6332 Federal Register / Vol. 75, No. 26 / Tuesday, February 9, 2010 / Proposed Rules 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

IV. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. This determination is 

based on the analysis performed for the 

counterpart Federal regulation. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 and 

has determined that this rule meets the 

applicable standards of subsections (a) 

and (b) of that section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

730.11, 732.15, and 732.17(h)(10), 

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR Parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of SMCRA 

requires that State laws regulating 

surface coal mining and reclamation 

operations be ‘‘in accordance with’’ the 

requirements of SMCRA. Section 

503(a)(7) requires that State programs 

contain rules and regulations 

‘‘consistent with’’ regulations issued by 

the Secretary pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federallyrecognized Indian Tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian Tribes. 

The rule does not involve or affect 

Indian Tribes in any way. 

Executive Order 13211—Regulations 

That Significantly Affect The Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

U.S.C. 1292(d)) provides that agency 

decisions on proposed State regulatory 

program provisions do not constitute 

major Federal actions within the 

meaning of section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4321 et seq). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The State submittal, 

which is the subject of this rule, is based 

upon counterpart Federal regulations for 

which an economic analysis was 

prepared and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon the data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), of the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: 

a. Does not have an annual effect on 

the economy of $100 million. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S. based enterprises to 

compete with foreign-based enterprises. 

This determination is based upon the 

fact that the State submittal which is the 

subject of this rule is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the fact that the State submittal, which 

is the subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation did not impose an unfunded 

mandate. 

List of Subjects in 30 CFR Part 934 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: December 15, 2009. 

Richard M. Holbrook, 

Acting Director, Western Region. 

[FR Doc. 2010–2765 Filed 2–8–10; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 950 

[SATS No: WY–038–FOR; Docket ID: OSM– 

2009–0012] 

Wyoming Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 


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Federal Register / Vol. 75, No. 26 / Tuesday, February 9, 2010 / Proposed Rules 6333 

ACTION: Proposed rule; public comment 

period and opportunity for public 

hearing on proposed amendment. 

SUMMARY: We are announcing receipt of 

a proposed amendment to the Wyoming 

regulatory program (hereinafter, the 

‘‘Wyoming program’’) under the Surface 

Mining Control and Reclamation Act of 

1977 (‘‘SMCRA’’ or ‘‘the Act’’). Wyoming 

proposes numerous revisions and 

additions to rules concerning 

revegetation and cropland success 

standards, normal husbandry practices, 

shrub reclamation standards, fish and 

wildlife enhancement measures, 

cultural and historic resources, prime 

farmland, siltation structures and 

impoundments, and operator 

information. Wyoming intends to revise 

its program to be consistent with the 

corresponding Federal regulations and 

SMCRA, clarify ambiguities, and 

improve operational efficiency. 

This document gives the times and 

locations that the Wyoming program 

and proposed amendment to that 

program are available for your 

inspection, the comment period during 

which you may submit written 

comments on the amendment, and the 

procedures that we will follow for the 

public hearing, if one is requested. 

DATES: We will accept written 

comments on this amendment until 4 

p.m., m.s.t. March 11, 2010. If 

requested, we will hold a public hearing 

on the amendment on March 8, 2010. 

We will accept requests to speak until 

4 p.m., m.s.t. on February 24, 2010. 

ADDRESSES: You may submit comments 

by either of the following two methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. This proposed 

rule has been assigned Docket ID: OSM– 

2009–0012. If you would like to submit 

comments through the Federal 

eRulemaking Portal, go to http:// 

www.regulations.gov and follow the 

instructions. You can view the proposed 

rule and submit a comment. You can 

also view supporting material and any 

comments submitted by others. 

• Mail/Hand Delivery/Courier: Jeffrey 

Fleischman, Director, Casper Field 

Office, Office of Surface Mining 

Reclamation and Enforcement, Federal 

Building, 150 East B Street, Rm. 

1018,Casper, Wyoming 82601–1018. 

For detailed instructions on 

submitting comments and additional 

information on the rulemaking process, 

see the ‘‘III. Public Comment 

Procedures’’ in the SUPPLEMENTARY

INFORMATION section of this document. 

In addition to viewing the docket and 

obtaining copies of documents at http:// 

www.regulations.gov, you may review 

copies of the Wyoming program, this 

amendment, a listing of any public 

hearings, and all written comments 

received in response to this document at 

the addresses listed below during 

normal business hours, Monday through 

Friday, excluding holidays. You may 

also receive one free copy of the 

amendment by contacting OSM’s Casper 

Field Office. 

Jeffrey Fleischman, Director, Casper 

Field Office, Office of Surface Mining 

Reclamation and Enforcement, 

Federal Building, 150 East B Street, 

Denver, Colorado 82601–1018, 307/ 

261–06547, JFleischman@osmre.gov. 

John V. Corra, Director, Wyoming 

Department of Environmental Quality, 

Herschler Building, 122 West 25th 

Street, Cheyenne, Wyoming 82002, 

307/777–7046, jcorra.state.wy.us. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Fleischman, Telephone: (307) 

261–6547. Internet: 

jfleischman@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Wyoming Program 

II. Description of the Proposed Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations 

I. Background on the Wyoming 

Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the Wyoming 

program on November 26, 1980. You 

can find background information on the 

Wyoming program, including the 

Secretary’s findings, the disposition of 

comments, and the conditions of 

approval of the Wyoming program in 

the November 26, 1980, Federal 

Register (45 FR 78637). You can also 

find later actions concerning Wyoming’s 

program and program amendments can 

be found at 30 CFR 950.12, 950.15, 

950.16, and 950.20. 

II. Description of the Proposed 

Amendment 

By letter dated October 15, 2009, 

Wyoming sent us a proposed 

amendment to its approved regulatory 

program [Administrative Record Docket 

ID No. OSM–2009–0012]. Wyoming sent 

the amendment in response to: Portions 

of a February 21, 1990, letter that we 

sent to Wyoming in accordance with 30 

CFR 732.17(c); previous OSM 

disapprovals at 30 CFR 950.12(a)(6) and 

(7); and, required program amendments 

at 30 CFR 950.16(f), (l), (m), (p), and (u). 

The amendment also includes changes 

made at Wyoming’s own initiative. The 

full text of the program amendment is 

available for you to read at the locations 

listed above under ADDRESSES. 

Wyoming proposes to amend 

Chapters 1, 2, 4, 5, and Appendix A of 

the Land Quality Division (LQD) Coal 

Rules and Regulations (R&R) to address 

required program amendments and 

other deficiencies identified by OSM. 

The proposed changes are intended to 

clarify baseline vegetation requirements 

and revegetation reclamation plan 

requirements, clarify revegetation 

success standards and codify normal 

husbandry practices, reorganize and 

clarify species diversity and shrub 

density requirements, and revise and 

add definitions supporting those 

proposed changes. Wyoming also 

proposes rule changes to address several 

miscellaneous deficiencies. 

Specifically, Appendix A of the LQD 

R&R contains rules on vegetation 

sampling methods and reclamation 

success standards for shrubs on 

reclaimed lands. In August of 2006, 

OSM published new rules that no longer 

required sampling and statistical 

methods to be included in the rules of 

the regulatory authority. Consequently, 

much of Appendix A was no longer 

required and Wyoming proposes to 

delete Appendix A entirely and relocate 

portions thereof into Chapters 1, 2, and 

4. Wyoming’s proposed changes to 

Chapter 1 contain definitions that were 

relocated from deleted Appendix A. The 

proposed changes include new and 

revised definitions intended to clarify 

current or proposed rules and/or 

sampling methods in support of 

proposed changes in Chapters 2 and 4. 

The proposed changes include: New 

definitions for ‘‘Regulatory categories;’’ 

new definitions related to normal 

‘‘Husbandry practices;’’ revisions to the 

rules on ‘‘Reference areas;’’ revision to 

the ‘‘Eligible land’’ definition; revision to 

the ‘‘Pastureland’’ definition; and 

addition of the ‘‘Species lacking 

creditable value’’ definition. Wyoming 

also proposes to substantially reorganize 

the structure of Chapter 2 to revise 

Section 1 (General Requirements) and 

divide Section 2 (Application Content 

Requirements) into five new sections 

including Adjudication Requirements; 

Vegetation Baseline Requirements; 


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6334 Federal Register / Vol. 75, No. 26 / Tuesday, February 9, 2010 / Proposed Rules 

General Baseline Requirements; Mine 

Plan; and Reclamation Plan. 

Similarly, Wyoming proposes to 

substantially reorganize the structure of 

Chapter 4 Section 2(d) into two new 

subsections with subsection (i) 

containing general revegetation 

performance standards and most of the 

current Section 2(d) rules, and adding 

rules dealing with normal husbandry 

practices. Subsection (ii) contains 

Revegetation Success Standards listed 

by post-mine land use categories and 

includes new rules for Fish and Wildlife 

Habitat; Postmining Wetlands; 

Developed Water Resource; 

Recreational; and a new provision 

within the current land use rule for 

Special Success Standards. Wyoming 

also proposes to combine the standards 

for grazingland and pastureland into a 

single section and proposes new 

Chapter 4 Appendix 4A, which 

describes the different shrub standard 

options, and is relocated from deleted 

Appendix A. Lastly, Wyoming proposes 

changes to its rules in Chapters 2, 4, and 

5 regarding cultural and historic 

resources, prime farmland, siltation 

structures and impoundments, and 

operator information. 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the amendment 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. If we 

approve the amendment, it will become 

part of the Wyoming program. 

Electronic or Written Comments 

If you submit written comments, they 

should be specific, confined to issues 

pertinent to the proposed regulations, 

and explain the reason for any 

recommended change(s). We appreciate 

any and all comments, but those most 

useful and likely to influence decisions 

on the final regulations will be those 

that either involve personal experience 

or include citations to and analyses of 

SMCRA, its legislative history, its 

implementing regulations, case law, 

other pertinent Tribal or Federal laws or 

regulations, technical literature, or other 

relevant publications. 

We cannot ensure that comments 

received after the close of the comment 

period (see DATES) or sent to an address 

other than those listed above (see 

ADDRESSES) will be included in the 

docket for this rulemaking and 

considered. 

Public Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available in the 

electronic docket for this rulemaking at 

http://www.regulations.gov. While you 

can ask us in your comment to withhold 

your personal identifying information 

from public review, we cannot 

guarantee that we will be able to do so. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 4 

p.m., m.s.t. on February 24, 2010. If you 

are disabled and need reasonable 

accommodations to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

the hearing. If only one person 

expresses an interest, a public meeting 

rather than a hearing may be held, with 

the results included in the docket for 

this rulemaking. 

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at a public 

hearing provide us with a written copy 

of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 

wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

IV. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. This determination is 

based on the analysis performed for the 

counterpart Federal regulation. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 and 

has determined that this rule meets the 

applicable standards of subsections (a) 

and (b) of that section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

730.11, 732.15, and 732.17(h)(10), 

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of SMCRA 

requires that State laws regulating 

surface coal mining and reclamation 

operations be ‘‘in accordance with’’ the 

requirements of SMCRA. Section 

503(a)(7) requires that State programs 

contain rules and regulations 

‘‘consistent with’’ regulations issued by 

the Secretary pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federally 

recognized Indian Tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

The rule does not involve or affect 

Indian Tribes in any way. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 


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Federal Register / Vol. 75, No. 26 / Tuesday, February 9, 2010 / Proposed Rules 6335 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

U.S.C. 1292(d)) provides that agency 

decisions on proposed State regulatory 

program provisions do not constitute 

major Federal actions within the 

meaning of section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4321 et seq). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The State submittal, 

which is the subject of this rule, is based 

upon counterpart Federal regulations for 

which an economic analysis was 

prepared and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon the data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), of the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: 

a. Does not have an annual effect on 

the economy of $100 million. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S. based enterprises to 

compete with foreign-based enterprises. 

This determination is based upon the 

fact that the State submittal which is the 

subject of this rule is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the fact that the State submittal, which 

is the subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation did not impose an unfunded 

mandate. 

List of Subjects in 30 CFR Part 950 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: October 28, 2009. 

James F. Fulton, 

Acting Regional Director, Western Region. 

[FR Doc. 2010–2781 Filed 2–8–10; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

[DoD–2008–HA–0029; 0720–AB22] 

32 CFR Part 199 

Civilian Health and Medical Program of 

the Uniformed Services (CHAMPUS)/ 

TRICARE: Inclusion of TRICARE Retail 

Pharmacy Program in Federal 

Procurement of Pharmaceuticals 

AGENCY: Office of the Secretary, 

Department of Defense. 

ACTION: Reconsideration and request for 

comments. 

SUMMARY: This is notification of an 

additional opportunity to comment on 

the final rule of March 17, 2009, 

implementing provisions of section 703 

of the National Defense Authorization 

Act (NDAA) for Fiscal Year 2008). This 

statute extended pharmaceutical Federal 

Ceiling Prices (FCPs) to TRICARE Retail 

Pharmacy Program prescriptions. The 

Department of Defense (DoD) issued a 

final rule on March 17, 2009, 

implementing the law. On November 

30, 2009, the U.S. District Court for the 

District of Columbia ‘‘ordered that the 

final rule is remanded without vacatur 

for the Defense Department to consider 

in its discretion whether to readopt the 

current iteration of the rule or adopt 

another approach to implement 10 

U.S.C. 1074g(f).’’ As part of DoD’s 

reconsideration, DoD solicits public 

comments on the implementation of the 

statute, DoD’s resulting regulations, and 

the matters addressed for DoD’s 

consideration in the Court’s 

Memorandum Opinion. 

DATES: Written comments received at 

the address indicated below by March 

11, 2010 will be considered and 

addressed in the final rule. 

ADDRESSES: You may submit comments, 

identified by docket number and/or 

Regulatory Information Number (RIN) 

number and title, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. 

Follow the instructions for submitting 

comments. 

• Mail: Federal Docket Management 

System Office, 1160 Defense Pentagon, 

Washington, DC 20301–1160. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this FR 

document. The general policy for 

comments and other submissions from 

members of the public is to make these 

submissions available for public 

viewing on the Internet at http:// 

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: Rear 

Admiral Thomas McGinnis, Chief, 

Pharmacy Operations Directorate, 

TRICARE Management Activity, 

telephone (703) 681–2890. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 703 of NDAA–08 enacted 10 

U.S.C. 1074g(f). It provides that with 

respect to any prescription filled on or 

after the date of enactment (January 28, 

2008), the TRICARE Retail Pharmacy 

Program shall be treated as an element 

of DoD for purposes of the procurement 

of drugs by Federal agencies under 38 

U.S.C. 8126 to the extent necessary to 

ensure pharmaceuticals paid for by DoD 

that are provided by network retail 

pharmacies to TRICARE beneficiaries 

are subject to FCPs. This section 8126 

established FCPs for covered drugs 

(requiring a minimum 24 percent 

discount) procured by DoD and three 

other agencies from manufacturers. The 

NDAA required implementing 

regulations. 

DoD issued a proposed rule July 25, 

2008 (73 FR 43394–97). It featured 

voluntary agreements with 

manufacturers, tied to preferred 

Uniform Formulary status, to pay DoD 

refunds for drugs entered into the 

normal commercial chain of 

transactions that end up as prescriptions 

given to TRICARE beneficiaries and 

paid for by DoD, the refund amount 

being the portion of the price of the drug 

sold by the manufacturer that exceeds 

the FCPs. The proposed rule also 


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