[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: 29CFR784.113]

[Page 674-675]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 784_PROVISIONS OF THE FAIR LABOR STANDARDS ACT APPLICABLE TO FISHING 
AND OPERATIONS ON AQUATIC PRODUCTS--Table of Contents
 
Subpart B_Exemptions Provisions Relating to Fishing and Aquatic Products
 
Sec. 784.113  Work related to named operations performed in off- or 
dead-season.

    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 ``in'' 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 ``in'' 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,

[[Page 675]]

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).