6336 Federal Register / Vol. 75, No. 26 / Tuesday, February 9, 2010 / Proposed Rules 

solicited comment regarding any other 

appropriate and legally permissible 

implementation approach. 

DoD issued a final rule March 17, 

2009 (74 FR 11279–93), which was 

similar to the proposed rule. The 

preamble to the final rule discussed 

DoD’s effort, particularly in the use of 

voluntary agreements tied to formulary 

status, to find ‘‘common ground’’ with 

the drug industry, which opposes FCPs. 

The preamble also stated that DoD 

interpreted the statute as automatically 

capping the price manufacturers may 

charge for those drugs that enter into the 

commercial chain of transactions that 

end up as TRICARE-paid prescriptions, 

resulting in the conclusion that the 

amount above the FCP was an 

overpayment by DoD, which in turn 

required a refund of the overpayment. 

After the final rule became effective, 

May 26, 2009, drug companies signed 

voluntary agreements covering 

approximately 99 percent of TRICARE 

retail prescriptions. 

However, at the same time, there was 

a litigation challenge to the validity of 

the final rule in a case called Coalition 

for Common Sense in Government 

Procurement v. U.S., U.S. District Court 

for the District of Columbia, Civ. No. 

08–996 (JDB), 2009 U.S. Dist. LEXIS 

110746. The Court issued a decision 

November 30, 2009. This decision had 

four major points: 

• Although 10 U.S.C. 1074g(f) 

requires that FCPs shall apply, the 

statute does not specify how they will 

apply. DoD incorrectly interpreted the 

statute as requiring manufacturer 

refunds, to the exclusion of other 

possible approaches. DoD must 

reconsider the implementation of the 

statute as a function of its discretionary 

judgment, rather than only as a legal 

interpretation. For example, DoD should 

exercise its discretion to consider 

‘‘which of the five parties that 

participate in the retail pharmacy 

program—manufacturers, wholesalers, 

network pharmacies, private pharmacy 

benefit managers, and TRICARE 

beneficiaries—must bear any costs 

associated with imposing the Federal 

Ceiling Prices.’’ 

• While DoD considers whether to 

readopt the final rule as it currently 

stands or to change it, the final rule will 

remain in effect, as will the 

manufacturer agreements that cover 

approximately 99 percent of TRICARE 

retail prescriptions. (This is the effect of 

the Court’s Order that the final rule is 

‘‘remanded without vacatur.’’) 

• DoD correctly interpreted the 

statute as applying FCPs to all 

prescriptions filled on or after January 

28, 2008. 

• The Court ordered that DoD file a 

status report with the Court by not later 

than March 1, 2010, ‘‘documenting its 

consideration on remand.’’ 

B. Invitation of Additional Public 

Comments 

Although the Court did not 

specifically require more public 

comments, DoD invites public 

comments on the final rule issued 

March 17, 2009, as well as additional 

comments regarding any other 

appropriate and legally permissible 

implementation approach. DoD 

recommends that interested parties 

focus their comments on those matters 

that the Court addressed as requiring 

DoD reconsideration on the remand of 

the final rule. In considering alternative 

approaches, DoD intends to use at least 

the following three criteria (and 

welcomes comment on other suggested 

criteria): (1) Harmony with the statute 

and legislative history; (2) consistency 

with best business practice; and (3) 

practicability of administration. In 

addition to the citations noted above, to 

assist interested parties, the final rule 

and the Court’s Order and 

Memorandum Opinion are posted on 

the TRICARE Pharmacy Program Web 

site at: http://www.tricare.mil/ 

pharm_mfg/default.cfm. 

Dated: February 3, 2010. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2010–2666 Filed 2–8–10; 8:45 am] 

BILLING CODE 5001–06–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2009–0706; FRL–9111–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Removal of NOX SIP Call 

Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve the 

State Implementation Plan (SIP) 

revision submitted by the State of West 

Virginia that removes West Virginia’s 

nitrogen oxides (NOx) SIP Call rules. In 

the Final Rules section of this Federal 

Register, EPA is approving the State’s 

SIP submittal as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this action, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

DATES: Comments must be received in 

writing by March 11, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2009–0706 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: 

fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2009–0706, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket=s normal hours of operation, 

and special arrangements should be 

made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2009– 

0706. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 


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Federal Register / Vol. 75, No. 26 / Tuesday, February 9, 2010 / Proposed Rules 6337 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the State submittal are 

available at the West Virginia 

Department of Environmental 

Protection, Division of Air Quality, 601 

57th Street SE., Charleston, West 

Virginia 25304. 

FOR FURTHER INFORMATION CONTACT: 

Marilyn Powers, (215) 814–2308, or by 

e-mail at powers.marilyn@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

further information, please see the 

information provided in the direct final 

action, with the same title, that is 

located in the ‘‘Rules and Regulations’’ 

section of this Federal Register 

publication. Please note that if EPA 

receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

Dated: January 22, 2010. 

W. C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2010–2674 Filed 2–8–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0010; FRL–9111–8] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Control of Carbon Monoxide 

Emissions from Basic Oxygen 

Furnaces 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve the 

State Implementation Plan (SIP) 

revision submitted by the State of 

Maryland for the purpose of replacing 

the existing requirements for the control 

of carbon monoxide (CO) emissions 

from basic oxygen furnaces (BOFs) at 

steel mills with a new CO standard for 

BOFs at steel mills. In the Final Rules 

section of this Federal Register, EPA is 

approving the State’s SIP submittal as a 

direct final rule without prior proposal 

because the Agency views this as a 

noncontroversial submittal and 

anticipates no adverse comments. A 

detailed rationale for the approval is set 

forth in the direct final rule. If no 

adverse comments are received in 

response to this action, no further 

activity is contemplated. If EPA receives 

adverse comments, the direct final rule 

will be withdrawn and all public 

comments received will be addressed in 

a subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period. Any parties 

interested in commenting on this action 

should do so at this time. 

DATES: Comments must be received in 

writing by March 11, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2010–0010 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: 

fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2010–0010, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2010– 

0010. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the State submittal are 

available at Maryland Department of the 

Environment, 1800 Washington 

Boulevard, Suite 705, Baltimore, 

Maryland 21230. 

FOR FURTHER INFORMATION CONTACT: 

Maria A. Pino, (215) 814–2181, or by email at pino.maria@epa.gov. 


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