By its terms, section 7(b)(3) provides a partial and contingent
exemption from the general overtime pay requirements of the Act
applicable to ``any employee * * * employed * * * by an * * * enterprise
* * * engaged in the wholesale or bulk distribution of petroleum product
* * *.'' Thus, engagement in the described distribution is an ``explicit
prerequisite to exemption'' (Arnold v. Kanowsky, 361 U.S. 388), as are
the other express conditions set forth in the section. A natural reading
of the statutory language suggests that the employee as well as the
enterprise must be so engaged in order for the exemption to apply (see
Porto Rico Light Co. v. Mor, 253 U.S. 345). To the extent that its
employees are engaged in the described distribution, the enterprise is
itself so engaged (see Kirshbaum v. Walling, 316 U.S. 517; and see
Sec. 794.104). Also, whenever an enterprise is so engaged, any of its
employees will be considered to be ``employed by an * * * enterprise * *
* engaged in the wholesale or bulk distribution of petroleum products''
if the duties of his employment require him to perform any operations or
provide any services in carrying on such activities of his employer, and
if the employee is not engaged in a substantial portion of his workweek
in other activities which do not provide a basis for exemption under
section 7(b)(3). Such an interpretation of the quoted language is
believed necessary to give effect to the intended scope of the exemption
as explained in Sec. 794.101. Where an enterprise is exclusively engaged
in the wholesale or bulk distribution of petroleum products and meets
all the other requirements of section 7(b)(3), all of its employees who
are paid for their hours of work in accordance with section 6 of the Act
and the special pay provisions of section 7(b)(3) (see Sec. 778.602 of
this chapter and Secs. 794.135 through 794.136) will be exempt from the
overtime pay requirements of the Act under the principles stated above.
What products are included in the term ``petroleum products'' and what
constitutes the ``bulk distribution'' of such products within the
meaning of section 7(b)(3) are discussed in Secs. 794.132 through
794.133.
