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§ 780.110 29 CFR Ch. V (7–1–02 Edition)

may involve a consideration of the and cream at receiving stations is not principles contained in § 780.104. For ex- included. Such operations as sepa- ample, fish farming activities fall with- rating cream from milk, bottling milk in the scope of the meaning of ‘‘farm- and cream, or making butter and ing in all its branches’’ and employers cheese may be considered as ‘‘dairy- engaged in such operations would be ing’’ under some circumstances, or employed in . On the other they may be considered practices under hand, so-called ‘‘bird dog’’ operations the ‘‘secondary’’ meaning of the defini- of the citrus fruit consisting tion when performed by a farmer or on of the purchase of fruit unsuitable for a farm, if they are not performed on packing and of the transportation and milk produced by other farmers or pro- sale of the fruit to canning do duced on other farms. (See the discus- not qualify as ‘‘farming’’ and, con- sions in §§ 780.128 et seq.) sequently, employees engaged in such operations are not employed in agri- AGRICULTURAL OR HORTICULTURAL culture. (See Chapman v. Durkin, 214 F. COMMODITIES 2d 360 cert. denied 348 U.S. 897; Fort Mason Fruit Co. v. Durkin, 214 F. 2d 363 § 780.112 General meaning of ‘‘agri- cert. denied, 348 U.S. 897.) However, em- culture or horticultural commod- ployees gathering the fruit at the ities.’’ groves are considered agricultural Section 3(f) of the Act defines as workers because they are engaged in ‘‘agriculture’’ the ‘‘production, cultiva- harvesting operations. (For exempt tion, growing, and harvesting’’ of ‘‘ag- transportation, see subpart J of this ricultural or horticultural commod- part.) ities,’’ and employees employed in such operations are engaged in agriculture. CULTIVATION AND TILLAGE OF THE In general, within the meaning of the Act, ‘‘agricultural or horticultural § 780.110 Operations included in ‘‘cul- tivation and tillage of the soil.’’ commodities’’ refers to commodities resulting from the application of agri- ‘‘Cultivation and tillage of the soil’’ cultural or horticultural techniques. includes all the operations necessary to Insofar as the term refers to products prepare a suitable seedbed, eliminate of the soil, it means commodities that weed growth, and improve the physical are planted and cultivated by man. condition of the soil. Thus, or Among such commodities are the fol- leveling land or removing rock or other lowing: Grains, forage crops, fruits, matter to prepare the ground for a vegetables, nuts, sugar crops, fiber proper seedbed or building terraces on crops, tobacco, and nursery products. farmland to check are in- Thus, employees engaged in growing cluded. The application of water, fer- wheat, corn, hay, onions, carrots, sugar tilizer, or limestone to farmland is also cane, seed, or any other agricultural or included. (See in this connection horticultural commodity are engaged §§ 780.128 et seq. Also see Farmers Res- in ‘‘agriculture.’’ In addition to such ervoir Co. v. McComb, 337 U.S. 755.) products of the soil, however, the term Other operations such as the commer- includes domesticated animals and cial production and distribution of fer- some of their products such as milk, tilizer are not included within the wool, eggs, and . The term does scope of agriculture. (McComb v. Super- not include commodities produced by A Works, 165 F. 2d 824; Farmers industrial techniques, by exploitation Co. v. McComb, 337 U.S. 755.) of mineral wealth or other natural re- DAIRYING sources, or by uncultivated natural growth. For example, peat humus or § 780.111 ‘‘Dairying’’ as a farming oper- peat is not an agricultural com- ation. modity. Wirtz v. Ti Ti Peat Humus Co., ‘‘Dairying’’ includes the work of car- 373 f(2d) 209 (C.A.4). ing for and milking cows or goats. It also includes putting the milk in con- § 780.113 Seeds, spawn, etc. tainers, cooling it, and storing it where Seeds and seedlings of agricultural done on the farm. The handling of milk and horticultural plants are considered

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VerDate Jul<17>2002 08:31 Jul 21, 2002 Jkt 197105 PO 00000 Frm 00550 Fmt 8010 Sfmt 8010 Y:\SGML\197105T.XXX pfrm17 PsN: 197105T Wage and Hour Division, Labor § 780.116

‘‘agricultural or horticultural com- § 780.116 Commodities included by ref- modities.’’ Thus, since and erence to the Agricultural Mar- beans are considered ‘‘agricultural or keting Act. horticultural commodities,’’ the spawn (a) Section 3(f) expressly provides of mushrooms and bean sprouts are that the term ‘‘agricultural or horti- also so considered and the production, cultural commodities’’ shall include cultivation, growing, and harvesting of the commodities defined as agricul- spawn or bean sprouts is tural commodities in section 15(g) of ‘‘agriculture’’ within the meaning of the Agricultural Marketing Act, as section 3(f). amended (12 U.S.C. 1141–1141j). Section 15(g) of that Act provides: ‘‘As used in § 780.114 Wild commodities. this act, the term ‘agricultural com- Employees engaged in the gathering modity’ includes, in addition to other or harvesting of wild commodities such agricultural commodities, crude gum as , wild rice, burls and laurel (oleoresin) from a living tree, and the plants, the trapping of wild animals, or following products as processed by the the appropriation of minerals and original producers of the crude gum other uncultivated products from the (oleoresin) from which derived: Gum soil are not employed in ‘‘the produc- spirits of , and gum , as tion, cultivation, growing, and har- defined in the Act, ap- vesting of agricultural or horticultural proved March 3, 1923’’ (7 U.S.C. 91–99). commodities.’’ However, the fact that As defined in the Naval Stores Act, plants or other commodities actually ‘‘ ‘gum spirits of turpentine’ means cultivated by men are of a species spirits of turpentine made from gum which ordinarily grows wild without (oleoresin) from a living tree’’ and being cultivated does not preclude ‘‘ ‘gum ’ means rosin remaining them from being classed as ‘‘agricul- after the distillation of gum spirits of tural or horticultural commodities.’’ turpentine.’’ The production of these Transplanted branches which were commodities is therefore within the from plants growing wild in the field or definition of ‘‘agriculture.’’ forest are included within the term. (b) Since the only oleoresin included Cultivated are also in- within section 15(g) of the Agricultural cluded. Marketing Act is that derived from a living tree, the production of oleoresin § 780.115 Forest products. from stumps or any sources other than Trees grown in forests and the lum- living trees is not within section 3(f). If ber derived therefrom are not ‘‘agri- turpentine or rosin is produced in any cultural or horticultural commod- manner other than the processing of ities.’’ Christmas trees, whether wild crude gum from living trees, as by or planted, are also not so considered. up pine stumps and grinding It follows that employment in the pro- them or by distilling the turpentine duction, cultivation, growing, and har- with steam from the oleoresin within vesting of such trees or timber prod- or extracted from the wood, the pro- ucts is not sufficient to bring an em- duction of the turpentine or rosin is ployee within section 3(f) unless the op- not included in section 3(f). eration is performed by a farmer or on (c) Similarly, the production of gum a farm as an incident to or in conjunc- turpentine or gum rosin is not included tion with his or its farming operations. when these are produced by anyone On the latter point, see §§ 780.160 other than the original producer of the through 780.164 which discuss the ques- crude gum from which they are de- tion of when or lumbering op- rived. Thus, if a producer of turpentine erations are incident to or in conjunc- or rosin from oleoresin from living tion with farming operations so as to trees makes such products not only constitute ‘‘agriculture.’’ For a discus- from oleoresin produced by him but sion of the exemption in section also from oleoresin delivered to him by 13(a)(13) of the Act for certain forestry others, he is not producing a product and logging operations in which not defined as an agricultural commodity more than eight employees are em- and employees engaged in his produc- ployed, see part 788 of this chapter. tion operations are not agricultural

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