, or packing of marine products at sea as an incident to, or in conjunction with \u201csuch\u201d fishing operations\u2014that is, the fishing operations of the fishing vessel (S. Rep. 145, 87th Cong., first session, p. 33). To qualify under this part of the exemption, there must be a showing that: (a) The work of the employees is such that they are, within the meaning of the Act, employed in one or more of the named operations of first processing, canning or packing, (b) such operations are performed as an incident to, or in conjunction with, fishing operations of the vessel, (c) such operations are performed at sea, and (d) such operations are performed on the marine product specified in the statute."], ["29:29:3.1.1.2.44.2.430.30", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.129 \u201cMarine products\u201d.", "DOL-WHD", "", "", "", "The marine products which form the basis of the exemption are the \u201cfish, shellfish, crustaceas, sponges, seaweeds, or other aquatic forms of animal and vegetable life\u201d mentioned in section 13(a)(5). The exemption contemplates aquatic products currently or recently acquired and in the form obtained from the sea, since the language of the exemption clearly indicates the named operations of first processing, canning, or packing must be performed \u201cat sea\u201d and \u201cas an incident to or in conjunction with\u201d, fishing operations. Also, such \u201cmarine products\u201d are limited to aquatic forms of \u201clife.\u201d"], ["29:29:3.1.1.2.44.2.430.31", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.130 \u201cAt sea.\u201d", "DOL-WHD", "", "", "", "The \u201cat sea\u201d requirement must be construed in context and in such manner as to accomplish the statutory objective. The section 13(a)(5) exemption is for the \u201ccatching, taking, propagating, harvesting,\u201d etc., of \u201caquatic forms of animal and vegetable life.\u201d There is no limitation as to where these activities must take place other than, as the legislative history indicates, that they are \u201coffshore\u201d activities. Since the purpose of the 1961 amendments is to exempt the \u201cfirst processing, canning, or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations,\u201d it would frustrate this objective to give the phrase \u201cat sea\u201d a technical or special meaning. For example, to define \u201cat sea\u201d to include only bodies of water subject to the ebb and flow of the tides or to saline waters would exclude the Great Lakes which obviously would not comport with the legislative intent. On the other hand, one performing the named activities of first processing, canning, or packing within the limits of a port or harbor is not performing them \u201cat sea\u201d within the meaning of the legislative intent although the situs of performance is subject to tidewaters. In any event it would not appear necessary to draw a precise line as to what constitutes \u201cat sea\u201d operations, for, as a practical matter, such first processing, canning, or packing operations are those closely connected with the physical catching of the fish and are performed on the fishing vessel shortly or immediately following the \u201ccatching\u201d and \u201ctaking\u201d of the fish."], ["29:29:3.1.1.2.44.2.430.32", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.131 \u201cAs an incident to, or in conjunction with\u201d, fishing operations.", "DOL-WHD", "", "", "", "The statutory language makes clear that the \u201cfirst processing, canning, or packing,\u201d unlike the other named operations of \u201ccatching, taking, propagating, harvesting, cultivating, or farming\u201d are not exempt operations in and of themselves. They are exempt only when performed \u201cas an incident to, or in conjunction with such fishing operations\u201d (see  Farmers Reservoir Co.  v.  McComb,  337 U.S. 755). It is apparent from the context that the language \u201csuch fishing operations\u201d refers to the principal named operations of \u201ccatching, taking, propagating, harvesting, cultivating, or farming\u201d as performed by the fishermen or fishing vessel (compare  Bowie  v.  Gonzales,  117 F. 2d 11). Therefore to be \u201can incident to, or in conjunction with such fishing operations\u201d, the first processing, canning, or packing must take place upon the vessel that is engaged in the physical catching, taking, etc., of the fish. This is made abundantly clear by the legislative history. In Senate Report No. 145, 87th Congress, first session, at page 33, it pointed out:\n\nFor the same reasons, there was included in section 13(a)(5) as amended by the bill an exemption for the \u201cfirst processing, canning, or packing\u201d of marine products \u201cat sea as an incident to, or in conjunction with such fishing operations.\u201d The purpose of this additional provision is to make certain that the Act will be uniformly applicable to all employees on the fishing vessel including those employees on the vessel who may be engaged in these activities at sea as an incident to the fishing operations conducted by the vessel.\n\nFor the same reasons, there was included in section 13(a)(5) as amended by the bill an exemption for the \u201cfirst processing, canning, or packing\u201d of marine products \u201cat sea as an incident to, or in conjunction with such fishing operations.\u201d The purpose of this additional provision is to make certain that the Act will be uniformly applicable to all employees on the fishing vessel including those employees on the vessel who may be engaged in these activities at sea as an incident to the fishing operations conducted by the vessel.\n\nIn accordance with this purpose of the section, the exemption is available to an employee on a fishing vessel who is engaged in first processing fish caught by fishing employees of that same fishing vessel; it would not be available to such an employee if some or all of the fish being first processed were obtained from other fishing vessels, regardless of the relationship, financial or otherwise, between such vessels (cf.  Mitchell  v.  Hunt,  263 F. 2d 913;  Farmers Reservoir Co.  v.  McComb,  337 U.S. 755)."], ["29:29:3.1.1.2.44.2.430.33", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.132 The exempt operations.", "DOL-WHD", "", "", "", "The final requirement is that the employee on the fishing vessel must be employed in \u201cthe first processing, canning or packing\u201d of the marine products. The meaning and scope of these operations when performed at sea as an incident to the fishing operations of the vessel are set forth in \u00a7\u00a7 784.133 to 784.135. To be \u201cemployed in\u201d such operations the employee must, as previously explained (see \u00a7\u00a7 784.106 and 784.121), be engaged in work which is clearly part of the named activity."], ["29:29:3.1.1.2.44.2.430.34", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.133 \u201cFirst processing.\u201d", "DOL-WHD", "", "", "", "Processing connotes a change from the natural state of the marine product and first processing would constitute the first operation or series of continuous operations that effectuate this change. It appears that the first processing operations ordinarily performed on the fishing vessels at sea consist for the most part of eviscerating, removal of the gills, beheading certain fish that have large heads, and the removal of the scallop from its shell. Icing or freezing operations, which ordinarily immediately follow these operations, would also constitute an integral part of the first processing operations, as would such activities as filleting, cutting, scaling, or salting when performed as part of a continuous series of operations. Employment aboard the fishing vessel in freezing operations thus performed is within the exemption if the first processing of which it is a part otherwise meets the conditions of section 13(a)(5), notwithstanding the transfer by the 1961 amendments of \u201cfreezing\u201d, as such, from this exemption to the exemption from overtime only provided by section 13(b)(4). Such preliminary operations as cleaning, washing, and grading of the marine products, though not exempt as first processing since they effect no change, would be exempt as part of first processing when done in preparation for the first processing operation described above including freezing. The same would be true with respect to the removal of the waste products resulting from the above described operations on board the fishing vessel."], ["29:29:3.1.1.2.44.2.430.35", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.134 \u201cCanning.\u201d", "DOL-WHD", "", "", "", "The term \u201ccanning\u201d was defined in the legislative history of the 1949 amendments (House (Conference) Report No. 1453, 81st Cong., first session; 95 Cong. Rec. 14878, 14932-33). These amendments made the \u201ccanning\u201d of marine products or byproducts exempt from overtime only under a separate exemption (section 13(b)(4), and subject to the minimum wage requirements of the Act (see \u00a7 784.136  et seq. ). The same meaning will be accorded to \u201ccanning\u201d in section 13(a)(5) as in section 13(b)(4) (see \u00a7 784.142  et seq. ) subject, of course, to the limitations necessarily imposed by the context in which it is found. In other words, although certain operations as described in \u00a7 784.142  et seq.  qualify as canning, they are, nevertheless, not exempt under section 13(a)(5) unless they are performed on marine products by employees of the fishing vessel at sea as an incident to, or in conjunction with the fishing operations of the vessel."], ["29:29:3.1.1.2.44.2.430.36", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.135 \u201cPacking.\u201d", "DOL-WHD", "", "", "", "The packing of the various named marine products at sea as an incident to, or in conjunction with, the fishing operations of the vessel is an exempt operation. The term \u201cpacking\u201d refers to the placing of the named product in containers, such as boxes, crates, bags, and barrels. Activities such as washing, grading, sizing, and placing layers of crushed ice in the containers are deemed a part of packing when performed as an integral part of the packing operation. The packing operation may be a simple or complete and complex operation depending upon the nature of the marine product, the length of time out and the facilities aboard the vessel. Where the fishing trip is of short duration, the packing operation may amount to no more than the simple operation, of packing the product in chipped or crushed ice in wooden boxes, as in the case of shrimp, or placing the product in wooden boxes and covering with seaweed as in the case of lobsters. Where the trips are of long duration, as for several weeks or more, packing the operations on fishing vessels with the proper equipment sometimes are integrated with first processing operations so that together these operations amount to readying the product in a marketable form. For example, in the case of shrimp, the combined operations may consist of the following series of operations\u2014washing, grading, sizing, placing 5-pound boxes already labeled for direct marketing, placing in trays with other boxes, loading into a quick freezer locker, removing after freezing, emptying the box, glazing the contents with a spray of fresh water, replacing the box, putting them in 50-pound master cartons and finally stowing in refrigerated locker."], ["29:29:3.1.1.2.44.2.431.37", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.136 \u201cShore\u201d activities exempted under section 13(b)(4).", "DOL-WHD", "", "", "", "Section 13(b)(4) provides an exemption from the overtime but not from the minimum wage provisions of the Act for \u201cany employee employed in the canning, processing, marketing, freezing, curing, storing, packing for shipment, or distributing\u201d aquatic forms of animal and vegetable life or any byproducts thereof. Orginally, all these operations were contained in the exemption provided by section 13(a)(5) but, as a result of amendments, first \u201ccanning\u201d, in 1949, and then the other operations in 1961, were transferred to section 13(b)(4). (See the discussion in \u00a7\u00a7 784.102 to 784.105.) These activities are \u201cshore\u201d activities and in general have to do with the movement of the perishable aquatic products to a nonperishable state or to points of consumption (S. Rept. 145, 87th Cong., first session, p. 33)."], ["29:29:3.1.1.2.44.2.431.38", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.137 Relationship of exemption to exemption for \u201coffshore\u201d activities.", "DOL-WHD", "", "", "", "The reasons advanced for exemption of employment in \u201cshore\u201d operations, now listed in section 13(b)(4), at the time of the adoption of the original exemption in 1938, had to do with the difficulty of regulating hours of work of those whose operations, like those of fishermen, were stated to be governed by the time, size, availability, and perishability of the catch, all of which were considered to be affected by natural factors that the employer could not control (see 83 Cong. Rec. 7408, 7422, 7443). The intended limited scope of the exemption in this respect was not changed by transfer of the \u201cshore\u201d activities from section 13(a)(5) to section 13(b)(4). The exemption of employment in these \u201cshore\u201d operations may be considered, therefore, as intended to implement and supplement the exemption for employment in \u201coffshore\u201d operations provided by section 13(a)(5), by exempting from the hours provisions of the Act employees employed in those \u201cshore\u201d activities which are necessarily somewhat affected by the same natural factors. These \u201cshore\u201d activities are affected primarily, however, by fluctuations in the supply of the product or by the necessity for consumption or preservation of such products before spoilage occurs (see  Fleming  v.  Hawkeye Pearl Button Co.,  113 F. 2d 52; cf.  McComb  v.  Consolidated Fisheries,  174 F. 2d 74)."], ["29:29:3.1.1.2.44.2.431.39", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.138 Perishable state of the aquatic product as affecting exemption.", "DOL-WHD", "", "", "", "(a) Activities performed after conversion of an aquatic product to a nonperishable state cannot form the basis for application of the section 13(b)(4) exemption unless the subsequent operation is so integrated with the performance of exempt operations on the aquatic forms of animal and vegetable life mentioned in the section that functionally and as a practical matter it must be considered a part of the operations for which exemption was intended. The exemption is, consequently, not available for the handling or shipping of nonperishable products by an employer except where done as a part of named operations commenced on the product when it was in a perishable state. Thus, employees of dealers in or distributors of such nonperishable products as fish oil and fish meal, or canned seafood, are not within the exemption. Similarly, there is no basis for application of the exemption to employees employed in further processing of or manufacturing operations on products previously rendered nonperishable, such as refining fish oil or handling fish meal in connection with the manufacture of feeds. Further specific examples of application of the foregoing principle are given in the subsequent discussion of particular operations named in section 13(b)(4).\n\n(b) In applying the principle stated in paragraph (a) of this section, the Department has not asserted that the exemption is inapplicable to the performance of the operations described in section 13(b)(4) on frozen, smoked, salted, or cured fish. The Department will continue to follow this policy until further clarification from the courts."], ["29:29:3.1.1.2.44.2.431.40", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.139 Scope of exempt operations in general.", "DOL-WHD", "", "", "", "Exemption under section 13(b)(4), like exemption under section 13(a)(5), depends upon the employment in the actual activities named in the section, and an employee performing a function which is not necessary to the actual conduct of a named activity, as explained in \u00a7 784.106, is not within the exemption. It is also essential to exemption that the operations named in section 13(b)(4) be performed on the forms of aquatic life specified in the section and not on other commodities a substantial part of which consists of materials or products other than the named aquatic products. Application of these principles has been considered generally in the earlier discussion, and further applications will be noted in the following sections and in the subsequent discussion of particular operations mentioned in the section 13(b)(4) exemption."], ["29:29:3.1.1.2.44.2.431.41", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.140 Fabrication and handling of supplies for use in named operations.", "DOL-WHD", "", "", "", "(a) As noted in \u00a7 784.109, the exemption for employees employed \u201cin\u201d the named operations does not extend to an employee by reason of the fact that he engages in fabricating supplies for the named operations. Employment in connection with the furnishing of supplies for the processing or canning operations named in section 13(b)(4) is not exempt as employment \u201cin\u201d such named operations unless the functional relationship of the work to the actual conduct of the named operations is such that, as a practical matter, the employment is directly and necessarily a part of the operations for which exemption is intended. Employees who meet the daily needs of the canning or processing operations by delivering from stock, handling, and working on supplies such as salt, condiments, cleaning supplies, containers, etc., which must be provided as needed if the named operations are to continue, are within the exemption because such work is, in practical effect, a part of the operations for which exemption is intended. On the other hand, the receiving, unloading, and storing of such supplies during seasons when the named operations are not being carried on for subsequent use in the operations expected to be performed during the active season, are ordinarily too remote from the actual conduct of the named operations to come within the exemption (see \u00a7 784.113), and are not affected by the natural factors (\u00a7 784.137) which were considered by the Congress to constitute a fundamental reason for providing the exemption. Whether the receiving, unloading, and storing of supplies during periods when the named operations are being carried on are functionally so related to the actual conduct of the operations as to be, in practical effect, a part of the named operations and within the exemption, will depend on all the facts and circumstances of the particular situation and the manner in which the named operations are carried on. Normally where such activities are directed to building up stock for use at a relatively remote time and there is no direct integration with the actual conduct of the named operations, the exemption will not apply.\n\n(b) It may be that employees are engaged in the same workweek in performing exempt and nonexempt work. For example, a shop machinist engaged in making a new part to be used in the repair of a machine currently used in canning operations would be doing exempt work. If he also in the same workweeks makes parts to be used in a manufacturing plant operated by his employer, this work, since it does not directly or necessarily contribute to the conduct of the canning operations, would be nonexempt work causing the loss of the exemption if such work occupied a substantial amount (for enforcement purposes, more than 20 percent) of the employee's worktime in that workweek (see \u00a7 784.116 for a more detailed discussion)."], ["29:29:3.1.1.2.44.2.431.42", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.141 Examples of nonexempt employees.", "DOL-WHD", "", "", "", "An employer who engaged in operations specified in section 13(b)(4) which he performs on the marine products and byproducts described in that section may operate a business which engages also in operations of a different character or one in which some of the activities carried on are not functionally necessary to the conduct of operations named in section 13(b)(4). In such a business there will ordinarily be, in addition to the employees employed in such named operations, other employees who are nonexempt because their work is concerned entirely or in substantial part with carrying on activities which constitute neither the actual engagement in the named operations nor the performance of functions which are, as a practical matter, directly and necessarily a part of their employer's conduct of such named operations. Ordinarily, as indicated in \u00a7 784.156, such nonexempt employees will not be employed in an establishment which is exclusively devoted by the employer to the named operations during the period of their employment. It is usually when the named operations are not being carried on, or in places wholly or partly devoted to other operations, that employees of such an employer will be performing functions which are not so necessarily related to the conduct of the operations named in section 13(b)(4) as to come within the exemption. Typical illustrations of the occupations in which such nonexempt workers may be found (although employment in such an occupation does not necessarily mean that the worker is nonexempt) are the following: General office work (such as maintaining employment, social security, payroll and other records, handling general correspondence, etc., as distinguished from \u201cmarketing\u201d or \u201cdistributing\u201d work like that described in \u00a7 784.155), custodial, maintenance, watching, and guarding occupations; furnishing food, lodging, transportation, or nursing services to workers; and laboratory occupations such as those concerned with development of new products. Such workers are, of course, not physically engaged in operations named in section 13(b)(4) in the ordinary case, and they are not exempt unless they can be shown to be \u201cemployed in\u201d such operations on other grounds. But any of them may come within the exemption in a situation where the employer can show that the functions which they perform, in view of all the facts and circumstances under which the named operations are carried on, are actually so integrated with or essential to the conduct of the named operations as to be, in practical effect directly and necessarily a part of the operations for which exemption was intended. Thus, for example, if canning operations described in section 13(b)(4) are carried on in a location where the canning employees cannot obtain necessary food unless the canner provides it, his employment of culinary employees to provide such food is functionally so necessary to the conduct of the canning operations that their work is, as a practical matter, a part of such operations, and the exemption will apply to them. On like principle, the exemption may apply to a watchman whose services are required during performance of the named operations in order to guard against spontaneous combustion of the products of such operations and other occurrences which may jeopardize the conduct of the operations."], ["29:29:3.1.1.2.44.2.432.43", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.142 Meaning and scope of \u201ccanning\u201d as used in section 13(b)(4).", "DOL-WHD", "", "", "", "Section 13(b)(4) exempts any employee employed in the canning of aquatic forms of animal or vegetable life or byproducts thereof from the overtime requirements of the Act. As previously stated, it was made a limited exemption by the Fair Labor Standards Amendments of 1949. The legislative history of this section in specifically explaining what types of activities are included in the term \u201ccanning\u201d and the antecedents from which this section evolved make it clear that the exemption applies to those employees employed in the activities that Congress construed as being embraced in the term and not to all those engaged in the fish canning industry ( Mitchell  v.  Stinson,  217 F. 2d 214). Congress defined Report No. 1453, 81st Cong., first session 95 Cong. Rec. 14878, 14932-33) as follows:\n\nUnder the conference agreement \u201ccanning\u201d means hermetically sealing and sterilizing or pasteurizing and has reference to a process involving the performance of such operations. It also means other operations performed in connection therewith such as necessary preparatory operations performed on the products before they are placed in bottles, cans, or other containers to be hermetically sealed, as well as the actual placing of the commodities in such containers. Also included are subsequent operations such as the labeling of the cans or other cases or boxes whether such subsequent operations are performed as part of an uninterrupted or interrupted process. It does not include the placing of such products or byproducts thereof in cans or other containers that are not hermetically sealed as such an operation is \u201cprocessing\u201d as distinguished from \u201ccanning\u201d and comes within the complete exemption contained in section 13(a)(5).\n\nUnder the conference agreement \u201ccanning\u201d means hermetically sealing and sterilizing or pasteurizing and has reference to a process involving the performance of such operations. It also means other operations performed in connection therewith such as necessary preparatory operations performed on the products before they are placed in bottles, cans, or other containers to be hermetically sealed, as well as the actual placing of the commodities in such containers. Also included are subsequent operations such as the labeling of the cans or other cases or boxes whether such subsequent operations are performed as part of an uninterrupted or interrupted process. It does not include the placing of such products or byproducts thereof in cans or other containers that are not hermetically sealed as such an operation is \u201cprocessing\u201d as distinguished from \u201ccanning\u201d and comes within the complete exemption contained in section 13(a)(5).\n\nOf course, the processing other than canning, referred to in the last sentence quoted above, is now like canning, in section 13(a)(5)."], ["29:29:3.1.1.2.44.2.432.44", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.143 \u201cNecessary preparatory operations.\u201d", "DOL-WHD", "", "", "", "All necessary preparatory work performed on the named aquatic products as an integral part of a single uninterrupted canning process is subject to section 13(b)(4) (see  Tobin  v.  Blue Channel Corp.,  198 F. 2d 245, approved in  Mitchell  v.  Myrtle Grove Packing Co.,  350 U.S. 891). Such activities conducted as essential and integrated steps in the continuous and uninterrupted process of canning are clearly within the definition of \u201ccanning\u201d as contemplated by Congress and cannot be viewed in isolation from the canning process as a whole. Exempt preparatory operations include the necessary weighing, cleaning, picking, peeling, shucking, cutting, heating, cooling, steaming, mixing, cooking, carrying, conveying, and transferring to the containers the exempt aquatic products (see  Mitchell  v.  Stinson,  217 F. 2d 214). But the preparatory operations do not include operations specified in section 13(a)(5) pertaining to the acquisition of the exempt products from nature. Therefore, if a canner employs fishermen or others to catch, take, harvest, cultivate or farm aquatic animal and vegetable life, section 13(a)(5) and not section 13(b)(4) would apply to these particular operations."], ["29:29:3.1.1.2.44.2.432.45", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.144 Preliminary processing by the canner.", "DOL-WHD", "", "", "", "The mere fact that operations preparatory to canning are physically separated from the main canning operations of hermetically sealing and sterilizing or pasteurizing would not be sufficient to remove them from the scope of section 13(b)(4). Where preparatory operations such as the steaming or shucking of oysters are performed in an establishment owned, operated, or controlled by a canner of seafood as part of a process consisting of continuous series of operations in which such products are hermetically sealed in containers and sterilized or pasteurized, all employees who perform any part of such series of operations on any portion of such aquatic products for canning purposes are within the scope of the term \u201ccanning.\u201d"], ["29:29:3.1.1.2.44.2.432.46", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.145 Preliminary processing by another employer as part of \u201ccanning.\u201d", "DOL-WHD", "", "", "", "If the operations of separate processors are integrated in producing canned seafood products all employees of such processors who perform any part of the described continuous series of operations to accomplish this result would be \u201cemployed in the canning of\u201d such products. Moreover, preliminary operations performed in a separately owned processing establishment which are directed toward the particular requirements of a cannery pursuant to some definite arrangement between the operators of the two establishments would generally appear to be integrated with the cannery operations within the meaning of the above principles, so that the employees engaged in the preliminary operations in the separate establishment would be employed in \u201ccanning\u201d within the meaning of section 13(b)(4) of the Act. Whether or not integration exists in a specific case of this general nature will depend, of course, upon all the relevant facts and circumstances in such case."], ["29:29:3.1.1.2.44.2.432.47", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.146 \u201cSubsequent operations.\u201d", "DOL-WHD", "", "", "", "Canning, within the meaning of the exemption, includes operations performed after hermetic sealing of the cans or other containers, such as labeling of them and placing of them in cases or boxes, which are required to place the canned product in the form in which it will be sold or shipped by the canner. This is so whether or not such operations immediately follow the actual canning operations as a part of an uninterrupted process. Storing and shipping operations performed by the employees of the cannery in connection with its canned products, during weeks in which canning operations are going on, to make room for the canned products coming off the line or to make storage room, come within the exemption. The fact that such activities relate in part to products canned during the previous weeks or seasons would not affect the application of the exemption, provided canning operations such as hermetic sealing and sterilizing, or labeling, are currently being carried on."], ["29:29:3.1.1.2.44.2.432.48", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.147 Employees \u201cemployed in\u201d canning.", "DOL-WHD", "", "", "", "All employees whose activities are directly and necessarily a part of the canning of the specified aquatic forms of life are within the exemption provided by section 13(b)(4). Thus, employees engaged in handling the fish or seafood, placing it into the cans, providing steam for cooking it or operating the machinery that seals the cans or the equipment that sterilizes the canned product are engaged in exempt activities. In addition, can loft workers, those engaged in removing and carrying supplies from the stock room for current use in canning operations, and employees whose duty it is to re-form cans, when canning operations are going on, for current use, are engaged in exempt activities. Similarly, the repairing, oiling, or greasing during the active season of canning machinery or equipment currently used in the actual canning operations are exempt activities. The making of repairs in the production room such as to the floor around the canning machinery or equipment would also be deemed exempt activities where the repairs are essential to the continued canning operations or to prevent interruptions in the canning operations. These examples are illustrative but not exhaustive. Employees engaged in other activities which are similarly integrated with and necessary to the actual conduct of the canning operations will also come within the exemption. Employees whose work is not directly and necessarily a part of the canning operations are not exempt. See \u00a7\u00a7 784.106, 784.140, and 784.141."], ["29:29:3.1.1.2.44.2.433.49", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.148 General scope of processing, freezing, and curing activities.", "DOL-WHD", "", "", "", "Processing, freezing, and curing embrace a variety of operations that change the form of the \u201caquatic forms of animal and vegetable life.\u201d They include such operations as filleting, cutting, scaling, salting, smoking, drying, pickling, curing, freezing, extracting oil, manufacturing meal or fertilizer, drying seaweed preparatory to the manufacture of agar, drying and cleaning sponges ( Feming  v.  Hawkeye Pearl Button Co.,  113 F. 2d 52)."], ["29:29:3.1.1.2.44.2.433.50", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.149 Typical operations that may qualify for exemption.", "DOL-WHD", "", "", "", "Such operations as transporting the specified aquatic products to the processing plant; moving the products from place to place in the plant; cutting, trimming, eviscerating, peeling, shelling, and otherwise working on the products; packing the products; and moving the products from the production line to storage or to the shipping platform are typical of the operations in processing plants which are included in the exemption. Removal of waste, such as clam and oyster shells, operation of processing and packing machinery, and providing steam and brine for the processing operations (see  Mitchell  v.  Trade Winds Inc.,  289 F. 2d 278, explaining  Waller  v.  Humphreys,  133 F. 2d 193) are also included. As for the application of the exemption to office, maintenance, warehouse, and other employees, see the discussion in \u00a7 784.106  et seq.,  and \u00a7\u00a7 784.140 and 784.141."], ["29:29:3.1.1.2.44.2.433.51", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.150 Named operations performed on previously processed aquatic products.", "DOL-WHD", "", "", "", "It will be noted that section 13(b)(4) refers to employees employed in \u201cprocessing\u201d the named aquatic commodities and not just to \u201cfirst processing\u201d as does the provision in section 13(a)(5) for such processing at sea. Accordingly, if the aquatic products, though subjected to a processing operation, are still in a perishable state, the subsequent performance of any of the enumerated operations on the still perishable products will be within the exemption no matter who the employer performing the exempt operations may be. He may be the same employer who performed the prior processing or other exempt operation, another processor, or a wholesaler, as the case may be. As noted in \u00a7 784.138(b), the Department has not questioned the applicability of the foregoing rule where the operation is performed on frozen, salted, smoked, or cured fish."], ["29:29:3.1.1.2.44.2.433.52", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.151 Operations performed after product is rendered nonperishable.", "DOL-WHD", "", "", "", "As indicated in \u00a7 784.138, after the character of the aquatic products as taken from nature has been altered by the performance of the enumerated operations so as to render them nonperishable (e.g., drying and cleaning sponges) section 13(b)(4) provides no exemption for any subsequent operations on the preserved products, unless the subsequent operation is performed as an integrated part of the operations named in the exemption which are performed by an employer on aquatic commodities described in section 13(b)(4) after receiving them in the perishable state. In the case of an employer who is engaged in performing on perishable aquatic forms of life specified in section 13(b)(4) any operations named in that section which result in a nonperishable product, the employment of his employees in the storing, marketing, packing for shipment, or distributing of nonperishable products resulting from such operations performed by him (including products processed during previous weeks or seasons) will be considered to be an integrated part of his operations on the perishable aquatic forms of life during those workweeks when he is actively engaged in such operations. The employees employed by him in such work on the nonperishable products are, accordingly, within the exemption in such workweeks."], ["29:29:3.1.1.2.44.2.433.53", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.152 Operations performed on byproducts.", "DOL-WHD", "", "", "", "The principles stated in the two preceding sections would also be applicable where the specified operations are performed on perishable byproducts. Any operation performed on perishable fish scraps, an unsegregated portion of which is to be canned, would come within the canning (not the processing) part of the exemption. Fish-reduction operations performed on the inedible and still perishable portions of fish resulting from processing or canning operations, to produce fish oil or meal, would come within the processing part of the exemption. Subsequent operations on the oil to fortify it would not be exempt, however, since fish oil is nonperishable in the sense that it may be held for a substantial period of time without deterioration."], ["29:29:3.1.1.2.44.2.434.54", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.153 General scope of named operations.", "DOL-WHD", "", "", "", "The exemption from the overtime pay requirements provided by section 13(b)(4) of the Act extends to employees \u201cemployed in the * * * marketing * * * storing, packing for shipment, or distributing of any kind of\u201d perishable aquatic product named in the section. An employee's work must be functionally so related to the named activity as to be, in practical effect, a part of it, and the named activity must be performed with respect to the perishable aquatic commodities listed in section 13(b)(4), in order for the exemption to apply to him. The named activities include the operations customarily performed in the marketing, storing, packing for shipment, or distributing of perishable marine products. For example, an employee engaged in placing perishable marine products in boxes, cartons, crates, bags, barrels, etc., preparatory to shipment and placing the loaded containers on conveyances for delivery to customers would be employed in the \u201cpacking for shipment\u201d of such products. Salesmen taking orders for the perishable aquatic products named in the section would be employed in the \u201cmarketing\u201d of them. Employees of a refrigerated warehouse who perform only duties involved in placing such perishable marine products in the refrigerated space, removing them from it, and operating the refrigerating equipment, would be employed in \u201cstoring\u201d or \u201cdistributing\u201d such products, depending on the facts. On the other hand, employees of a public warehouse handling aquatic products which have been canned or otherwise rendered nonperishable, or handling perishable products which contain substantial amount of ingredients not named in section 13(b)(4), would not be within the exemption. Office, clerical, maintenance, and custodial employees are not exempt by reason of the fact that they are employed by employers engaged in marketing, storing, packing for shipment, or distributing seafood and other aquatic products. Such employees are exempt only when the facts of their employment establish that they are performing functions so necessary to the actual conduct of such operations by the employer that, as a practical matter, their employment is directly and necessarily a part of the operations intended to be exempted (see, for some examples, \u00a7 784.155)."], ["29:29:3.1.1.2.44.2.434.55", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.154 Relationship to other operations as affecting exemption.", "DOL-WHD", "", "", "", "Employment in marketing, storing, distributing, and packing for shipment of the aquatic commodities described in section 13(b)(4) is, as such, exempted from the overtime pay provisions of the Act. This means that the employees actually employed in such operations on the named commodities are within the exemption without regard to the intimacy or remoteness of the relationship between their work and processing operations also performed on the commodities, so long as any prior processing has not rendered the commodity nonperishable (as in the case of a canned product) and therefore removed it from the category of marine products referred to by section 13(b)(4). If the commodity has previously been rendered nonperishable, the marketing, storing, distributing, or packing for shipment of it by an employee can come within the exemption only if the activity is one performed by his employer as an integrated part of a series of the named operations which commenced with operations on the perishable marine products to which section 13(b)(4) refers. Some examples of this situation are given in \u00a7\u00a7 784.146 and 784.151."], ["29:29:3.1.1.2.44.2.434.56", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.155 Activities performed in wholesale establishments.", "DOL-WHD", "", "", "", "The section 13(b)(4) exemption for employment in \u201cmarketing * * * storing, or distributing\u201d the named aquatic products or byproducts, as applied to the wholesaling of fish and seafood, affords exemption to such activities as unloading the aquatic product at the establishment, icing or refrigerating the product and storing it, placing the product into boxes, and loading the boxes on trucks or other transportation facilities for shipment to retailers or other receivers. Transportation to and from the establishment is also included ( Johnson  v.  Johnson & Company, Inc.,  N.D. Ga., 47 F. Supp. 650). Office and clerical employees of a wholesaler who perform general office work such as posting to ledgers, sending bills and statements, preparing tax returns, and making up payrolls, are not exempt unless these activities can be shown to be functionally necessary, in the particular fact situation, to the actual conduct of the operations named in section 13(b)(4). Such activities as selling, taking, and putting up orders, recording sales, and taking cash are, however, included in employment in \u201cmarketing\u201d or \u201cdistributing\u201d within the exemption. Employees of a wholesaler engaged in the performance of any of the enumerated operations on fresh fish or fish products will be engaged in exempt work. However, any such operations which they perform on aquatic products which have been canned or otherwise rendered nonperishable are nonexempt in accordance with the principles stated in \u00a7\u00a7 784.138 and 784.154."], ["29:29:3.1.1.2.44.2.435.57", 29, "Labor", "V", "B", "784", "PART 784\u2014PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING AND OPERATIONS ON AQUATIC PRODUCTS", "B", "Subpart B\u2014Exemptions Provisions Relating to Fishing and Aquatic Products", "", "\u00a7 784.156 Establishments exclusively devoted to named operations.", "DOL-WHD", "", "", "", "As noted in \u00a7 784.106 and elsewhere in the previous discussion, the section 13(b)(4) exemption depends on employment of the employee in the operations named in that section and does not apply on an establishment basis. However, the fact that an establishment is exclusively devoted to operations specified in section 13(b)(4) is, in the absence of evidence to the contrary, an indication that the employees employed there are employed in the named operations either directly or through the performance of functions so necessary to conducting the operations that the employment should, in practical effect, be considered a part of the activity intended to be exempted. Where this is the case, it is consistent with the legislative intent to avoid segmentation and treat all employees of the establishment in the same manner (see Sen. Rep. No. 145, 87th Cong. first session, p. 33). Accordingly, where it can be demonstrated that an establishment is, during a particular workweek, devoted exclusively to the performance of the operations named in section 13(b)(4), on the forms of aquatic life there specified, any employee of the establishment who is employed there during such workweek will be considered to be employed in such operations and to come within the exemption if there are no other facts pertinent to his employment that require a particular examination of the functions which he performs in connection with the conduct of the named operations. If, however, there are any facts (for example, the employment of the same employee at the establishment or the engagement by other employees in like duties there during periods when none of the named operations are being carried on) which raise questions as to whether he is actually engaged in the exempt activities, it will be necessary to scrutinize what he is actually doing during the conduct of the operations named in section 13(b)(4) in order to determine the applicability of the exemption to him. This is necessary because an employee who would not otherwise be within the exemption such as a carpenter doing repair work during the dead season, does not become exempt as \u201cemployed in\u201d one of the named activities merely because the establishment begins canning or processing fish."]], "truncated": false, "filtered_table_rows_count": 98, "expanded_columns": [], "expandable_columns": [], "columns": ["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"], "primary_keys": ["section_id"], "units": {}, "query": {"sql": "select 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 from cfr_sections where \"part_number\" = :p0 order by section_id limit 101", "params": {"p0": "784"}}, "facet_results": {"title_number": {"name": "title_number", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=784", "results": [{"value": 29, "label": 29, "count": 79, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&title_number=29", "selected": false}, {"value": 10, "label": 10, "count": 13, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&title_number=10", "selected": false}, {"value": 15, "label": 15, "count": 6, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&title_number=15", "selected": false}], "truncated": false}, "agency": {"name": "agency", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=784", "results": [{"value": "DOL-WHD", "label": "DOL-WHD", "count": 79, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&agency=DOL-WHD", "selected": false}, {"value": "DOE", "label": "DOE", "count": 13, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&agency=DOE", "selected": false}, {"value": "BIS", "label": "BIS", "count": 6, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&agency=BIS", "selected": false}], "truncated": false}, "part_number": {"name": "part_number", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=784", "results": [{"value": "784", "label": "784", "count": 98, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json", "selected": true}], "truncated": false}}, "suggested_facets": [{"name": "title_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&_facet=title_name"}, {"name": "chapter", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&_facet=chapter"}, {"name": "subchapter", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&_facet=subchapter"}, {"name": "part_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&_facet=part_name"}, {"name": "subpart", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&_facet=subpart"}, {"name": "subpart_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=784&_facet=subpart_name"}], "next": null, "next_url": null, "private": false, "allow_execute_sql": true, "query_ms": 9.058804949745536, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}