(a) Section 13(b)(1) of the Fair Labor Standards Act provides an
exemption from the maximum hours and overtime requirements of section 7
of the act, but not from the minimum wage requirements of section 6. The
exemption is applicable to any employee with respect to whom the
Secretary of Transportation has power to establish qualifications and
maximum hours of service pursuant to the provisions of section 204 of
the Motor Carrier Act of 1935, (part II of the Interstate Commerce Act,
49 Stat. 546, as amended; 49 U.S.C. 304, as amended by Pub. L. 89-670,
section 8e which substituted ``Secretary of Transportation'' for
``Interstate Commerce Commission''--Oct. 15, 1966) except that the
exemption is not applicable to any employee with respect to whom the
Secretary of Transportation has power to establish qualifications and
maximum hours of service solely by virtue of section 204(a)(3a) of part
II of the Interstate Commerce Act. (Pub. L. 939, 84th Cong., second
sess., Aug. 3, 1956, secs. 2 and 3) The Fair Labor Standards Act confers
no authority on the Secretary of Labor or the Administrator to extend or
restrict the scope of this exemption. It is settled by decisions of the
U.S. Supreme Court that the applicability of the exemption to an
employee otherwise entitled to the benefits of the Fair Labor Standards
Act is determined exclusively by the existence of the power conferred
under section 204 of the Motor Carrier Act to establish qualifications
and maximum hours of service with respect to him. It is not material
whether such qualifications and maximum hours of service have actually
been established by the Secretary of Transportation; the controlling
consideration is whether the employee comes within his power to do so.
The exemption is not operative in the absence of such power, but an
employee with respect to whom the Secretary of Transportation has such
power is excluded, automatically, from the benefits of section 7 of the
Fair Labor Standards Act. (Southland Gasoline Co. v. Bayley, 319 U.S.
44; Boutell v. Walling, 327 U.S. 463; Levinson v. Spector Motor Service,
330 U.S. 649; Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695;
Morris v. McComb, 332 U.S. 422)
(b) Section 204 of the Motor Carrier Act, 1935, provides that it
shall be the duty of the Interstate Commerce Commission (now that of the
Secretary of Transportation (see Sec. 782.0(c))) to regulate common and
contract carriers by motor vehicle as provided in that act, and that
``to that end the Commission may establish reasonable requirements with
respect to * * * qualifications and maximum hours of service of
employees, and safety of operation and equipment.'' (Motor Carrier Act,
sec. 204(a)(1)(2), 49 U.S.C. 304(a)(1)(2)) Section 204 further provides
for the establishing of similar regulations with respect to private
carriers of property by motor vehicle, if need therefor is found. (Motor
Carrier Act, sec. 204(a)(3), 49 U.S.C. 304(a)(3))
(c) Other provisions of the Motor Carrier Act which have a bearing
on the scope of section 204 include those which define common and
contract carriers by motor vehicle, motor carriers, private carriers of
property by motor vehicle (Motor Carrier Act, sec. 203(a) (14), (15),
(16), (17), 49 U.S.C. sec. 303(a) (14), (15), (16), (17)) and motor
vehicle (Motor Carrier Act, sec. 203(a)(13));
those which confer regulatory powers with respect to the transportation
of passengers or property by motor carriers engaged in interstate or
foreign commerce (Motor Carrier Act, sec. 202(a)), as defined in the
Motor Carrier Act, sec. 203(a) (10), (11), and reserve to each State the
exclusive exercise of the power of regulation of intrastate commerce by
motor carriers on its highways (Motor Carrier Act, sec. 202(b)); and
those which expressly make section 204 applicable to certain
transportation in interstate or foreign commerce which is in other
respects excluded from regulation under the act. (Motor Carrier Act,
sec. 202(c))
