dissenting.
I strongly disagree with the Court’s construction of 22 M.R.S.A. § 307(3) and the Procedures Manual. I must respectfully *644dissent. If words have any general and accepted meaning, the construction adopted by the Court has to be in error. The statute and the rule in issue are as follows:
To the extent practicable, a review shall be completed and the department shall make its decision within 90 days after the date of notification under subsection 1. The department, after consulting with the Health Systems Agency, shall establish criteria for determining when it is not practicable to complete a review within 90 days. Whenever it is not practicable to complete a review within 90 days, the department, after consultation with the Health Systems Agency, may extend the review period up to an additional 60 days. Any review period may be extended with the written consent of the applicant.
22 M.R.S.A. § 307(3).
Failure of the Department to provide written notification of its decision to the applicant within the Department’s deadlines shall have the effect of a decision to deny issuance of a certificate of need. [42 CFR 123.407(A)-(15) ] Failures to provide notice resulting from oversight, illness or storms shall be corrected within a period of time not exceeding ten (10) days through providing either a written denial of the Application or a certificate of need.
Procedures Manual.
The Procedures Manual leaves no room for interpretation. It clearly prescribes the sanction for departmental inaction — denial. It was developed in apparent response to a federal regulation, 42 C.F.R. § 123.-407(a)(15) (1979), which provided with equal clarity that a CON “shall not be issued” if a state agency failed to reach a decision within its deadline. Faced with unambiguous language, the Court first finds a “Draconian consequence” and then adopts an interpretation at odds with the language. In recognition of the violence which has been done to the language, the justification is offered that any other interpretation would render the provision invalid. The interpretative technique employed by the Court is appropriate only if it is first concluded that the Procedures Manual will permit two reasonable alternative interpretations. In my judgment the Court’s interpretation is neither reasonable nor is it required in order to avoid a declaration of invalidity.
The reasons offered to support the proposition that “a rule that automatically denied an application after a given period of time would be invalid” are not persuasive. First it is asserted that section 307(3) does not contemplate that the time limit would be jurisdictional and that the statutory language is directory and not mandatory. It is true that section 307(3) does not contain negative words prohibiting the completion of review after the 150-day deadline. The structure of the review period, however, does imply the negative. The first review period applies to all reviews and is 90 days. The consequence of failing to meet the first deadline is specifically provided for, i.e., a 60 day extension may be granted by the Department. The language authorizing the second review period is significant in that it confines the scope of the Department’s discretion to granting an extension of “up to ” 60 days. Clearly the negative implication has been supplied by the Legislature and the Procedures Manual merely provides the details.
The Court’s conclusion that the “pocket veto” would permit the Department to avoid the statutory requirement for explaining its decision (section 307(5-A)) is equally flawed. The Department is not required to explain its decision until it takes final agency action. Hale v. Petit, 438 A.2d 226, 229-230 (Me.1981). The decision of the Department does not become final agency action until “the department has taken final action on a request for reconsideration under section 310.” 22 M.R.S.A. § 311. By allowing the review period to expire, the Department does not shield itself from a request for reconsideration nor does it avoid the requirement of explaining its decision pursuant to section *645307(5-A) once such a request is made. The Court acknowledges the foregoing features of final agency action elsewhere in its opinion but ignores those same features in this context.
The remaining reason advanced by the Court results from an unorthodox technique of interpretation. The Department and Tall Pines argue, and the Superior Court ruled, that the Procedures Manual had been preempted and superceded by the underlying federal regulation which was changed after the Manual was adopted. In an effort to avoid conflict between the Procedures Manual and the new federal regulation, the Superior Court chose to disregard the Manual but warned of stricter interpretations if the Manual remained unchanged in the future. Although the federal government has the power to condition financial grants to the states on fulfillment of federally prescribed requirements, the National Health Planning and Resources Development Act of 1974, 42 U.S.C. §§ 300k et seq., under which the regulations in question were promulgated, does not establish a mandatory state program. The applicable federal regulations do not automatically supersede contrary state law but instead are conditions which states must conform to if they are to receive federal funds for state health programs. Clearly, if Maine’s Procedures Manual does not follow the applicable federal regulations, amendment of the Manual is the appropriate remedy. As long as the Manual remains in effect, the Department should be obligated to abide by its terms.
The Court stands the preemption argument on its head and applies a doctrine which could only be described as “auto-preemption.” Relying on a general statement of purpose the Court declares all rules in contravention of federal regulations to be invalid, ipso facto. Not only is there no federal preemption under such circumstances, it should be noted that the 1980 federal regulation eliminating automatic denial, created a grace period until January 1982 for the states to adopt the change. See 42 U.S.C.S. § 300m-6 (effective date for § 300n-l(b)(12)). Presumably the Court holds that such a grace period is unnecessary since the change is produced automatically, without action by state officials.
Finally, I do not agree with the observations concerning the overall purpose of the Maine Certificate of Need Act and the impact of these observations on the issue before us. The Court finds the review process to be designed for the sole purpose of producing a facility “as soon as possible.” I would argue that the review process is designed to insure that the proposals under consideration, including financial projections and forecasts, are contemporaneous. Otherwise a direct competitive comparison from one proposal to another would be difficult, if not impossible. Beyond that, the 150 day time limit insures that the decision will be based on reasonably current information. Obviously, the goal is to secure for the public the most financially feasible project. There is nothing in the record before us which suggests that the public will be better served by the immediate construction of the Tall Pines project, as opposed to the project which would result from a new round of competitive review. I would refrain from making such a judgment. The limited function of the Court should be to insure procedural regularity. I would reverse the decision to issue the Certificate of Need.