LONG ISLAND CARE AT HOME, LTD., et al. v. COKE

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158 OCTOBER TERM, 2006
Syllabus
LONG ISLAND CARE AT HOME, LTD., et al. v. COKE
certiorari to the united states court of appeals for
the second circuit
No. 06–593. Argued April 16, 2007—Decided June 11, 2007
The Fair Labor Standards Amendments of 1974 exempted from the mini
mum wage and maximum hours rules of the Fair Labor Standards Act
of 1938 (FLSA) persons “employed in domestic service employment to
provide companionship services for individuals . . . unable to care for
themselves.” 29 U. S. C. § 213(a)(15). Under a Labor Department
(DOL) regulation labeled an “Interpretatio[n]” (hereinafter third-party
regulation), the exemption includes those “companionship” workers
“employed by an . . . agency other than the family or household using
their services.” 29 CFR § 552.109(a). However, the DOL’s “General
Regulations” also define the statutory term “domestic service employ
ment” as “services of a household nature performed by an employee
in or about a private home . . . of the person by whom he or she is
employed.” § 552.3 (emphasis added). Respondent, a “companionship
services” provider to the elderly and infirm, sued petitioners, her former
employer Long Island Care and its owner, seeking minimum and over
time wages they allegedly owed her. The parties assume the FLSA
requires the payments only if its “companionship services” exemption
does not apply to workers paid by third-party agencies such as Long
Island Care. The District Court dismissed the suit, finding the third
party regulation valid and controlling. The Second Circuit found the
regulation unenforceable and set the judgment aside.
Held: The third-party regulation is valid and binding. Pp. 165–176.
(a) An agency’s power to administer a congressionally created pro
gram necessarily requires the making of rules to fill any “ ‘gap’ ” left,
implicitly or explicitly, by Congress. Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 843. When an agency
fills such a gap reasonably, and in accordance with other applicable (e. g.,
procedural) requirements, that result is legally binding. Id., at 843–
844. On its face, the third-party regulation seems to fill a statutory
gap. Pp. 165–166.
(b) The regulation does not exceed the DOL’s delegated rulemaking
authority. The FLSA explicitly leaves gaps as to the scope and defini
tion of its “domestic service employment” and “companionship services”
terms, 29 U. S. C. § 213(a)(15), and empowers the DOL to fill these gaps
through regulations, 1974 Amendments, § 29(b). Whether to include

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workers paid by third parties is one of the details left to the DOL to
work out. Although the pre-1974 FLSA already covered some third
party-paid companionship workers, e. g., those employed by large pri
vate enterprises, it did not then cover others, e. g., those employed di
rectly by the aged person’s family or by many smaller private agencies.
Thus, whether, or how, the statutory definition should apply to such
workers raises a set of complex questions, e. g., should the FLSA cover
all of them, some of them, or none of them? How should the need for
a simple, uniform application of the exemption be weighed against the
fact that some (but not all) of the workers were previously covered?
Given the DOL’s expertise, satisfactory answers to the foregoing ques
tions may well turn upon its thorough knowledge of the area and ability
to consult at length with affected parties. It is therefore reasonable to
infer that Congress intended its broad grant of definitional authority to
the DOL to include the authority to answer such questions. Respond
ent’s reliance on the Social Security statute, whose text expressly an
swers a “third party” coverage question, and on conflicting statements
in the 1974 Amendments’ legislative history, is unavailing. Pp. 166–168.
(c) Although the literal language of the third-party regulation and the
“General Regulation,” § 552.3, conflicts as to whether third-party-paid
workers are included within the statutory exemption, several reasons
compel the Court to agree with the DOL’s position, set forth in an “Advi
sory Memorandum” explaining (and defending) the third-party regula
tion, that that regulation governs here. First, a decision that § 552.3
controls would create serious problems as to the coverage of particular
domestic service employees by the statutory exemption or by the FLSA
as a whole. Second, given that the third-party regulation’s sole pur
pose is to explain how the companionship services exemption applies
to persons employed by third-party entities, whereas § 552.3’s primary
purpose is to describe the kind of work that must be performed to qual
ify someone as a “domestic service” employee, the third-party regula
tion is the more specific with respect to the question at issue and there
fore governs, see, e. g., Morales v. Trans World Airlines, Inc., 504 U. S.
374, 384–385. Third, that the DOL may have interpreted the two regu
lations differently at different times in their history is not a ground for
disregarding the present interpretation, which the DOL reached after
proposing a different interpretation through notice-and-comment rule
making, making any unfair surprise unlikely, cf. Bowen v. Georgetown
Univ. Hospital, 488 U. S. 204, 212. Fourth, while the Advisory Memo
randum was issued only to DOL personnel and written in response to
this litigation, this Court has accepted such an interpretation where, as
here, an agency’s course of action indicates that its interpretation of its
own regulation reflects its considered views on the matter in question

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160 LONG ISLAND CARE AT HOME, LTD. v. COKE
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and there is no reason to suspect that its interpretation is merely a post
hoc rationalization. Pp. 168–171.
(d) Several factors compel the Court to reject respondent’s argument
that the third-party regulation is an “interpretation” not meant to fill a
statutory “gap,” but simply to describe the DOL’s view of what the
FLSA means, and thus is not entitled to Chevron deference, cf. United
States v. Mead Corp., 533 U. S. 218, 232. For one thing, the regulation
directly governs the conduct of members of the public, “ ‘affecting indi
vidual rights and obligations.’ ” Chrysler Corp. v. Brown, 441 U. S. 281,
302. When promulgating the regulation and when considering amend
ing it, the DOL has always employed full public notice-and-comment
procedures, which under the Administrative Procedure Act (APA) need
not be used when producing an “interpretive” rule, 5 U. S. C. § 553(b)(A).
And for the past 30 years, according to the Advisory Memorandum (and
not disputed by respondent), the DOL has treated the regulation as a
legally binding exercise of its rulemaking authority. For another thing,
the DOL may have placed the third-party regulation in Subpart B of
Part 552, entitled “Interpretations,” rather than in Subpart A, “General
Regulations,” because Subpart B contains matters of detail, interpret
ing and applying Subpart A’s more general definitions. Indeed, Sub
part B’s other regulations—involving, e. g., employer “credit[s]” against
minimum wages for provision of “food,” “lodging,” and “drycleaning”—
strongly indicate that such details, not a direct interpretation of the
statute’s language, are at issue. Finally, the Court assumes Congress
meant and expected courts to treat a regulation as within a delegation
of “gap-filling” authority where, as here, the rule sets forth important
individual rights and duties, the agency focuses fully and directly upon
the issue and uses full notice-and-comment procedures, and the resulting
rule falls within the statutory grant of authority and is reasonable.
Mead, supra, at 229–233. Pp. 171–174.
(e) The Court disagrees with respondent’s claim that the DOL’s 1974
notice-and-comment proceedings were legally “defective” because the
DOL’s notice and explanation were inadequate. Fair notice is the ob
ject of the APA requirement that a notice of proposed rulemaking con
tain “either the terms or substance of the proposed rule or a description
of the subjects and issues involved,” 5 U. S. C. § 553(b)(3). The Circuits
have generally interpreted this to mean that the final rule must be a
logical outgrowth of the rule proposed. Initially, the DOL’s proposed
regulation would have placed outside the § 213(a)(15) exemption (and
hence left subject to FLSA wage and hour rules) individuals employed
by the large enterprise third-party employers covered before 1974.
Since that was simply a proposal, however, its presence meant that the

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DOL was considering the matter and might later choose to keep the
proposal or to withdraw it. The DOL finally withdrew it, resulting
in a determination exempting all third-party-employed companionship
workers from the FLSA, and that possibility was reasonably foresee
able. There is also no significant legal problem with the DOL’s explana
tion that its final interpretation is more consistent with FLSA language.
No one seems to have objected to this explanation at the time, and it
still remains a reasonable, albeit brief, explanation. Pp. 174–176.
462 F. 3d 48, reversed and remanded.
Breyer, J., delivered the opinion for a unanimous Court.
H. Bartow Farr III argued the cause for petitioners.
With him on the briefs were Richard G. Taranto and Daniel
S. Alter.
David B. Salmons argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Clement, Deputy Solicitor General
Kneedler, Jonathan L. Snare, Steven J. Mandel, and Edward
D. Sieger.
Harold Craig Becker argued the cause for respondent.
With him on the brief was Michael Shen.*
Justice Breyer delivered the opinion of the Court.
A provision of the Fair Labor Standards Act exempts from
the statute’s minimum wage and maximum hours rules
*Briefs of amici curiae urging reversal were filed for the City of New
York et al. by Michael A. Cardozo, Stephen J. A. Acquario, Leonard J.
Koerner, and Susan Choi-Hausman; for the Continuing Care Leadership
Coaltion, Inc., et al. by Peter G. Bergmann, Kathy H. Chin, Aaron J.
Schindel, John Longstreth, Joel L. Hodes, and Ellen M. Bach; for the Na
tional Association for Home Care & Hospice, Inc., by William A. Dombi;
and for the National Private Duty Association by Trenten P. Bausch.
Briefs of amici curiae urging affirmance were filed for AARP et al. by
Stacy Canan, Bruce Vignery, and Michael Schuster; for the Alliance for
Retired Americans et al. by Jonathan P. Hiatt, James B. Coppess, Patrick
J. Szymanski, and Carol R. Golubock; for Law Professors et al. by James
Reif; and for the Urban Justice Center et al. by David T. Goldberg.

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162 LONG ISLAND CARE AT HOME, LTD. v. COKE
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“any employee employed in domestic service employ
ment to provide companionship services for individuals
who (because of age or infirmity) are unable to care for
themselves (as such terms are defined and delimited by
regulations of the Secretary [of Labor]).” 29 U. S. C.
§ 213(a)(15).
A Department of Labor regulation (labeled an “interpreta
tion”) says that this statutory exemption includes those
“companionship” workers who “are employed by an em
ployer or agency other than the family or household using
their services.” 29 CFR § 552.109(a) (2006). The question
before us is whether, in light of the statute’s text and history,
and a different (apparently conflicting) regulation, the De
partment’s regulation is valid and binding. See Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837, 843–844 (1984). We conclude that it is.
I
A
In 1974, Congress amended the Fair Labor Standards Act
of 1938 (FLSA or Act), 52 Stat. 1060, to include many “do
mestic service” employees not previously subject to its mini
mum wage and maximum hour requirements. See Fair
Labor Standards Amendments of 1974 (1974 Amendments),
§§ 7(b)(1), (2), 88 Stat. 62 (adding 29 U. S. C. § 206(f), which
provides for a minimum wage for domestic service em
ployees, and § 207(l), which extends overtime restrictions
to domestic service employees). When doing so, Congress
simultaneously created an exemption that excluded from
FLSA coverage certain subsets of employees “employed in
domestic service employment,” including babysitters “em
ployed on a casual basis” and the companionship workers de
scribed above. § 7(b)(3), 88 Stat. 62 (codified at 29 U. S. C.
§ 213(a)(15)).

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The Department of Labor (Department or DOL) then pro
mulgated a set of regulations that included two regulations
at issue here. The first, set forth in a subpart of the pro
posed regulations entitled “General Regulations,” defines
the statutory term “domestic service employment” as
“services of a household nature performed by an em
ployee in or about a private home . . . of the person
by whom he or she is employed . . . such as cooks, wait
ers, butlers, valets, maids, housekeepers, governesses,
nurses, janitors, laundresses, caretakers, handymen,
gardeners, footmen, grooms, and chauffeurs of automo
biles for family use [as well as] babysitters employed on
other than a casual basis.” 40 Fed. Reg. 7405 (1975)
(emphasis added) (codified at 29 CFR § 552.3).
The second, set forth in a later subsection entitled “Interpre
tations,” says that exempt companionship workers include
those
“who are employed by an employer or agency other than
the family or household using their services . . . [whether
or not] such an employee [is assigned] to more than one
household or family in the same workweek . . . .” 40
Fed. Reg. 7407 (codified at 29 CFR § 552.109(a)).
This latter regulation (which we shall call the “third-party
regulation”) has proved controversial in recent years. On
at least three separate occasions during the past 15 years,
the Department considered changing the regulation and nar
rowing the exemption in order to bring within the scope of
the FLSA’s wage and hour coverage companionship workers
paid by third parties (other than family members of persons
receiving the services, who under the proposals were to re
main exempt). 58 Fed. Reg. 69310–69312 (1993); 60 Fed.
Reg. 46798 (1995); 66 Fed. Reg. 5481, 5485 (2001). But the

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Department ultimately decided not to make any change. 67
Fed. Reg. 16668 (2002).
B
In April 2002, Evelyn Coke (respondent), a domestic
worker who provides “companionship services” to elderly
and infirm men and women, brought this lawsuit against her
former employer, Long Island Care at Home, Ltd., and its
owner, Maryann Osborne (petitioners). App. 1, 19; 267
F. Supp. 2d 332, 333–334 (EDNY 2003). She alleged that
petitioners failed to pay her the minimum wages and over
time wages to which she was entitled under the FLSA and
a New York statute, and she sought a judgment for those
unpaid wages. App. 21–22. All parties assume for present
purposes that the FLSA entitles Coke to the payments if,
but only if, the statutory exemption for “companionship serv
ices” does not apply to companionship workers paid by
third-party agencies such as Long Island Care. The Dis
trict Court found the Department’s third-party regulation
valid and controlling, and it consequently dismissed Coke’s
lawsuit. 267 F. Supp. 2d, at 341.
On appeal, the Second Circuit found the Department’s
third-party regulation “unenforceable” and set aside the Dis
trict Court’s judgment. 376 F. 3d 118, 133, 135 (2004).
Long Island Care and Osborne sought certiorari. At the
Solicitor General’s suggestion, we vacated the Second Cir
cuit’s decision and remanded the case so that the Circuit
could consider a recent DOL “Advisory Memorandum” ex
plaining (and defending) the regulation. 546 U. S. 1147
(2006); App. E to Pet. for Cert. 50a (Wage and Hour Advisory
Memorandum No. 2005–1 (Dec. 1, 2005) (hereinafter Advi
sory Memorandum)). The Advisory Memorandum failed to
convince the Second Circuit, which again held the regulation
unenforceable. 462 F. 3d 48, 50–52 (2006) (per curiam).
Long Island Care and Osborne again sought certiorari. And
this time, we granted their petition and set the case for
argument.

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II
We have previously pointed out that the “ ‘power of an
administrative agency to administer a congressionally cre
ated . . . program necessarily requires the formulation of pol
icy and the making of rules to fill any gap left, implicitly or
explicitly, by Congress.’ ” Chevron, 467 U. S., at 843 (quot
ing Morton v. Ruiz, 415 U. S. 199, 231 (1974); omission in
original). When an agency fills such a “gap” reasonably, and
in accordance with other applicable (e. g., procedural) re
quirements, the courts accept the result as legally binding.
467 U. S., at 843–844; United States v. Mead Corp., 533 U. S.
218, 227 (2001).
In this case, the FLSA explicitly leaves gaps, for example,
as to the scope and definition of statutory terms such as “do
mestic service employment” and “companionship services.”
29 U. S. C. § 213(a)(15). It provides the Department with
the power to fill these gaps through rules and regulations.
Ibid.; 1974 Amendments, § 29(b), 88 Stat. 76 (authorizing the
Secretary of Labor “to prescribe necessary rules, regula
tions, and orders with regard to the amendments made by
this Act”). The subject matter of the regulation in question
concerns a matter in respect to which the agency is expert,
and it concerns an interstitial matter, i. e., a portion of a
broader definition, the details of which, as we said, Congress
entrusted the agency to work out.
The Department focused fully upon the matter in question.
It gave notice, it proposed regulations, it received public
comment, and it issued final regulations in light of that com
ment. 39 Fed. Reg. 35383 (1974); 40 Fed. Reg. 7404. See
Mead, supra, at 230. The resulting regulation says that em
ployees who provide “companionship services” fall within the
terms of the statutory exemption irrespective of who pays
them. Since on its face the regulation seems to fill a statu
tory gap, one might ask what precisely is it about the regula
tion that might make it unreasonable or otherwise unlawful?

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Respondent argues, and the Second Circuit concluded, that
a thorough examination of the regulation’s content, its
method of promulgation, and its context reveals serious legal
problems—problems that led the Second Circuit to conclude
that the regulation was unenforceable. In particular, re
spondent claims that the regulation falls outside the scope
of Congress’ delegation; that it is inconsistent with another,
legally governing regulation; that it is an “interpretive” reg
ulation not warranting judicial deference; and that it was
improperly promulgated. We shall examine each of these
claims in turn.
A
Respondent refers to the statute’s language exempting
from FLSA coverage those “employed in domestic service
employment to provide companionship services for individu
als who (because of age or infirmity) are unable to care for
themselves.” 29 U. S. C. § 213(a)(15). She claims that the
words “domestic service employment” limit the provision’s
scope to those workers employed by persons who themselves
receive the services (or are part of that person’s household)
and exclude those who are employed by “third parties.”
And she advances several arguments in favor of this position.
Respondent points to the overall purpose of the 1974
Amendments, namely to extend FLSA coverage, see, e. g.,
H. R. Rep. No. 93–232, pp. 2, 8 (1973); she notes that prior to
the amendments the FLSA already covered companionship
workers employed by certain third parties (e. g., private
agencies that were large enough, in terms of annual sales, to
qualify for the FLSA’s “enterprise coverage” provisions, 29
U. S. C. §§ 206(a), 207(a)(1) (1970 ed.), see §§ 203(r), (s)(1) (de
fining “enterprise” and “enterprise engaged in commerce or
the production of goods for commerce”)); and she concludes
that Congress must therefore have meant its “domestic serv
ice employment” language in the exemption to apply only to
persons not employed by third parties such as Long Island
Care. Respondent tries to bolster this argument by point

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ing to statements made by some Members of Congress dur
ing floor debates over the 1974 Amendments. See, e. g., 119
Cong. Rec. 24801 (1973) (statement of Sen. Burdick) (“I am
not concerned about the professional domestic who does this
as a daily living,” but rather about “people who might have
an aged father, an aged mother, an infirm father, an infirm
mother, and a neighbor comes in and sits with them”). And
she also points to a different statute, the Social Security stat
ute, which defines “domestic service employment” as do
mestic work performed in “a private home of the employer.”
26 U. S. C. § 3510(c)(1) (2000 ed.) (emphasis added; internal
quotation marks omitted).
We do not find these arguments convincing. The stat
utory language refers broadly to “domestic service em
ployment” and to “companionship services.” It expressly
instructs the agency to work out the details of those broad
definitions. And whether to include workers paid by third
parties within the scope of the definitions is one of those
details.
Although the FLSA in 1974 already covered some of the
third-party-paid workers, it did not at that point cover oth
ers. It did not cover, for example, companionship workers
employed directly by the aged person’s family; nor did it
cover workers employed by many smaller private agencies.
The result is that whether, or how, the definition should
apply to workers paid by third parties raises a set of complex
questions. Should the FLSA cover all companionship
workers paid by third parties? Or should the FLSA cover
some such companionship workers, perhaps those working
for some (say, large but not small) private agencies, or those
hired by a son or daughter to help an aged or infirm mother
living in a distant city? Should it cover none? How should
one weigh the need for a simple, uniform application of the
exemption against the fact that some (but not all) third
party employees were previously covered? Satisfactory an
swers to such questions may well turn upon the kind of thor

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ough knowledge of the subject matter and ability to consult
at length with affected parties that an agency, such as the
DOL, possesses. And it is consequently reasonable to infer
(and we do infer) that Congress intended its broad grant of
definitional authority to the Department to include the au
thority to answer these kinds of questions.
Because respondent refers to the Social Security statute
and the legislative history, we add that unlike the text of
the Social Security statute, the text of the FLSA does
not expressly answer the third-party-employment question.
Compare 26 U. S. C. § 3510(c)(1) with 29 U. S. C. § 213(a)(15).
Nor can one find any clear answer in the statute’s legislative
history. Compare 119 Cong. Rec. 24801 (statement of Sen.
Burdick, quoted above) with, e. g., id., at 24798 (statement of
Sen. Johnston) (expressing concern that requiring payment
of minimum wage to companionship workers might make
such services so expensive that some people would be forced
to leave the work force in order to take care of aged or in
firm parents).
B
Respondent says that the third-party regulation conflicts
with the Department’s “General Regulation” that defines the
statutory term “domestic service employment.” Title 29
CFR § 552.3 says that the term covers services “of a house
hold nature performed by . . . employee[s]” ranging from
“maids” to “cooks” to “housekeepers” to “caretakers” and
others, “in or about a private home . . . of the person by
whom he or she is employed.” (Emphasis added.) See also
§ 552.101(a). A companionship worker employed by a third
party to work at the home of an aged or infirm man or
woman is not working at the “home . . . of the person by
whom he or she is employed” (i. e., she is not working at the
home of the third-party employer). Hence, the two regula
tions are inconsistent, for the one limits the definition of “do
mestic service employee” for purposes of the 29 U. S. C.
§ 213(a)(15) exemption to workers employed by the house

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hold, but the other includes in the subclass of exempt com
panionship workers persons who are not employed by the
household. Respondent adds that, given the conflict, the
former “General Regulation” must govern (primarily be
cause, in her view, only the former regulation is entitled to
Chevron deference, an issue we address in Part II–C, infra).
Respondent is correct when she says that the literal lan
guage of the two regulations conflicts as to whether workers
paid by third parties are included within the statutory ex
emption. The question remains, however, which regulation
governs in light of this conflict. The Department, in its Ad
visory Memorandum, suggests that the third-party regula
tion governs, and we agree, for several reasons.
First, if we were to decide the contrary, i. e., that the text
of the General Regulation, 29 CFR § 552.3, controls on the
issue of third-party employment, our interpretation would
create serious problems. Although § 552.3 states that it is
supplying a definition of “domestic service employment” only
“[a]s [that term is] used” in the statutory exemption, 29
U. S. C. § 213(a)(15), the rule appears in other ways to have
been meant to supply a definition of “domestic service em
ployment” for the FLSA as a whole (a prospect the Depart
ment endorses in its Advisory Memorandum). Why else
would the Department have included the extensive list of
qualifying professions, virtually none of which have anything
to do with the subjects of § 213(a)(15), babysitting and com
panionship services? But if we were to apply § 552.3’s lit
eral definition of “domestic service employment” (including
the “home . . . of the [employer]” language) across the FLSA,
that would place outside the scope of FLSA’s wage and hour
rules any butlers, chauffeurs, and so forth who are employed
by any third party. That result seems clearly contrary to
Congress’ intent in enacting the 1974 Amendments, particu
larly if it would withdraw from FLSA coverage all domestic
service employees previously covered by the “enterprise
coverage” provisions of the Act.

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If, on the other hand, § 552.3’s definition of “domestic serv
ice employment” were limited to the statute’s exemption pro
vision, applying this definition literally (by removing all
third-party employees from the exemption) would extend
the Act’s coverage not simply to third-party-employed com
panionship workers paid by large institutions, but also to
those paid directly by a family member of an elderly or in
firm person receiving such services whenever the family
member lived in a different household than the invalid.
Nothing in the statute suggests that Congress intended to
make the exemption contingent on whether a family member
chose to reside in the same household as the invalid, and it
is a result that respondent herself seems to wish to avoid.
See Brief for Respondent 34, n. 31.
Second, normally the specific governs the general. E. g.,
Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384–385
(1992); Simpson v. United States, 435 U. S. 6, 15 (1978). The
sole purpose of the third-party regulation, § 552.109(a), is to
explain how the companionship services exemption applies
to persons employed by third-party entities, whereas the pri
mary (if not sole) purpose of the conflicting general defini
tional regulation, § 552.3, is to describe the kind of work that
must be performed by someone to qualify as a “domestic
service” employee. Given that context, § 552.109(a) is the
more specific regulation with respect to the third-party
employment question.
Third, we concede that the Department may have inter
preted these regulations differently at different times in
their history. See, e. g., 58 Fed. Reg. 69311 (employees of a
third-party employer qualify for the exemption only if they
are also jointly employed “by the family or household using
their services”); D. Sweeney, DOL Opinion Letter, Home
Health Aides/Companionship Exemption, 6A LRR, Wages
and Hours Manual 99:8205 (Jan. 6, 1999) (similar). But as
long as interpretive changes create no unfair surprise—and
the Department’s recourse to notice-and-comment rule

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making in an attempt to codify its new interpretation, see 58
Fed. Reg. 69311, makes any such surprise unlikely here—the
change in interpretation alone presents no separate ground
for disregarding the Department’s present interpretation.
Cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212
(1988).
Fourth, we must also concede, as respondent points out,
that the Department set forth its most recent interpretation
of these regulations in an “Advisory Memorandum” issued
only to internal Department personnel and which the De
partment appears to have written in response to this litiga
tion. We have “no reason,” however, “to suspect that [this]
interpretation” is merely a “ ‘post hoc rationalizatio[n]’ ” of
past agency action, or that it “does not reflect the agency’s
fair and considered judgment on the matter in question.”
Auer v. Robbins, 519 U. S. 452, 462 (1997) (quoting Bowen,
supra). Where, as here, an agency’s course of action indi
cates that the interpretation of its own regulation reflects its
considered views—the Department has clearly struggled
with the third-party-employment question since at least
1993—we have accepted that interpretation as the agency’s
own, even if the agency set those views forth in a legal brief.
See 519 U. S., at 462.
For all these reasons, we conclude that the Department’s
interpretation of the two regulations falls well within the
principle that an agency’s interpretation of its own regula
tions is “controlling” unless “ ‘ “plainly erroneous or incon
sistent with” ’ ” the regulations being interpreted. Id., at
461 (quoting Robertson v. Methow Valley Citizens Council,
490 U. S. 332, 359 (1989), in turn quoting Bowles v. Seminole
Rock & Sand Co., 325 U. S. 410, 414 (1945)). See also Udall
v. Tallman, 380 U. S. 1, 16–17 (1965).
C
Respondent also argues that, even if the third-party reg
ulation is within the scope of the statute’s delegation, is

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perfectly reasonable, and otherwise complies with the law,
courts still should not treat the regulation as legally binding.
Her reason is a special one. She says that the regulation is
an “interpretive” regulation, a kind of regulation that may
be used, not to fill a statutory “gap,” but simply to describe
an agency’s view of what a statute means. That kind of reg
ulation may “persuade” a reviewing court, Skidmore v.
Swift & Co., 323 U. S. 134, 140 (1944), but will not necessarily
“bind” a reviewing court. Cf. Mead, 533 U. S., at 232 (“in
terpretive rules . . . enjoy no Chevron status as a class”
(emphasis added)).
Like respondent, the Court of Appeals concluded that the
third-party regulation did not fill a statutory gap and hence
was not legally binding. 376 F. 3d, at 131–133; 462 F. 3d,
at 50–51. It based its conclusion upon three considerations:
First, when the Department promulgated a series of regula
tions to implement the § 213(a)(15) exemptions, 29 CFR pt.
552, it placed the third-party regulation in Subpart B, enti
tled “Interpretations,” not in Subpart A, entitled “General
Regulations.” Second, the Department said that regula
tions 552.3, .4, .5, and .6, all in Subpart A, contained the
“definitions” that the statute “require[s].” Third, the De
partment initially said in 1974 that Subpart A would “defin[e]
and delimi[t] . . . the ter[m] ‘domestic service employee,’ ”
while Subpart B would “se[t] forth . . . a statement of general
policy and interpretation concerning the application of the
[FLSA] to domestic service employees.” 376 F. 3d, at 131–
132; 462 F. 3d, at 50–51 (quoting 39 Fed. Reg. 35382).
These reasons do not convince us that the Department in
tended its third-party regulation to carry no special legal
weight. For one thing, other considerations strongly sug
gest the contrary, namely that the Department intended the
third-party regulation as a binding application of its rule
making authority. The regulation directly governs the con
duct of members of the public, “ ‘affecting individual rights
and obligations.’ ” Chrysler Corp. v. Brown, 441 U. S. 281,

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302 (1979) (quoting Morton, 415 U. S., at 232). When pro
mulgating the rule, the agency used full public notice-and
comment procedures, which under the Administrative Proce
dure Act an agency need not use when producing an
“interpretive” rule. 5 U. S. C. § 553(b)(A) (exempting “in
terpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice” from notice
and-comment procedures). Each time the Department has
considered amending the rule, it has similarly used full
notice-and-comment rulemaking procedures. 58 Fed. Reg.
69310 (1993); 60 Fed. Reg. 46797 (1995); 66 Fed. Reg. 5485
(2001). And for the past 30 years, according to the Depart
ment’s Advisory Memorandum (and not disputed by respond
ent), the Department has treated the third-party regulation
like the others, i. e., as a legally binding exercise of its rule
making authority. App. E to Pet. for Cert. 63a–64a.
For another thing, the Subpart B heading “Interpreta
tions” (and the other indicia upon which the Court of Appeals
relied) could well refer to the fact that Subpart B contains
matters of detail, interpreting and applying the more general
definitions of Subpart A. Indeed, Subpart B’s other regula
tions—involving such matters as employer “credit[s]” against
minimum wage payments for provision of “food,” “lodging,”
and “drycleaning,” 29 CFR § 552.100(b), and so forth—
strongly indicate that such details, not a direct interpreta
tion of the statute’s language, are at issue.
Finally, the ultimate question is whether Congress would
have intended, and expected, courts to treat an agency’s rule,
regulation, application of a statute, or other agency action as
within, or outside, its delegation to the agency of “gap
filling” authority. Where an agency rule sets forth impor
tant individual rights and duties, where the agency focuses
fully and directly upon the issue, where the agency uses full
notice-and-comment procedures to promulgate a rule, where
the resulting rule falls within the statutory grant of author
ity, and where the rule itself is reasonable, then a court ordi

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narily assumes that Congress intended it to defer to the
agency’s determination. See Mead, supra, at 229–233.
The three contrary considerations to which the Court of
Appeals points are insufficient, in our view, to overcome the
other factors we have mentioned, all of which suggest that
courts should defer to the Department’s rule. And that, in
our view, is what the law requires.
D
Respondent’s final claim is that the 1974 agency notice
and-comment procedure, leading to the promulgation of the
third-party regulation, was legally “defective” because no
tice was inadequate and the Department’s explanation also
inadequate. Brief for Respondent 45–47. We do not agree.
The Administrative Procedure Act requires an agency con
ducting notice-and-comment rulemaking to publish in its no
tice of proposed rulemaking “either the terms or substance
of the proposed rule or a description of the subjects and
issues involved.” 5 U. S. C. § 553(b)(3). The Courts of Ap
peals have generally interpreted this to mean that the final
rule the agency adopts must be “a ‘logical outgrowth’ of the
rule proposed.” National Black Media Coalition v. FCC,
791 F. 2d 1016, 1022 (CA2 1986). See also, e. g., United Steel
workers of America, AFL–CIO–CLC v. Marshall, 647 F. 2d
1189, 1221 (CADC 1980), cert. denied sub nom. Lead Indus
tries Assn., Inc. v. Donovan, 453 U. S. 913 (1981); South Ter
minal Corp. v. EPA, 504 F. 2d 646, 659 (CA1 1974). The
object, in short, is one of fair notice.
Initially the Department proposed a rule of the kind that
respondent seeks, namely a rule that would have placed out
side the exemption (and hence left subject to FLSA wage
and hour rules) individuals employed by third-party employ
ers whom the Act had covered prior to 1974. 39 Fed. Reg.
35385 (companionship workers “not exempt” if employed by
a third party that already was a “covered enterprise” under
the FLSA). The clear implication of the proposed rule was

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that companionship workers employed by third-party enter
prises that were not covered by the FLSA prior to the 1974
Amendments (e. g., most smaller private agencies) would be
included within the § 213(a)(15) exemption.
Since the proposed rule was simply a proposal, its pres
ence meant that the Department was considering the mat
ter; after that consideration the Department might choose to
adopt the proposal or to withdraw it. As it turned out, the
Department did withdraw the proposal for special treatment
of employees of “covered enterprises.” The result was a de
termination that exempted all third-party-employed com
panionship workers from the Act. We do not understand
why such a possibility was not reasonably foreseeable. See,
e. g., Arizona Public Serv. Co. v. EPA, 211 F. 3d 1280, 1299–
1300 (CADC 2000) (notice sufficient where agency first pro
posed that Indian tribes be required to meet the “ ‘same
requirements’ ” as States with respect to judicial review of
Clean Air Act permitting actions, but then adopted a final
rule that exempted tribes from certain, though not all, re
quirements), cert. denied sub nom. Michigan v. EPA, 532
U. S. 970 (2001).
Neither can we find any significant legal problem with the
Department’s explanation for the change. The agency said
that it had “concluded that these exemptions can be available
to such third party employers” because that interpretation
is “more consistent” with statutory language that refers to
“ ‘any employee’ engaged ‘in’ the enumerated services” and
with “prior practices concerning other similarly worded ex
emptions.” 40 Fed. Reg. 7405. There is no indication that
anyone objected to this explanation at the time. And more
than 30 years later it remains a reasonable, albeit brief, ex
planation. See Global Crossing Telecommunications, Inc.
v. Metrophones Telecommunications, Inc., 550 U. S. 45,
63–64 (2007).
Respondent’s only contrary argument apparently consists
of her claim that the explanation does not take proper ac

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count of the statute’s reference to “domestic service employ
ees,” which term (given the Social Security statute and legis
lative history) must refer only to those who are paid by the
household for whom they provide services. If so, she simply
repeats in different form arguments that we have already
considered and rejected. See Part II–A, supra.
III
For these reasons the Court of Appeals’ judgment is re
versed, and we remand the case for further proceedings con
sistent with this opinion.
It is so ordered.