Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
The facts (except those added in the opinion of this court) are stated in the opinion of the District Court, 89 F.Supp. 304.
In the light of Gemsco v. Walling, 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 921,*fn1 and especially because of the subsequent addition of Section 11(d) of the Act*fn2 we think the Act sufficiently broad to authorize an administrative order or regulation including homeworkers engaged in activities such as those who dealt with the defendant here. That was the issue presented to the trial judge and chiefly argued on this appeal. Were there no more to the case, we would affirm.
However, in a footnote in defendant's brief, and in its oral argument, in this court, it was also argued that the homeworkers here were not within the scope of the Administrator's regulation. Those regulations contain this definition: "As used in these regulations, the term 'industrial homework,' means the production of any person in or about a home, apartment, tenement or room, in a residential establishment, for an employer of goods from material furnished directly by or indirectly for such employer."*fn3 There is no evidence to show that the material was thus furnished by defendant.*fn4
Plaintiff argues that this was an unintended loophole in the regulations; that the public hearings which preceded the issuance of the regulations disclose that the regulations were meant to cover such homeworkers as those here; and that, recognizing the administrative purpose, we should not construe the regulations too literally.
Were we interpreting a statute to ascertain what power it conferred on an administrative officer, much could be said for such an argument. Beginning at least with Aristotle, it has often been recognized that, as a legislature cannot foresee all possible particular instances to which legislation is to apply, it must therefore be reasonably so interpreted to fill in gaps.*fn5 But when the legislature delegates to an administrative official the authority, by "sublegislation", to issue regulations, in order to fill in those gaps, then the regulations, precisely because they particularize, ought not be as generously interpreted as the statute. In fairness to the regulated, the provisions of the regulations should not be deemed to include what the administrator, exercising his delegated power, might have covered but did not cover. True, in deciding what they do cover, we must not regard their literal terms merely, but must also give much weight to administrative interpretive rulings which have been published and of which the regulated are thus on notice.*fn6 But here there were no published rulings giving the construction for which plaintiff contends.
However, as the defendant's argument based on the definition in the regulations was first made in this court, we will remand the case to afford plaintiff the opportunity to offer further evidence, if he so desires, showing that the workers fall within that definition.
SWAN, Circuit Judge, concurs in ...