in the future. Plaintiff's Reply at 9. This Court cannot fashion relief for these grievances. Inconvenience from past interpretations is not a proper subject for judicial relief in this setting and the Secretary's current interpretation seems to be a reasonable one and not arbitrary or capricious. Future injury is not imminent.
C. Procedural Challenge. Has the Secretary violated the rulemaking requirements of the Administrative Procedure Act in promulgating the challenged regulations? Plaintiff contends that defendant has violated the informal rulemaking requirements of the APA in his establishment of the regulations at issue in this litigation: (1) the April 13, 1976 Notice of Rulemaking did not satisfy the statutory requirement by indicating that a profit limitation was under consideration and open for comment; (2) interested parties were not permitted to submit written comment regarding the proposed regulations, and (3) the preamble accompanying the final regulation did not satisfy the statutory directive that issued regulations be accompanied by a "concise general statement of their basis and purpose." See 5 U.S.C. § 553(b), (c). This Court must decide whether there was a failure to comply with the rulemaking process which would obligate us to invalidate the rules themselves. See National Welfare Rights Organization v. Mathews, 174 U.S. App. D.C. 410, 533 F.2d 637, 649 (1976) (regulations invalidated due to shortcomings of rulemaking procedures). Our analysis will be two-pronged. First, was the final regulation a foreseeable outcome of the notice and comment procedure activated by the April 13, 1976 notice; and second, does the final regulation properly guide interested persons in their attempts to comply with the provisions. These inquiries may be distinguished on the basis of the time frame in which they arise: the former inquiry centers upon the preparation and issuance of the regulations, and the latter inquiry centers upon effectuating compliance with the law and regulations.
We believe that the differences between the proposed regulation and the final regulation are insufficient to serve as a basis for invalidating the rulemaking procedures. The proposed regulation was sufficient to put affected persons on notice that the rulemaking procedure would impact upon their interests. In addition, the proposal emphasized that the purpose was to reward "efficient management." Proposed Regulation 45 C.F.R. § 250.30(b)(6)(iii)(e). While state flexibility was indeed encouraged by the Notice of Rulemaking, the fact that the final regulation retained some federal control over maximum payments does not strike this Court as an egregious departure from what an interested party such as plaintiff could reasonably have anticipated. See Ethyl Corp. v. Environmental Protection Agency, 176 U.S. App. D.C. 373, 541 F.2d 1, 48 (1976).
However, we are troubled by the failure of the Secretary to include a statement of basis and purpose in the final regulation. The confusion which state administrators have faced in attempting to satisfy the regulatory requirements clearly illustrates the rationale and need for such a statement. Likewise, judicial review would be facilitated by such a statement of basis and purpose by enabling a court to gain some insight into the administrative thinking which accompanied the issuance of the regulations. See Automotive Parts & Accessories Association v. Boyd, 132 U.S. App. D.C. 200, 407 F.2d 330, 338 (1968). This Court does not condone a trial-and-error approach in the implementation of administrative regulations. See 2 Davis, Administrative Law Treatise § 16.05 at 444 (1958 ed.) (purpose statement, inter alia, prevents agencies from overstepping jurisdiction).
For these reasons, this Court will direct that the Secretary, within sixty (60) days, issue a statement of basis and purpose which statement shall serve to advise interested parties of the intended operation of the regulation. With this limited exception, we shall grant defendant's motion for summary judgment and deny plaintiff's counter motion.
An Order consistent with the foregoing has been issued this day.
John H. Pratt United States District Judge [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 443 F. Supp.]
Upon consideration of the cross-motions for summary judgment, points and authorities in support thereof, and response thereto, it is by the Court this 7th day of December, 1977,
ORDERED, that defendant Secretary of the Department of Health, Education and Welfare shall, within sixty (60) days, issue a statement of basis and purpose, as directed by 5 U.S.C. § 553(c), to accompany the regulations implementing 42 U.S.C. § 1396a(a)(13)(E); and it is further
ORDERED, that the motion of defendant for summary judgment in all other respects be, and the same hereby is, granted; and it is further
ORDERED, that the motion of plaintiff for summary judgment be, and the same hereby is, denied except insofar as plaintiff seeks to compel such statement of basis and purpose in which respect summary judgment is granted; and it is further
ORDERED, that this action be, and the same hereby is, dismissed.
John H. Pratt United States District Judge