The statutory language makes clear that the “first processing, canning, or packing,”
unlike the other named operations of “catching, taking, propagating, harvesting, cultivating,
or farming” are not exempt operations in and of themselves. They are exempt only when performed “as an incident to, or in conjunction with such
fishing operations” (see Farmers Reservoir Co. v. McComb, 337 U.S. 755). It is apparent from the context that the language “such fishing operations” refers
to the principal named operations of “catching, taking, propagating, harvesting, cultivating,
or farming” as performed by the fishermen or fishing vessel (compare Bowie v. Gonzales, 117 F. 2d 11). Therefore to be “an incident to, or in conjunction with such fishing operations”,
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:
For the same reasons, there was included in section 13(a)(5) as amended by the bill an exemption for the “first processing, canning, or packing”
of marine products “at sea as an incident to, or in conjunction with such fishing
operations.” 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.
In 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).
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