[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR780.117]

[Page 570-571]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 780_EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL 
 
                 Subpart B_General Scope of Agriculture
 
Sec. 780.117  ``Production, cultivation, growing.''

    (a) The words ``production, cultivation, growing'' describe actual 
raising operations which are normally intended or expected to produce 
specific agricultural or horticultural commodities. The raising of such 
commodities is included even though done for purely experimental 
purposes. The ``growing'' may take place in growing media other than 
soil as in the case of hydroponics. The words do not include operations 
undertaken or conducted for purposes

[[Page 571]]

not concerned with obtaining any specific agricultural or horticultural 
commodity. Thus operations which are merely preliminary, preparatory or 
incidental to the operations whereby such commodities are actually 
produced are not within the terms ``production, cultivation, growing''. 
For example, employees of a processor of vegetables who are engaged in 
buying vegetable plants and distributing them to farmers with whom their 
employer has acreage contracts are not engaged in the ``production, 
cultivation, growing'' of agricultural or horticultural commodities. The 
furnishing of mushroom spawn by a canner of mushrooms to growers who 
supply the canner with mushrooms grown from such spawn does not 
constitute the ``growing'' of mushrooms. Similarly, employees of the 
employer who is engaged in servicing insecticide sprayers in the 
farmer's orchard and employees engaged in such operations as the testing 
of soil or genetics research are not included within the terms. 
(However, see Sec. Sec. 780.128, et seq., for possible exemption on 
other grounds.) The word ``production,'' used in conjunction with 
``cultivation, growing, and harvesting,'' refers, in its natural and 
unstrained meaning, to what is derived and produced from the soil, such 
as any farm produce. Thus, ``production'' as used in section 3(f) does 
not refer to such operations as the grinding and processing of 
sugarcane, the milling of wheat into flour, or the making of cider from 
apples. These operations are clearly the processing of the agricultural 
commodities and not the production of them (Bowie v. Gonzalez, 117 F. 2d 
11).
    (b) The word ``production'' was added to the definition of 
``agriculture'' in order to take care of a special situation--the 
production of turpentine and gum rosins by a process involving the 
tapping of living trees. (See S. Rep. No. 230, 71st Cong., second sess. 
(1930); H.R. Rep. No. 2738, 75th Cong., third sess. p. 29 (1938).) To 
insure the inclusion of this process within the definition, the word 
``production'' was added to section 3(f) in conjunction with the words 
``including commodities defined as agricultural commodities in section 
15(g) of the Agricultural Marketing Act, as amended'' (Bowie v. 
Gonzalez, 117 F. 2d 11). It is clear, therefore, that ``production'' is 
not used in section 3(f) in the artificial and special sense in which it 
is defined in section 3(j). It does not exempt an employee merely 
because he is engaged in a closely related process or occupation 
directly essential to the production of agricultural or horticultural 
commodities. To so construe the term would render unnecessary the 
remainder of what Congress clearly intended to be a very elaborate and 
comprehensive definition of ``agriculture.'' The legislative history of 
this part of the definition was considered by the U.S. Supreme Court in 
reaching these conclusions in Farmers Reservoir Co. v. McComb, 337 U.S. 
755.