contends that Secretary’s 2005 addition of a temporal limitation to the preamble of (c)(4)(iii) — which made it clear that the paragraph did not apply to cost years after 2002 — was an improper retroactive change to the regulation. A regulatory change is retroactive if it “attaches new l nge was retroactive, pointing to 2002 statements in the Federal Register that purportedly demonstrate that CMS previously shared Fayetteville’s understanding of the regulation. The Court disagrees. The 2005 addition to the preamble of paragraph (c)(4)(iii) merely clarified that the paragraph, as outlined above, was superfluous because Congress had not authorized the BBA caps after 2002. See Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129, 134-35, 56 S.Ct. 397, 80 L.Ed. 528 (1936) (<HOLDING>). Moreover, the Federal Register passages cited
holding that it is not holding that when a court is asked to construe an ambiguous statute it must defer to the interpretation set out in a regulation promulgated by the agency charged with administering the statute so long as the agencys interpretation is reasonable holding that a regulation which  operates to create a rule out of harmony with the statute is a mere nullity and amending it is not a retroactive change holding that a federal regulation did not create privity of contract between the plaintiff and the government recognizing that when an agency promulgates a regulation that is intended to preempt state law the regulation should not be disturbed unless there is evidence that it is contrary to congressional intent