(Slip Opinion) OCTOBER TERM, 2006 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
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
minimum wage and maximum hours rules of the Fair Labor Stan
dards Act of 1938 (FLSA) persons “employed in domestic service em
ployment to provide companionship services for individuals . . . un
able to care for themselves.” 29 U. S. C. §213(a)(15). Under a Labor
Department (DOL) regulation labeled an “Interpretatio[n]” (hereinaf
ter third-party regulation), the exemption includes those “compan
ionship” workers “employed by an . . . agency other than the family or
household using their services.” 29 CFR §552.109(a). However,
DOL’s “General Regulations” also define the statutory term “domestic
service employment” 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 “com
panionship services” provider to the elderly and infirm, sued peti
tioners, her former employer Long Island Care and its owner, seeking
minimum and overtime 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 judg
ment aside.
Held: The third-party regulation is valid and binding. Pp. 4–16.
(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
2 LONG ISLAND CARE AT HOME, LTD. v. COKE
Syllabus
(e.g., procedural) requirements, that result is legally binding. Id., at
843–844. On its face, the third-party regulation seems to fill a statu
tory gap. Pp. 4–5.
(b) The regulation does not exceed DOL’s delegated rulemaking au
thority. The FLSA explicitly leaves gaps as to the scope and defini
tion of its “domestic service employment” and “companionship ser
vices” 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 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 private enterprises, it did not then cover others, e.g., those
employed directly 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 exemp
tion be weighed against the fact that some (but not all) of the workers
were previously covered? Given the DOL’s expertise, satisfactory an
swers to the foregoing questions 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 au
thority to answer such questions. Respondent’s reliance on the Social
Security statute, whose text expressly answers a “third party” cover
age question, and on conflicting statements in the 1974 Amendments’
legislative history, is unavailing. Pp. 5–8.
(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 “Advisory Memorandum” explaining (and defending) the third-
party regulation, 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 regu
lation’s sole purpose is to explain how the companionship services ex
emption 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 qualify someone as a “domestic service” employee, the
third-party regulation is the more specific with respect to the ques
tion at issue and therefore 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 regulations differently at different times in their
Cite as: 551 U. S. ____ (2007) 3
Syllabus
history is not a ground for disregarding the present interpretation,
which the DOL reached after proposing a different interpretation
through notice-and-comment rulemaking, making any unfair sur
prise unlikely, cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204,
212. Fourth, while the Advisory Memorandum 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 and there is no
reason to suspect that its interpretation is merely a post hoc ration
alization. Pp. 8–11.
(d) Several factors compel the Court to reject respondent’s argu
ment 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 individual rights and obligations.’ ” Chrysler Corp. v.
Brown, 441 U. S. 281, 302. When promulgating the regulation and
when considering amending it, the DOL has always employed full
public notice-and-comment procedures, which under the Administra
tive Procedure Act (APA) need not be used when producing an “inter
pretive” rule, 5 U. S. C. §553(b)(A). And for the past 30 years, accord
ing 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 “Inter
pretations,” rather than in Subpart A, “General Regulations,” be
cause Subpart B contains matters of detail, interpreting and applying
Subpart A’s more general definitions. Indeed, Subpart 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 rea
sonable. Mead, supra, at 229–233. Pp. 11–14.
(e) The Court disagrees with respondent’s claim that the DOL’s
1974 notice-and-comment proceedings were legally “defective” be
cause the DOL’s notice and explanation were inadequate. Fair notice
is the object of the APA requirement that a notice of proposed rule
4 LONG ISLAND CARE AT HOME, LTD. v. COKE
Syllabus
making contain “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. Ini
tially, 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 em
ployers covered before 1974. Since that was simply a proposal, how
ever, its presence meant that the 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 foreseeable. There is also no signifi
cant legal problem with the DOL’s explanation that its final interpre
tation is more consistent with FLSA language. No one seems to have
objected to this explanation at the time, and it still remains a reason
able, albeit brief, explanation. Pp. 14–16.
462 F. 3d 48, reversed and remanded.
BREYER, J., delivered the opinion for a unanimous Court.
Cite as: 551 U. S. ____ (2007) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–593
_________________
LONG ISLAND CARE AT HOME, LTD., ET AL.,
PETITIONERS v. EVELYN COKE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 11, 2007]
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
“any employee employed in domestic service employ
ment to provide companionship services for individu
als who (because of age or infirmity) are unable to
care for themselves (as such terms are defined and de
limited 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 Department’s regulation is valid and binding. See
Chevron U. S. A. Inc. v. Natural Resources Defense Coun
cil, Inc., 467 U. S. 837, 843–844 (1984). We conclude that
it is.
2 LONG ISLAND CARE AT HOME, LTD. v. COKE
Opinion of the Court
I
A
In 1974, Congress amended the Fair Labor Standards
Act of 1938 (FLSA or Act), 52 Stat. 1060, to include many
“domestic service” employees not previously subject to its
minimum wage and maximum hour requirements. See
Fair Labor Standards Amendments of 1974 (1974 Amend
ments), §§7(b)(1), (2), 88 Stat. 62 (adding 29 U. S. C.
§206(f), which provides for a minimum wage for domestic
service employees, 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 “employed on a casual basis” and the compan
ionship workers described above. §7(b)(3), 88 Stat. 62,
(codified at 29 U. S. C. §213(a)(15)).
The Department of Labor (Department or DOL) then
promulgated a set of regulations that included two regula
tions at issue here. The first, set forth in a subpart of the
proposed regulations entitled “General Regulations,” de
fines 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, waiters,
butlers, valets, maids, housekeepers, governesses,
nurses, janitors, laundresses, caretakers, handymen,
gardeners, footmen, grooms, and chauffeurs of auto
mobiles for family use [as well as] babysitters em
ployed 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 “Inter
pretations,” says that exempt companionship workers
include those
Cite as: 551 U. S. ____ (2007) 3
Opinion of the Court
“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 work
week . . . .” 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 narrowing 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 remain exempt). 58 Fed. Reg.
69310–69312 (1993); 60 Fed. Reg. 46798 (1995); 66 Fed.
Reg. 5481, 5485 (2001). But the 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
the petitioners failed to pay her the minimum wages and
overtime 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 pay
ments if, but only if, the statutory exemption for “compan
ionship services” does not apply to companionship workers
paid by third-party agencies such as Long Island Care.
The District Court found the Department’s third-party
4 LONG ISLAND CARE AT HOME, LTD. v. COKE
Opinion of the Court
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
District 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
Circuit’s decision and remanded the case so that the Cir
cuit could consider a recent DOL “Advisory Memorandum”
explaining (and defending) the regulation. 546 U. S. 1147
(2006); App. E to Pet. for Cert. 50a (Wage and Hour Advi
sory Memorandum No. 2005–1 (Dec. 1, 2005) (hereinafter
Advisory Memorandum)). The memorandum failed to
convince the Second Circuit, which again held the regula
tion unenforceable. 462 F. 3d 48, 50–52 (2006) (per cu
riam). Long Island Care and Osborne again sought certio
rari. And this time, we granted their petition and set the
case for argument.
II
We have previously pointed out that the “ ‘power of an
administrative agency to administer a congressionally
created . . . program necessarily requires the formulation
of policy and the making of rules to fill any gap left, im
plicitly or explicitly, by Congress.’ ” Chevron, 467 U. S., at
843 (quoting 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) requirements, 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 exam
ple as to the scope and definition of statutory terms such
as “domestic service employment” and “companionship
services.” 29 U. S. C. §213(a)(15). It provides the De
partment of Labor with the power to fill these gaps
Cite as: 551 U. S. ____ (2007) 5
Opinion of the Court
through rules and regulations. Ibid.; 1974 Amendments,
§29(b), 88 Stat. 76 (authorizing the Secretary of Labor “to
prescribe necessary rules, regulations, 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 ques
tion. It gave notice, it proposed regulations, it received
public comment, and it issued final regulations in light of
that comment. 39 Fed. Reg. 35383 (1974); 40 Fed. Reg.
7404. See Mead, supra, at 230. The resulting regulation
says that employees who provide “companionship services”
fall within the terms of the statutory exemption irrespec
tive of who pays them. Since on its face the regulation
seems to fill a statutory gap, one might ask what precisely
is it about the regulation that might make it unreasonable
or otherwise unlawful?
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 par
ticular, respondent 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” regulation not warranting judicial defer
ence; 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 indi
6 LONG ISLAND CARE AT HOME, LTD. v. COKE
Opinion of the Court
viduals 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 companion
ship workers employed by certain third parties (e.g., pri
vate 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) (defining “enterprise” and “enterprise
engaged in commerce or the production of goods for com
merce”)); and she concludes that Congress must therefore
have meant its “domestic service 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 pointing to statements made
by some Members of Congress during 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 Secu
rity statute, which defines “domestic service employment”
as domestic 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 statu
Cite as: 551 U. S. ____ (2007) 7
Opinion of the Court
tory language refers broadly to “domestic service employ
ment” and to “companionship services.” It expressly in
structs 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
others. 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 defini
tion should apply to workers paid by third parties raises a
set of complex questions. Should the FLSA cover all com
panionship 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 answers to such questions may well
turn upon the kind of thorough knowledge of the subject
matter and ability to consult at length with affected par
ties that an agency, such as the Department of Labor,
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
authority 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
8 LONG ISLAND CARE AT HOME, LTD. v. COKE
Opinion of the Court
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 infirm parents).
B
Respondent says that the third-party regulation con
flicts 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 household 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
regulations are inconsistent, for the one limits the defini
tion of “domestic service employee” for purposes of the 29
U. S. C. §213(a)(15) exemption to workers employed by the
household, but the other includes in the subclass of ex
empt companionship workers persons who are not em
ployed by the household. Respondent adds that, given the
conflict, the former “General Regulation” must govern
(primarily because, 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
language of the two regulations conflicts as to whether
workers paid by third parties are included within the
statutory exemption. The question remains, however,
Cite as: 551 U. S. ____ (2007) 9
Opinion of the Court
which regulation governs in light of this conflict. The
Department, in its Advisory Memorandum, suggests that
the third-party regulation 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 ser
vice employment” for the FLSA as a whole (a prospect the
Department 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 companionship services? But if we were to apply
§552.3’s literal 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, particularly if it would withdraw from
FLSA coverage all domestic service employees previously
covered by the “enterprise coverage” provisions of the Act.
If, on the other hand, §552.3’s definition of “domestic
service employment” were limited to the statute’s exemp
tion provision, applying this definition literally (by remov
ing all third-party employees from the exemption) would
extend the Act’s coverage not simply to third-party
employed companionship workers paid by large institu
tions, but also to those paid directly by a family member of
an elderly or infirm person receiving such services when
ever the family member lived in a different household
10 LONG ISLAND CARE AT HOME, LTD. v. COKE
Opinion of the Court
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 primary (if not sole) purpose of the
conflicting general definitional regulation, §552.3, is to
describe the kind of work that must be performed by some
one 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 sur
prise—and the Department’s recourse to notice-and
comment rulemaking 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 Depart
ment’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 interpreta
Cite as: 551 U. S. ____ (2007) 11
Opinion of the Court
tion of these regulations in an “Advisory Memorandum”
issued only to internal Department personnel and which
the Department appears to have written in response to
this litigation. We have “no reason,” however, “to suspect
that [this] interpretation” is merely a “ ‘post hoc rationali
zatio[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 indicates 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 inter
pretation 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 Depart
ment’s interpretation of the two regulations falls well
within the principle that an agency’s interpretation of its
own regulations is “controlling” unless “ ‘ “plainly errone
ous or inconsistent with” ’ ” the regulations being inter
preted. Id., at 461 (quoting Robertson v. Methow Valley
Citizens Council, 490 U. S. 332, 359 (1989), in turn quot
ing 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
regulation is within the scope of the statute’s delegation, is
perfectly reasonable, and otherwise complies with the law,
courts still should not treat the regulation as legally bind
ing. Her reason is a special one. She says that the regula
tion 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 regulation may “persuade” a reviewing court,
12 LONG ISLAND CARE AT HOME, LTD. v. COKE
Opinion of the 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 (“interpretive 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 consid
erations: First, when the Department promulgated a
series of regulations to implement the §213(a)(15) exemp
tions, 29 CFR pt. 552, it placed the third-party regulation
in Subpart B, entitled “Interpretations,” not in Subpart A,
entitled “General Regulations.” Second, the Department
said that regulations 552.3, .4, .5, and .6, all in Subpart A,
contained the “definitions” that the statute “require[s].”
Third, the Department 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 concern
ing the application of the [FLSA] to domestic service em
ployees.” 376 F. 3d, at 131–132; 462 F. 3d, at 50–51 (quot
ing 39 Fed. Reg. 35382).
These reasons do not convince us that the Department
intended its third-party regulation to carry no special legal
weight. For one thing, other considerations strongly
suggest the contrary, namely that the Department in
tended the third-party regulation as a binding application
of its rulemaking authority. The regulation directly gov
erns the conduct of members of the public, “ ‘affecting
individual rights and obligations.’ ” Chrysler Corp. v.
Brown, 441 U. S. 281, 302 (1979) (quoting Morton, 415
U. S., at 232). When promulgating the rule, the agency
used full public notice-and-comment procedures, which
under the Administrative Procedure Act an agency need
not use when producing an “interpretive” rule. 5 U. S. C.
§553(b)(A) (exempting “interpretative rules, general
Cite as: 551 U. S. ____ (2007) 13
Opinion of the Court
statements of policy, or rules of agency organization,
procedure, or practice” from notice-and-comment proce
dures). Each time the Department has considered amend
ing 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 Department’s Advisory
Memorandum (and not disputed by respondent), the De
partment has treated the third-party regulation like the
others, i.e., as a legally binding exercise of its rulemaking
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 regulations—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 interpretation 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 important 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 authority, and where the rule itself
is reasonable, then a court ordinarily assumes that Con
gress 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
14 LONG ISLAND CARE AT HOME, LTD. v. COKE
Opinion of the Court
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
notice was inadequate and the Department’s explanation
also inadequate. We do not agree.
The Administrative Procedure Act requires an agency
conducting notice-and-comment rulemaking to publish in
its notice 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 Appeals 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 Steelworkers of America, AFL–CIO–CLC
v. Marshall, 647 F. 2d 1189, 1221 (CADC 1980), cert.
denied sub nom. Lead Industries Assn., Inc. v. Donovan,
453 U. S. 913 (1981); South Terminal 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 outside the exemption (and hence left subject to
FLSA wage and hour rules) individuals employed by
third-party employers 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 implica
tion of the proposed rule was that companionship workers
employed by third-party enterprises that were not covered
by the FLSA prior to the 1974 Amendments (e.g., most
Cite as: 551 U. S. ____ (2007) 15
Opinion of the Court
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
matter; 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 determination that exempted all third-
party-employed companionship workers from the Act. We
do not understand why such a possibility was not rea
sonably foreseeable. See, e.g., Arizona Public Serv. Co. v.
EPA, 211 F. 3d 1280, 1299–1300 (CADC 2000) (notice
sufficient where agency first proposed 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, requirements), 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 simi
larly worded exemptions.” 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 reason
able, albeit brief, explanation. See Global Crossing Tele
communications, Inc. v. Metrophones Telecommunications,
Inc., 550 U. S. ___, ___ (2007) (slip op., at 18).
Respondent’s only contrary argument apparently con
sists of her claim that the explanation does not take
proper account of the statute’s reference to “domestic
service employees,” which term (given the Social Security
16 LONG ISLAND CARE AT HOME, LTD. v. COKE
Opinion of the Court
statute and legislative 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 argu
ments that we have already considered and rejected. See
Part II–A, supra.
III
For these reasons the Court of Appeals’ judgment is
reversed, and we remand the case for further proceedings
consistent with this opinion.
It is so ordered.