Removal of Outdated Regulations, 34144-34148 [2024-09152]

Download as PDF 34144 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations [FR Doc. 2024–08713 Filed 4–29–24; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service 42 CFR Part 136 RIN 0917–AA24 Removal of Outdated Regulations Indian Health Service, Department of Health and Human Services. ACTION: Final rule. AGENCY: The Indian Health Service (IHS) of the Department of Health and Human Services (HHS or ‘‘the Department’’) is issuing this final rule to remove outdated regulations that do not align with the current statutory text. DATES: This final rule is effective May 30, 2024. FOR FURTHER INFORMATION CONTACT: Joshuah Marshall, Senior Advisor to the Director, Indian Health Service, 5600 Fishers Lane, Rockville, MD 20857, email: joshuah.marshall@ihs.gov, telephone: 301–443–7252. SUPPLEMENTARY INFORMATION: SUMMARY: lotter on DSK11XQN23PROD with RULES1 I. Background On January 27, 1982, the IHS published regulations imposing restrictions on the use of Federal funding for certain abortions, currently codified at 42 CFR 136.51 through 136.57.1 These regulations implementing IHS program authority pursuant to 25 U.S.C. 13 and 42 U.S.C. 2001 allowed the use of IHS funds for abortions only when a physician certified that ‘‘the life of the mother would be endangered if the fetus were carried to term.’’ This restriction was to be consistent with a provision in the annual appropriations legislation for the Departments of Labor, Health and Human Services, and Education, sometimes referred to as the ‘‘Hyde Amendment,’’ that restricted the use of Federal funds for certain abortions, which did not automatically apply to IHS funding.2 The purpose of these IHS regulations was specifically ‘‘to conform IHS practice to that of the rest of the Department [of Health and Human Services] in accordance with the 1 Final Rule, Provision of Abortion Services by the Indian Health Service, 47 FR 4016 (Jan. 27, 1982). 2 Continuing Appropriations for FY 1981, Public Law 96–369 (1980); Continuing Appropriations Act for FY 1982, Public Law 97–92 (1981). VerDate Sep<11>2014 16:24 Apr 29, 2024 Jkt 262001 applicable congressional guidelines.’’ 3 In 1988, Congress enacted 25 U.S.C. 1676, explicitly extending any limitations on the use of funds included in HHS appropriations laws with respect to the performance of abortions to apply to funds appropriated to IHS. As such, IHS became subject to the Hyde Amendment as included in annual appropriations legislation. Since the IHS promulgated these regulations in 1982, Congress has repeatedly revised annual restrictions related to the use of Federal funds for certain abortions. In fiscal year 1994, for instance, Congress revised the Hyde Amendment to include additional exceptions to the general prohibition on the use of Federal funds for abortions, including in instances in which a pregnancy is the result of an act of rape or incest.4 Similarly, in fiscal year 1998, Congress also altered the standards for when the ‘‘life of the mother’’ may be considered an exception.5 As relevant here, the Hyde Amendment currently provides that no covered funds ‘‘shall be expended for any abortion’’ or ‘‘for health benefits coverage that includes coverage of abortion,’’ except ‘‘if the pregnancy is the result of an act of rape or incest; or . . . in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.’’ 6 The current IHS regulations do not align with the current text of the Hyde Amendment or with 25 U.S.C. 1676. The IHS has complied with, and will continue to comply with, the statutory exceptions; has clarified its compliance with the statutory limitations through policy directives; 7 and now removes these outdated regulations in their entirety.8 Doing so will eliminate any 3 Final Rule, Provision of Abortion Services by the Indian Health Service, 47 FR 4016 (Jan. 27, 1982). 4 Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1994, Public Law 103–112, 509, 107 Stat. 1082, 1113 (1993). 5 Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1998, Public Law 105–78, 509(b), 111 Stat. 1467, 1516 (1997). 6 Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2024, Public Law 118–47, secs. 506–507, title V of Division D, 138 Stat. 703 (2024). 7 Indian Health Service Circular No. 22–15, Use of Indian Health Service Funds for Abortions (Jun. 30, 2022), https://www.ihs.gov/ihm/circulars/2022/ use-of-indian-health-service-funds-for-abortions/. 8 The regulations also speak to recordkeeping requirements and confidentiality of information. However, these provisions are unnecessary to PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 potential confusion regarding these outdated regulations and will ensure alignment with the applicable congressional restrictions governing HHS given Congress’s enactment of 25 U.S.C. 1676, which independently aligns relevant restrictions applicable to the IHS and HHS. Regulations on this subject are not necessary to implement the IHS’s authority. Nor are they necessary to comply with statutory directives. Moreover, amending the regulations to reflect the current Hyde Amendment could cause additional confusion in the future if Congress changes the annual appropriations language, as it has in the past. II. Development of Rule The IHS published a notice of proposed rulemaking in the Federal Register on January 8, 2024 (89 FR 896), with a sixty-day comment period, which closed on March 8, 2024. Notification regarding a Tribal consultation session was sent via a Dear Tribal Leader Letter on January 17, 2024. The consultation session was conducted virtually on February 27, 2024. The IHS has reviewed public comments it received and addresses them below. III. Comments The IHS received six written comments.9 Two of the written comments were generally in favor of the removal. These two written comments were submitted by: (1) an individual and (2) a group of 20 individuals and advocacy organizations. Four of the written comments were generally opposed to the removal. These four comments were submitted by advocacy organizations. At the Tribal Consultation session, the IHS received three oral comments from representatives of Indian Tribes. Each of these three oral comments were generally in favor of the removal or nongermane to the removal. After reviewing both written comments and those comments received orally through the Tribal consultation session, the IHS is finalizing this rule as proposed. Accordingly, this final rule will remove the current IHS Hyde regulations in their entirety, by removing and reserving subpart F, consisting of 42 CFR 136.51 through 136.57. Below, IHS summarizes and maintain, because recordkeeping and confidentiality of information are independently required by other laws and regulations that will remain in effect. See, e.g., 45 CFR parts 160, 164 (Standards for Privacy of Individually Identifiable Health Information (The Privacy Rule)). 9 See generally, public comments posted in response to Docket ID # IHS–2024–0001, https:// www.regulations.gov/document/IHS-2024-00010001/comment. E:\FR\FM\30APR1.SGM 30APR1 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES1 addresses all substantive topics raised in comments. A. Comments Supporting the Removal One commenter in the consultation session supported removal of the regulations. That commenter additionally suggested as a policy matter that the IHS consider allowing a nurse practitioner or licensed practitioner other than a physician to certify an abortion in cases in which certification is required. Under the current version of the Hyde Amendment, the IHS cannot make the requested change. The current version of the Hyde Amendment, made applicable to IHS funding by 25 U.S.C. 1676(a), includes an exception in cases ‘‘where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.’’ Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2024, Public Law 118–47, secs. 506–507, title V of Division D, 138 Stat. 703 (2024) (emphasis added). The IHS’ removal of the outdated regulations cannot affect the separate statutory requirement that the certification be made by a physician. Therefore, the IHS has not made changes based on this comment. Another commenter in the consultation session supported removal of the regulations and asked the IHS whether it intends to replace these regulations at a later time. While the IHS appreciates this question, regulations on this subject are not necessary to implement IHS’ authority, nor are they necessary to comply with statutory directives. Moreover, amending the regulations to reflect the current Hyde Amendment could cause additional confusion in the future if Congress changes the annual appropriations language, as it has in the past. Therefore, the IHS has not made changes based on this comment. However, the IHS retains the discretion to promulgate regulations at a later date. The IHS received an additional comment during the consultation session about what Tribes are permitted to do with their own, non-Federal funds. While the IHS appreciates the comment, it is outside the scope of this action. The regulations at issue apply only to IHS’ operations as a healthcare provider and payer. Therefore, the IHS has not made changes based on this comment. VerDate Sep<11>2014 16:24 Apr 29, 2024 Jkt 262001 One commenter 10 supported removal of the regulations, based on the justifications provided in the notice of proposed rulemaking. The commenter opined that it was common sense to eliminate the regulations, since the IHS is required by 25 U.S.C. 1676 to follow the Hyde Amendment. The commenter also believes that removal would reduce confusion. In addition to agreeing with the justifications provided in the notice of proposed rulemaking, this commenter explained that the outdated regulations could lead to violations of the Equal Protection Clause of the Constitution if enforced. The commenter argued that if the regulation were enforced, American Indian and Alaska Native (AI/AN) people seeking abortions funded by the IHS would be treated differently than other individuals seeking abortions funded by HHS in other circumstances because only the second group would be able to take advantage of all of the exceptions included in the current Hyde Amendment. This comment requires no change to the proposed rule. One comment,11 submitted on behalf of a group of individuals, supported the removal but recommended that the IHS address disparate reproductive health outcomes for AI/AN people, including in urban areas, through activities outside of this rulemaking. The comment also recommended that the IHS improve its capacity for abortions consistent with the Hyde Amendment, and provide additional information, education, and engagement with AI/AN people about permitted abortions. This comment also discussed the commenters’ opposition to the scope and impact of the Hyde Amendment itself. These comments are outside of the scope of the rulemaking. B. Comments Recommending Retaining the Regulations as Written Several commenters asked that the IHS retain the regulations as written, specifically 42 CFR 136.53 and 136.54 (the two sections that describe the limitations on the use of IHS funding for abortions). These commenters stated that the Hyde Amendment does not require, only permits, the use of IHS funding for abortion in cases of rape or incest. Therefore, the commenters opined that the IHS regulations are not outdated or in conflict with the current law, and also expressed their belief that abortions should not be provided when a pregnancy is the result of rape or 10 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0003, https://www.regulations.gov/ comment/IHS-2024-0001-0003. 11 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0007, https://www.regulations.gov/ comment/IHS-2024-0001-0007. PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 34145 incest. One commenter 12 also expressed concern that, should the Hyde Amendment not be included in the annual appropriations act and these regulations are removed, the IHS would be able to further expand access to abortions. Congress has intentionally broadened the exceptions to the limitation on the use of Federal funds for abortion to include instances of rape or incest, and has specifically made the current scope of the Hyde Amendment applicable to IHS, via 25 U.S.C. 1676(a). Removing the outdated and unnecessary provisions of 42 CFR 136.53 and 136.54 simply aligns IHS regulations with congressional action. Comments about the substance and application of the Hyde Amendment itself are outside of the scope of this rulemaking. Should Federal law regarding the use of Federal funds for abortion change in the future, the IHS could consider whether regulatory provisions should be proposed. But this final rule will ensure that the IHS follows applicable statutory provisions at any given time. Therefore, the IHS has not made changes based on these comments. Two commenters 13 stated that removing the regulations is inconsistent with the IHS mission and authority under the Snyder Act, 25 U.S.C. 13, to provide care and assistance for the ‘‘conservation of health,’’ claiming that providing abortions in the case of rape or incest is not healthcare, and that abortion in general does not conserve the health of the fetus. The IHS has determined that removing 42 CFR 136.53 and 136.54 clearly aligns with congressional action, and this regulatory action simply removes outdated and unnecessary regulations. Comments about the substance and application of the Hyde Amendment itself are outside of the scope of this rulemaking. Therefore, the IHS has not made changes based on these comments. One commenter 14 stated that providing abortions in the cases of rape or incest is not consistent with the trust relationship between the Federal Government and Tribes, and asserted that it infringes on Tribal sovereignty. The IHS has determined that removing 42 CFR 136.53 and 136.54 clearly aligns with congressional action, and this 12 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0005, https://www.regulations.gov/ comment/IHS-2024-0001-0005. 13 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0005, https://www.regulations.gov/ comment/IHS-2024-0001-0005, Comment ID # IHS– 2024–0001–0006, https://www.regulations.gov/ comment/IHS-2024-0001-0006. 14 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0005, https://www.regulations.gov/ comment/IHS-2024-0001-0005. E:\FR\FM\30APR1.SGM 30APR1 34146 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES1 regulatory action simply removes outdated and unnecessary regulations. Comments about the substance of the Hyde Amendment itself are outside of the scope of this rulemaking. The use of IHS funds for certain abortions does not infringe on Tribal sovereignty. The IHS’ clinicians and patients work together to determine the most appropriate treatment in an individual case. Moreover, this action does not affect a Tribe’s right to self-determination or self-governance, nor does it impact any Tribe’s choice to administer IHS health care programs itself. This action applies only to IHS operations as a healthcare provider and payer. The current regulations also do not reflect a determination that considerations surrounding Tribal sovereignty or the trust relationship forecloses funding for abortions in cases of rape or incest. See 46 FR 22617; 47 FR 4017–18. Therefore, the IHS has not made changes based on this comment. One commenter 15 suggested that an exception to provide abortions in the cases of rape or incest is inappropriate. Removing the outdated regulations, however, would merely align IHS policy, via 25 U.S.C. 1676, with whatever limitations Congress has imposed at any given time, and with that of the rest of HHS. Comments about the substance of the Hyde Amendment itself are outside of the scope of this rulemaking. Therefore, the IHS has not made changes based on this comment. C. Comments recommending amending the regulations Several commenters suggested, as an alternative to retaining the regulations as written, that the IHS consider amending 42 CFR 136.54. Two commenters 16 suggested amending 42 CFR 136.54 to align with the Hyde Amendment. One of these commenters 17 recommended options to incorporate a reference to the Hyde Amendment, or to include a qualifier that, if the limitations in the Hyde Amendment change, the regulations will as well, or to cross reference the Hyde Amendment without describing the exceptions currently contained in that language. One of these 15 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0006, https://www.regulations.gov/ comment/IHS-2024-0001-0006. 16 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0004, https://www.regulations.gov/ comment/IHS-2024-0001-0004; Comment ID # IHS– 2024–0001–0006, https://www.regulations.gov/ comment/IHS-2024-0001-0006. 17 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0006, https://www.regulations.gov/ comment/IHS-2024-0001-0006. VerDate Sep<11>2014 16:24 Apr 29, 2024 Jkt 262001 commenters 18 explained its view that removing the regulations would cause more confusion to providers, and described problematic historical practices as an example of why clear IHS rules are needed. The IHS finds that these recommendations would merely restate Federal law, and are therefore unnecessary. The IHS disagrees that removal will cause more confusion. To the contrary, amending the regulations to reflect the current Hyde Amendment could cause additional confusion in the future if Congress changes the annual appropriations language, as it has in the past. Since 25 U.S.C. 1676 already applies the Hyde Amendment to IHS by law, regulations reflecting the Hyde Amendment are superfluous. The IHS has also clarified its compliance with the statutory limitations through policy directives and will continue to provide clear guidance to its staff. Therefore, the IHS has not made changes based on these comments. One commenter 19 recommended amending 42 CFR 136.54 to state that Federal funds are available when a physician has found and certified that, on the basis of his or her professional judgment, ‘‘a statutory condition for such funding, referenced in 25 U.S.C. 1676, is satisfied.’’ The IHS does not view this change as necessary, since 25 U.S.C. 1676 is applicable to the IHS as a matter of law. In addition, the language recommended by the commenter is unclear, because there are no statutory conditions in 25 U.S.C. 1676 itself. This statute instead applies certain other Federal limitations on the use of funds for the performance of abortions to the IHS. Therefore, the IHS has not made changes based on this comment. One commenter 20 stated that the IHS must publish a supplemental notice of proposed rulemaking to explain why it is removing and not replacing the regulations. The IHS clearly outlined its reasoning for removing the regulations in the proposed rule.21 Therefore, the IHS has not made changes based on this comment. One commenter 22 also offered edits to 42 CFR 136.55 (‘‘Drugs and devices and termination of ectopic pregnancies’’) to 18 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0004, https://www.regulations.gov/ comment/IHS-2024-0001-0004. 19 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0002, https://www.regulations.gov/ comment/IHS-2024-0001-0002. 20 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0004, https://www.regulations.gov/ comment/IHS-2024-0001-0004. 21 89 FR 896 at 897. 22 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0002, https://www.regulations.gov/ comment/IHS-2024-0001-0002. PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 suggest that Federal funds cannot be used for some treatments for ectopic pregnancy. The IHS does not agree and, consistent with these regulations that are now being withdrawn, reaffirms the policy stated in current 42 CFR 136.55 that Federal funds are available for medical procedures necessary for the termination of an ectopic pregnancy. The IHS has existing broad authority under 25 U.S.C. 13 and 42 U.S.C. 2001 to provide healthcare. Accordingly, a regulation stating that funds are available for medical treatments for ectopic pregnancy is unnecessary and the IHS has not made changes based on this comment. One commenter 23 stated that the certification requirement in 42 CFR 136.54 should be retained, even if other portions were changed or moved, to ensure compliance with Congress’s funding limitations. The IHS believes retaining this section of the regulation is unnecessary. The language in the Hyde Amendment, already made applicable to the IHS via 25 U.S.C. 1676(a), currently contains a physician certification requirement. Retaining that language in the regulation could cause confusion in the future if Congress changes the annual appropriations language, as it has in the past. Therefore, the IHS has not made changes based on this comment. Some commenters also stated that the remaining sections in subpart F should be retained. These commenters stated that the IHS did not provide justification as to why it was removing the entire section, and not just 42 CFR 136.54. As stated in the notice of proposed rulemaking,24 the sections on recordkeeping and confidentiality of information (42 CFR 136.56, 136.57) are unnecessary to maintain because these requirements are independently required by other laws and regulations that will remain in effect. See, e.g., 45 CFR parts 160, 164 (Standards for Privacy of Individually Identifiable Health Information (The Privacy Rule)); 44 U.S.C. 31 (The Federal Records Act). Other commenters similarly requested that the sections on recordkeeping and confidentiality of information be maintained, stating that doing so would ensure accountability, confidentiality, and patient safety. The IHS agrees that recordkeeping and confidentiality requirements serve those important purposes. However, the IHS has sufficient safeguards in place for recordkeeping already required by other 23 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0002, https://www.regulations.gov/ comment/IHS-2024-0001-0002. 24 89 FR 897. E:\FR\FM\30APR1.SGM 30APR1 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations Federal laws and regulations, and therefore retaining these regulations is unnecessary. The definition of ‘‘physician’’ in 42 CFR 136.52 is also unnecessary as the meaning of ‘‘physician’’ is well-established in practice and law. See, e.g., 42 U.S.C. 1395x(r). As acknowledged by a different commenter,25 certain sections (§§ 136.51 (‘‘Applicability’’), 136.53 (‘‘General rule’’)) only exist in relation to other sections of subpart F, and thus are superfluous upon the removal of 42 CFR 136.54. Finally, the IHS has existing broad authority under 25 U.S.C. 13 and 42 U.S.C. 2001 to provide healthcare; accordingly, and as described above, 42 CFR 136.55 is unnecessary. Therefore, the IHS has not made changes based on these comments. lotter on DSK11XQN23PROD with RULES1 D. Other Comments One commenter 26 stated that, as a policy matter, the IHS should not use Federal funds for drugs or devices to prevent implantation of the fertilized ovum. The IHS disagrees with this assertion and the removal of 42 CFR 136.55 makes no changes to IHS’ existing authority to use Federal funds for the purposes described in the regulatory language being removed. The IHS’ broad authority under 25 U.S.C. 13 and 42 U.S.C. 2001 authorizes the IHS to use Federal funds for necessary medical care such as contraception and therefore the IHS does not accept the commenter’s policy suggestion to limit the use of funds for this purpose. Therefore, the IHS has not made changes based on this comment. One commenter 27 explained its view that abortion harms AI/AN people, and recounted some of the history of maltreatment of AI/ANs. These comments are outside of the scope of this action, which merely aligns IHS regulation with statutory text. Therefore, the IHS has not made changes based on this comment. One commenter 28 made suggestions for changing IHS policy, including statements in IHS policy about the impact of State law on IHS activities, but recognizes that these policy matters are separate from this rulemaking. The 25 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0002, https://www.regulations.gov/ comment/IHS-2024-0001-0002. 26 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0002, https://www.regulations.gov/ comment/IHS-2024-0001-0002. 27 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0005, https://www.regulations.gov/ comment/IHS-2024-0001-0005. 28 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0002, https://www.regulations.gov/ comment/IHS-2024-0001-0002. VerDate Sep<11>2014 16:24 Apr 29, 2024 Jkt 262001 IHS also considers these comments outside of the scope of the rulemaking, and therefore has not made changes based on that discussion. Another commenter 29 stated that the IHS failed to conduct a federalism analysis pursuant to Executive Order 13132, suggesting that IHS clarify whether ‘‘its regulations can preempt state law and, if so, address the federalism implications of its rule.’’ The IHS complied with the requirements of Executive Order 13132.30 Removing these outdated and unnecessary regulations does not impose a substantial direct requirement or cost on State or local governments, as they apply only to IHS operations as a healthcare provider and payer. This action to remove outdated and unnecessary regulations does not have any preemptive effect. Therefore, the IHS has not made changes based on this comment. Two commenters 31 stated that the IHS should focus its efforts on services for victims of sexual assault, and improving maternal and infant health, instead of removing the outdated rules. The IHS notes that it has a detailed Sexual Assault policy and a robust Maternal and Child Health Program, which will not be affected by the removal of the outdated regulations. The comment is thus outside of the scope of this action, which merely removes outdated and unnecessary regulations. Therefore, the IHS has not made changes based on these comments. E. Required Determinations Executive Orders 12866, 13563, and 14094 Executive Order 12866, as amended by Executive Order 14094, and Executive Order 13563 direct agencies to assess all costs and benefits of available regulatory alternatives. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a ‘‘significant regulatory action’’ as any regulatory action that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of the Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product); or adversely affect in a material way the economy, a sector of 29 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0006, https://www.regulations.gov/ comment/IHS-2024-0001-0006. 30 See 89 FR 897–98. 31 Docket ID # IHS–2024–0001, Comment ID # IHS–2024–0001–0002, https://www.regulations.gov/ comment/IHS-2024-0001-0002; Comment ID # IHS– 2024–0001–0006, https://www.regulations.gov/ comment/IHS-2024-0001-0006. PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 34147 the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President’s priorities or the principles set forth in the Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case. OIRA has determined that this final rule is a significant regulatory action as defined by Executive Order 12866, section 3(f). Regulatory Flexibility Act This action will not have a significant economic impact on Indian health programs. Therefore, the regulatory flexibility analysis provided for under the Regulatory Flexibility Act is not required. Executive Order 13132 (Federalism) Executive Order 13132, ‘‘Federalism,’’ establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments or has federalism implications. HHS has determined that this final rule, which removes outdated regulations, does not impose such costs or have any federalism implications. Executive Order 13175 This rule does not have a substantial direct effect on one or more Indian Tribes under Executive Order 13175, because it only removes outdated regulations that do not align with the current statutory text of the Hyde Amendment, with 25 U.S.C. 1676, or with current IHS practice. National Environmental Policy Act HHS has determined that this final rule does not have a significant impact on the environment. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires the IHS to consider the impact of paperwork and other information collection burdens it imposes on the public. The IHS has determined no new requirement for information collection is associated with this final rule. This action does not affect any information collections. E:\FR\FM\30APR1.SGM 30APR1 34148 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations Congressional Review Act Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act, 5 U.S.C 801 et seq.), OIRA has determined that this rule does not meet the criteria set forth in 5 U.S.C. 804(2). Unfunded Mandates Reform Act of 1995 We have examined the impacts of this rule as required by section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA; March 22, 1995; Pub. L. 104– 4). Section 202 of UMRA requires that a covered agency prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted for inflation). In 2024, that threshold is approximately $183 million (in 2023 dollars). If a covered agency must prepare a budgetary impact statement, section 205 further requires that it select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with the statutory requirements. In addition, section 203 requires a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. Based on information currently available, we expect the combined impact on State, local, or Tribal governments and the private sector does not meet the UMRA definition of unfunded mandate. List of Subjects in 42 CFR Part 136 Employment, Government procurement, Healthcare, Health facilities, Indians, Penalties, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Department of Health and Human Services amends 42 CFR part 136 as follows: PART 136—INDIAN HEALTH 1. The authority citation for part 136 continues to read as follows: lotter on DSK11XQN23PROD with RULES1 ■ Authority: 25 U.S.C. 13; sec. 3, 68 Stat. 674 (42 U.S.C., 2001, 2003); Sec. 1, 42 Stat. 208 (25 U.S.C. 13); 42 U.S.C. 2001, unless otherwise noted. Subpart F—[Removed and Reserved] 2. Remove and reserve subpart F, consisting of §§ 136.51 through 136.57. ■ VerDate Sep<11>2014 16:24 Apr 29, 2024 Jkt 262001 Dated: April 24, 2024. Xavier Becerra, Secretary, Department of Health and Human Services. [FR Doc. 2024–09152 Filed 4–29–24; 8:45 am] BILLING CODE 4166–14–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, 9, and 25 [GN Docket No. 23–65, IB Docket No. 22– 271; FCC 24–28; FR ID 210313] Single Network Future: Supplemental Coverage From Space; Space Innovation Federal Communications Commission. ACTION: Final rule. AGENCY: In this document, the Federal Communications Commission (FCC or Commission) adopts rules to facilitate the deployment of supplemental coverage from space (SCS) in an effort to serve several important public interest goals for the Nation and expand the reach of communications services, particularly emergency services, so that connectivity and assistance is available in more remote places. In this document, to allow satellite communications on spectrum previously allocated only to terrestrial services, the Commission modifies the United States Table of Frequency Allocations to authorize bi-directional, secondary mobile-satellite service operations in certain spectrum bands that have no primary, non-flexible-use legacy incumbents, Federal or nonFederal. For these bands, we authorize SCS only where one or more terrestrial licensees—together holding all licenses on the relevant channel throughout a defined geographically independent area—lease access to their spectrum rights to a participating satellite operator, whose license reflects these frequencies and the geographically independent area in which they will offer SCS. In recognition that this new offering has the potential to bring lifesaving connectivity to remote areas, the Commission also applies interim 911 call and text routing requirements to ensure that help is available to those who need it today while we work toward enabling automatic locationbased routing of all emergency communications whether or not there is a terrestrial connection available. DATES: The rules are effective May 30, 2024, except for the amendments to §§ 1.9047(d)(2) (amendatory instruction SUMMARY: PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 3), 9.10(t)(3) through (5) (amendatory instruction 8), and 25.125(b)(1) and (2) and (c) (amendatory instruction 16), which are indefinitely delayed. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date of these rule sections. For additional information on this proceeding, contact Jon Markman of the Mobility Division, Wireless Telecommunications Bureau, at Jonathan.Markman@fcc.gov or (202) 418–7090, or Merissa Velez of the Space Bureau Satellite Programs and Policy Division, at Merissa.Velez@fcc.gov or (202) 418–0751. For information regarding the Paperwork Reduction Act of 1995 (PRA) information collection requirements contained in this document, contact Cathy Williams, Office of Managing Director, at (202) 418–2918 or Cathy.Williams@fcc.gov. FOR FURTHER INFORMATION CONTACT: This is a summary of Commission’s Report and Order, in GN Docket No. 23–65 and IB Docket No. 22–271; FCC 24–28, adopted and released on March 15, 2024. The full text of this document is available for public inspection online at https:// docs.fcc.gov/public/attachments/FCC24-28A1.pdf. The Report and Order was corrected by an erratum released on April 18, 2024. The changes made by the erratum are included in this document. SUPPLEMENTARY INFORMATION: Synopsis 1. In the Report and Order, the Commission adopts a regulatory framework—the first of its kind in the world—to enable collaborations between satellite operators and terrestrial service providers to offer ubiquitous connectivity directly to consumer handsets using spectrum previously allocated only to terrestrial service. We anticipate that supplemental coverage from space, or SCS, will enable consumers in areas not covered by terrestrial networks to be connected using their existing devices via satellite-based communications. 2. In the Report and Order, to allow satellite communications on spectrum previously allocated only to terrestrial services, the Commission modifies the United States Table of Frequency Allocations to authorize bi-directional, secondary mobile-satellite service (MSS) operations in certain spectrum bands that have no primary, non-flexible-use legacy incumbents, Federal or nonFederal. Accordingly, the list of bands that will be available for the provision of SCS (the SCS Bands) is as follows: E:\FR\FM\30APR1.SGM 30APR1

Agencies

[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34144-34148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09152]


=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Indian Health Service

42 CFR Part 136

RIN 0917-AA24


Removal of Outdated Regulations

AGENCY: Indian Health Service, Department of Health and Human Services.

ACTION: Final rule.

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SUMMARY: The Indian Health Service (IHS) of the Department of Health 
and Human Services (HHS or ``the Department'') is issuing this final 
rule to remove outdated regulations that do not align with the current 
statutory text.

DATES: This final rule is effective May 30, 2024.

FOR FURTHER INFORMATION CONTACT: Joshuah Marshall, Senior Advisor to 
the Director, Indian Health Service, 5600 Fishers Lane, Rockville, MD 
20857, email: [email protected], telephone: 301-443-7252.

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 27, 1982, the IHS published regulations imposing 
restrictions on the use of Federal funding for certain abortions, 
currently codified at 42 CFR 136.51 through 136.57.\1\ These 
regulations implementing IHS program authority pursuant to 25 U.S.C. 13 
and 42 U.S.C. 2001 allowed the use of IHS funds for abortions only when 
a physician certified that ``the life of the mother would be endangered 
if the fetus were carried to term.'' This restriction was to be 
consistent with a provision in the annual appropriations legislation 
for the Departments of Labor, Health and Human Services, and Education, 
sometimes referred to as the ``Hyde Amendment,'' that restricted the 
use of Federal funds for certain abortions, which did not automatically 
apply to IHS funding.\2\ The purpose of these IHS regulations was 
specifically ``to conform IHS practice to that of the rest of the 
Department [of Health and Human Services] in accordance with the 
applicable congressional guidelines.'' \3\ In 1988, Congress enacted 25 
U.S.C. 1676, explicitly extending any limitations on the use of funds 
included in HHS appropriations laws with respect to the performance of 
abortions to apply to funds appropriated to IHS. As such, IHS became 
subject to the Hyde Amendment as included in annual appropriations 
legislation.
---------------------------------------------------------------------------

    \1\ Final Rule, Provision of Abortion Services by the Indian 
Health Service, 47 FR 4016 (Jan. 27, 1982).
    \2\ Continuing Appropriations for FY 1981, Public Law 96-369 
(1980); Continuing Appropriations Act for FY 1982, Public Law 97-92 
(1981).
    \3\ Final Rule, Provision of Abortion Services by the Indian 
Health Service, 47 FR 4016 (Jan. 27, 1982).
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    Since the IHS promulgated these regulations in 1982, Congress has 
repeatedly revised annual restrictions related to the use of Federal 
funds for certain abortions. In fiscal year 1994, for instance, 
Congress revised the Hyde Amendment to include additional exceptions to 
the general prohibition on the use of Federal funds for abortions, 
including in instances in which a pregnancy is the result of an act of 
rape or incest.\4\ Similarly, in fiscal year 1998, Congress also 
altered the standards for when the ``life of the mother'' may be 
considered an exception.\5\ As relevant here, the Hyde Amendment 
currently provides that no covered funds ``shall be expended for any 
abortion'' or ``for health benefits coverage that includes coverage of 
abortion,'' except ``if the pregnancy is the result of an act of rape 
or incest; or . . . in the case where a woman suffers from a physical 
disorder, physical injury, or physical illness, including a life-
endangering physical condition caused by or arising from the pregnancy 
itself, that would, as certified by a physician, place the woman in 
danger of death unless an abortion is performed.'' \6\
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    \4\ Departments of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriations Act, 1994, Public Law 
103-112, 509, 107 Stat. 1082, 1113 (1993).
    \5\ Departments of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriations Act, 1998, Public Law 
105-78, 509(b), 111 Stat. 1467, 1516 (1997).
    \6\ Departments of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriations Act, 2024, Public Law 
118-47, secs. 506-507, title V of Division D, 138 Stat. 703 (2024).
---------------------------------------------------------------------------

    The current IHS regulations do not align with the current text of 
the Hyde Amendment or with 25 U.S.C. 1676. The IHS has complied with, 
and will continue to comply with, the statutory exceptions; has 
clarified its compliance with the statutory limitations through policy 
directives; \7\ and now removes these outdated regulations in their 
entirety.\8\ Doing so will eliminate any potential confusion regarding 
these outdated regulations and will ensure alignment with the 
applicable congressional restrictions governing HHS given Congress's 
enactment of 25 U.S.C. 1676, which independently aligns relevant 
restrictions applicable to the IHS and HHS. Regulations on this subject 
are not necessary to implement the IHS's authority. Nor are they 
necessary to comply with statutory directives. Moreover, amending the 
regulations to reflect the current Hyde Amendment could cause 
additional confusion in the future if Congress changes the annual 
appropriations language, as it has in the past.
---------------------------------------------------------------------------

    \7\ Indian Health Service Circular No. 22-15, Use of Indian 
Health Service Funds for Abortions (Jun. 30, 2022), https://www.ihs.gov/ihm/circulars/2022/use-of-indian-health-service-funds-for-abortions/.
    \8\ The regulations also speak to recordkeeping requirements and 
confidentiality of information. However, these provisions are 
unnecessary to maintain, because recordkeeping and confidentiality 
of information are independently required by other laws and 
regulations that will remain in effect. See, e.g., 45 CFR parts 160, 
164 (Standards for Privacy of Individually Identifiable Health 
Information (The Privacy Rule)).
---------------------------------------------------------------------------

II. Development of Rule

    The IHS published a notice of proposed rulemaking in the Federal 
Register on January 8, 2024 (89 FR 896), with a sixty-day comment 
period, which closed on March 8, 2024. Notification regarding a Tribal 
consultation session was sent via a Dear Tribal Leader Letter on 
January 17, 2024. The consultation session was conducted virtually on 
February 27, 2024. The IHS has reviewed public comments it received and 
addresses them below.

III. Comments

    The IHS received six written comments.\9\ Two of the written 
comments were generally in favor of the removal. These two written 
comments were submitted by: (1) an individual and (2) a group of 20 
individuals and advocacy organizations. Four of the written comments 
were generally opposed to the removal. These four comments were 
submitted by advocacy organizations. At the Tribal Consultation 
session, the IHS received three oral comments from representatives of 
Indian Tribes. Each of these three oral comments were generally in 
favor of the removal or non-germane to the removal.
---------------------------------------------------------------------------

    \9\ See generally, public comments posted in response to Docket 
ID # IHS-2024-0001, https://www.regulations.gov/document/IHS-2024-0001-0001/comment.
---------------------------------------------------------------------------

    After reviewing both written comments and those comments received 
orally through the Tribal consultation session, the IHS is finalizing 
this rule as proposed. Accordingly, this final rule will remove the 
current IHS Hyde regulations in their entirety, by removing and 
reserving subpart F, consisting of 42 CFR 136.51 through 136.57. Below, 
IHS summarizes and

[[Page 34145]]

addresses all substantive topics raised in comments.

A. Comments Supporting the Removal

    One commenter in the consultation session supported removal of the 
regulations. That commenter additionally suggested as a policy matter 
that the IHS consider allowing a nurse practitioner or licensed 
practitioner other than a physician to certify an abortion in cases in 
which certification is required. Under the current version of the Hyde 
Amendment, the IHS cannot make the requested change.
    The current version of the Hyde Amendment, made applicable to IHS 
funding by 25 U.S.C. 1676(a), includes an exception in cases ``where a 
woman suffers from a physical disorder, physical injury, or physical 
illness, including a life-endangering physical condition caused by or 
arising from the pregnancy itself, that would, as certified by a 
physician, place the woman in danger of death unless an abortion is 
performed.'' Departments of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriations Act, 2024, Public Law 
118-47, secs. 506-507, title V of Division D, 138 Stat. 703 (2024) 
(emphasis added). The IHS' removal of the outdated regulations cannot 
affect the separate statutory requirement that the certification be 
made by a physician. Therefore, the IHS has not made changes based on 
this comment.
    Another commenter in the consultation session supported removal of 
the regulations and asked the IHS whether it intends to replace these 
regulations at a later time. While the IHS appreciates this question, 
regulations on this subject are not necessary to implement IHS' 
authority, nor are they necessary to comply with statutory directives. 
Moreover, amending the regulations to reflect the current Hyde 
Amendment could cause additional confusion in the future if Congress 
changes the annual appropriations language, as it has in the past. 
Therefore, the IHS has not made changes based on this comment. However, 
the IHS retains the discretion to promulgate regulations at a later 
date.
    The IHS received an additional comment during the consultation 
session about what Tribes are permitted to do with their own, non-
Federal funds. While the IHS appreciates the comment, it is outside the 
scope of this action. The regulations at issue apply only to IHS' 
operations as a healthcare provider and payer. Therefore, the IHS has 
not made changes based on this comment.
    One commenter \10\ supported removal of the regulations, based on 
the justifications provided in the notice of proposed rulemaking. The 
commenter opined that it was common sense to eliminate the regulations, 
since the IHS is required by 25 U.S.C. 1676 to follow the Hyde 
Amendment. The commenter also believes that removal would reduce 
confusion. In addition to agreeing with the justifications provided in 
the notice of proposed rulemaking, this commenter explained that the 
outdated regulations could lead to violations of the Equal Protection 
Clause of the Constitution if enforced. The commenter argued that if 
the regulation were enforced, American Indian and Alaska Native (AI/AN) 
people seeking abortions funded by the IHS would be treated differently 
than other individuals seeking abortions funded by HHS in other 
circumstances because only the second group would be able to take 
advantage of all of the exceptions included in the current Hyde 
Amendment. This comment requires no change to the proposed rule.
---------------------------------------------------------------------------

    \10\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0003, 
https://www.regulations.gov/comment/IHS-2024-0001-0003.
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    One comment,\11\ submitted on behalf of a group of individuals, 
supported the removal but recommended that the IHS address disparate 
reproductive health outcomes for AI/AN people, including in urban 
areas, through activities outside of this rulemaking. The comment also 
recommended that the IHS improve its capacity for abortions consistent 
with the Hyde Amendment, and provide additional information, education, 
and engagement with AI/AN people about permitted abortions. This 
comment also discussed the commenters' opposition to the scope and 
impact of the Hyde Amendment itself. These comments are outside of the 
scope of the rulemaking.
---------------------------------------------------------------------------

    \11\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0007, 
https://www.regulations.gov/comment/IHS-2024-0001-0007.
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B. Comments Recommending Retaining the Regulations as Written

    Several commenters asked that the IHS retain the regulations as 
written, specifically 42 CFR 136.53 and 136.54 (the two sections that 
describe the limitations on the use of IHS funding for abortions). 
These commenters stated that the Hyde Amendment does not require, only 
permits, the use of IHS funding for abortion in cases of rape or 
incest. Therefore, the commenters opined that the IHS regulations are 
not outdated or in conflict with the current law, and also expressed 
their belief that abortions should not be provided when a pregnancy is 
the result of rape or incest. One commenter \12\ also expressed concern 
that, should the Hyde Amendment not be included in the annual 
appropriations act and these regulations are removed, the IHS would be 
able to further expand access to abortions.
---------------------------------------------------------------------------

    \12\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0005, 
https://www.regulations.gov/comment/IHS-2024-0001-0005.
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    Congress has intentionally broadened the exceptions to the 
limitation on the use of Federal funds for abortion to include 
instances of rape or incest, and has specifically made the current 
scope of the Hyde Amendment applicable to IHS, via 25 U.S.C. 1676(a). 
Removing the outdated and unnecessary provisions of 42 CFR 136.53 and 
136.54 simply aligns IHS regulations with congressional action. 
Comments about the substance and application of the Hyde Amendment 
itself are outside of the scope of this rulemaking.
    Should Federal law regarding the use of Federal funds for abortion 
change in the future, the IHS could consider whether regulatory 
provisions should be proposed. But this final rule will ensure that the 
IHS follows applicable statutory provisions at any given time. 
Therefore, the IHS has not made changes based on these comments.
    Two commenters \13\ stated that removing the regulations is 
inconsistent with the IHS mission and authority under the Snyder Act, 
25 U.S.C. 13, to provide care and assistance for the ``conservation of 
health,'' claiming that providing abortions in the case of rape or 
incest is not healthcare, and that abortion in general does not 
conserve the health of the fetus. The IHS has determined that removing 
42 CFR 136.53 and 136.54 clearly aligns with congressional action, and 
this regulatory action simply removes outdated and unnecessary 
regulations. Comments about the substance and application of the Hyde 
Amendment itself are outside of the scope of this rulemaking. 
Therefore, the IHS has not made changes based on these comments.
---------------------------------------------------------------------------

    \13\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0005, 
https://www.regulations.gov/comment/IHS-2024-0001-0005, Comment ID # 
IHS-2024-0001-0006, https://www.regulations.gov/comment/IHS-2024-0001-0006.
---------------------------------------------------------------------------

    One commenter \14\ stated that providing abortions in the cases of 
rape or incest is not consistent with the trust relationship between 
the Federal Government and Tribes, and asserted that it infringes on 
Tribal sovereignty. The IHS has determined that removing 42 CFR 136.53 
and 136.54 clearly aligns with congressional action, and this

[[Page 34146]]

regulatory action simply removes outdated and unnecessary regulations. 
Comments about the substance of the Hyde Amendment itself are outside 
of the scope of this rulemaking. The use of IHS funds for certain 
abortions does not infringe on Tribal sovereignty. The IHS' clinicians 
and patients work together to determine the most appropriate treatment 
in an individual case. Moreover, this action does not affect a Tribe's 
right to self-determination or self-governance, nor does it impact any 
Tribe's choice to administer IHS health care programs itself. This 
action applies only to IHS operations as a healthcare provider and 
payer. The current regulations also do not reflect a determination that 
considerations surrounding Tribal sovereignty or the trust relationship 
forecloses funding for abortions in cases of rape or incest. See 46 FR 
22617; 47 FR 4017-18. Therefore, the IHS has not made changes based on 
this comment.
---------------------------------------------------------------------------

    \14\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0005, 
https://www.regulations.gov/comment/IHS-2024-0001-0005.
---------------------------------------------------------------------------

    One commenter \15\ suggested that an exception to provide abortions 
in the cases of rape or incest is inappropriate. Removing the outdated 
regulations, however, would merely align IHS policy, via 25 U.S.C. 
1676, with whatever limitations Congress has imposed at any given time, 
and with that of the rest of HHS. Comments about the substance of the 
Hyde Amendment itself are outside of the scope of this rulemaking. 
Therefore, the IHS has not made changes based on this comment.
---------------------------------------------------------------------------

    \15\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0006, 
https://www.regulations.gov/comment/IHS-2024-0001-0006.
---------------------------------------------------------------------------

    C. Comments recommending amending the regulations
    Several commenters suggested, as an alternative to retaining the 
regulations as written, that the IHS consider amending 42 CFR 136.54. 
Two commenters \16\ suggested amending 42 CFR 136.54 to align with the 
Hyde Amendment. One of these commenters \17\ recommended options to 
incorporate a reference to the Hyde Amendment, or to include a 
qualifier that, if the limitations in the Hyde Amendment change, the 
regulations will as well, or to cross reference the Hyde Amendment 
without describing the exceptions currently contained in that language. 
One of these commenters \18\ explained its view that removing the 
regulations would cause more confusion to providers, and described 
problematic historical practices as an example of why clear IHS rules 
are needed. The IHS finds that these recommendations would merely 
restate Federal law, and are therefore unnecessary. The IHS disagrees 
that removal will cause more confusion. To the contrary, amending the 
regulations to reflect the current Hyde Amendment could cause 
additional confusion in the future if Congress changes the annual 
appropriations language, as it has in the past. Since 25 U.S.C. 1676 
already applies the Hyde Amendment to IHS by law, regulations 
reflecting the Hyde Amendment are superfluous. The IHS has also 
clarified its compliance with the statutory limitations through policy 
directives and will continue to provide clear guidance to its staff. 
Therefore, the IHS has not made changes based on these comments.
---------------------------------------------------------------------------

    \16\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0004, 
https://www.regulations.gov/comment/IHS-2024-0001-0004; Comment ID # 
IHS-2024-0001-0006, https://www.regulations.gov/comment/IHS-2024-0001-0006.
    \17\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0006, 
https://www.regulations.gov/comment/IHS-2024-0001-0006.
    \18\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0004, 
https://www.regulations.gov/comment/IHS-2024-0001-0004.
---------------------------------------------------------------------------

    One commenter \19\ recommended amending 42 CFR 136.54 to state that 
Federal funds are available when a physician has found and certified 
that, on the basis of his or her professional judgment, ``a statutory 
condition for such funding, referenced in 25 U.S.C. 1676, is 
satisfied.'' The IHS does not view this change as necessary, since 25 
U.S.C. 1676 is applicable to the IHS as a matter of law. In addition, 
the language recommended by the commenter is unclear, because there are 
no statutory conditions in 25 U.S.C. 1676 itself. This statute instead 
applies certain other Federal limitations on the use of funds for the 
performance of abortions to the IHS. Therefore, the IHS has not made 
changes based on this comment.
---------------------------------------------------------------------------

    \19\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0002, 
https://www.regulations.gov/comment/IHS-2024-0001-0002.
---------------------------------------------------------------------------

    One commenter \20\ stated that the IHS must publish a supplemental 
notice of proposed rulemaking to explain why it is removing and not 
replacing the regulations. The IHS clearly outlined its reasoning for 
removing the regulations in the proposed rule.\21\ Therefore, the IHS 
has not made changes based on this comment.
---------------------------------------------------------------------------

    \20\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0004, 
https://www.regulations.gov/comment/IHS-2024-0001-0004.
    \21\ 89 FR 896 at 897.
---------------------------------------------------------------------------

    One commenter \22\ also offered edits to 42 CFR 136.55 (``Drugs and 
devices and termination of ectopic pregnancies'') to suggest that 
Federal funds cannot be used for some treatments for ectopic pregnancy. 
The IHS does not agree and, consistent with these regulations that are 
now being withdrawn, reaffirms the policy stated in current 42 CFR 
136.55 that Federal funds are available for medical procedures 
necessary for the termination of an ectopic pregnancy. The IHS has 
existing broad authority under 25 U.S.C. 13 and 42 U.S.C. 2001 to 
provide healthcare. Accordingly, a regulation stating that funds are 
available for medical treatments for ectopic pregnancy is unnecessary 
and the IHS has not made changes based on this comment.
---------------------------------------------------------------------------

    \22\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0002, 
https://www.regulations.gov/comment/IHS-2024-0001-0002.
---------------------------------------------------------------------------

    One commenter \23\ stated that the certification requirement in 42 
CFR 136.54 should be retained, even if other portions were changed or 
moved, to ensure compliance with Congress's funding limitations. The 
IHS believes retaining this section of the regulation is unnecessary. 
The language in the Hyde Amendment, already made applicable to the IHS 
via 25 U.S.C. 1676(a), currently contains a physician certification 
requirement. Retaining that language in the regulation could cause 
confusion in the future if Congress changes the annual appropriations 
language, as it has in the past. Therefore, the IHS has not made 
changes based on this comment.
---------------------------------------------------------------------------

    \23\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0002, 
https://www.regulations.gov/comment/IHS-2024-0001-0002.
---------------------------------------------------------------------------

    Some commenters also stated that the remaining sections in subpart 
F should be retained. These commenters stated that the IHS did not 
provide justification as to why it was removing the entire section, and 
not just 42 CFR 136.54. As stated in the notice of proposed 
rulemaking,\24\ the sections on recordkeeping and confidentiality of 
information (42 CFR 136.56, 136.57) are unnecessary to maintain because 
these requirements are independently required by other laws and 
regulations that will remain in effect. See, e.g., 45 CFR parts 160, 
164 (Standards for Privacy of Individually Identifiable Health 
Information (The Privacy Rule)); 44 U.S.C. 31 (The Federal Records 
Act).
---------------------------------------------------------------------------

    \24\ 89 FR 897.
---------------------------------------------------------------------------

    Other commenters similarly requested that the sections on 
recordkeeping and confidentiality of information be maintained, stating 
that doing so would ensure accountability, confidentiality, and patient 
safety. The IHS agrees that recordkeeping and confidentiality 
requirements serve those important purposes. However, the IHS has 
sufficient safeguards in place for recordkeeping already required by 
other

[[Page 34147]]

Federal laws and regulations, and therefore retaining these regulations 
is unnecessary. The definition of ``physician'' in 42 CFR 136.52 is 
also unnecessary as the meaning of ``physician'' is well-established in 
practice and law. See, e.g., 42 U.S.C. 1395x(r).
    As acknowledged by a different commenter,\25\ certain sections 
(Sec. Sec.  136.51 (``Applicability''), 136.53 (``General rule'')) only 
exist in relation to other sections of subpart F, and thus are 
superfluous upon the removal of 42 CFR 136.54. Finally, the IHS has 
existing broad authority under 25 U.S.C. 13 and 42 U.S.C. 2001 to 
provide healthcare; accordingly, and as described above, 42 CFR 136.55 
is unnecessary. Therefore, the IHS has not made changes based on these 
comments.
---------------------------------------------------------------------------

    \25\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0002, 
https://www.regulations.gov/comment/IHS-2024-0001-0002.
---------------------------------------------------------------------------

D. Other Comments

    One commenter \26\ stated that, as a policy matter, the IHS should 
not use Federal funds for drugs or devices to prevent implantation of 
the fertilized ovum. The IHS disagrees with this assertion and the 
removal of 42 CFR 136.55 makes no changes to IHS' existing authority to 
use Federal funds for the purposes described in the regulatory language 
being removed. The IHS' broad authority under 25 U.S.C. 13 and 42 
U.S.C. 2001 authorizes the IHS to use Federal funds for necessary 
medical care such as contraception and therefore the IHS does not 
accept the commenter's policy suggestion to limit the use of funds for 
this purpose. Therefore, the IHS has not made changes based on this 
comment.
---------------------------------------------------------------------------

    \26\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0002, 
https://www.regulations.gov/comment/IHS-2024-0001-0002.
---------------------------------------------------------------------------

    One commenter \27\ explained its view that abortion harms AI/AN 
people, and recounted some of the history of maltreatment of AI/ANs. 
These comments are outside of the scope of this action, which merely 
aligns IHS regulation with statutory text. Therefore, the IHS has not 
made changes based on this comment.
---------------------------------------------------------------------------

    \27\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0005, 
https://www.regulations.gov/comment/IHS-2024-0001-0005.
---------------------------------------------------------------------------

    One commenter \28\ made suggestions for changing IHS policy, 
including statements in IHS policy about the impact of State law on IHS 
activities, but recognizes that these policy matters are separate from 
this rulemaking. The IHS also considers these comments outside of the 
scope of the rulemaking, and therefore has not made changes based on 
that discussion.
---------------------------------------------------------------------------

    \28\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0002, 
https://www.regulations.gov/comment/IHS-2024-0001-0002.
---------------------------------------------------------------------------

    Another commenter \29\ stated that the IHS failed to conduct a 
federalism analysis pursuant to Executive Order 13132, suggesting that 
IHS clarify whether ``its regulations can preempt state law and, if so, 
address the federalism implications of its rule.'' The IHS complied 
with the requirements of Executive Order 13132.\30\ Removing these 
outdated and unnecessary regulations does not impose a substantial 
direct requirement or cost on State or local governments, as they apply 
only to IHS operations as a healthcare provider and payer. This action 
to remove outdated and unnecessary regulations does not have any 
preemptive effect. Therefore, the IHS has not made changes based on 
this comment.
---------------------------------------------------------------------------

    \29\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0006, 
https://www.regulations.gov/comment/IHS-2024-0001-0006.
    \30\ See 89 FR 897-98.
---------------------------------------------------------------------------

    Two commenters \31\ stated that the IHS should focus its efforts on 
services for victims of sexual assault, and improving maternal and 
infant health, instead of removing the outdated rules. The IHS notes 
that it has a detailed Sexual Assault policy and a robust Maternal and 
Child Health Program, which will not be affected by the removal of the 
outdated regulations. The comment is thus outside of the scope of this 
action, which merely removes outdated and unnecessary regulations. 
Therefore, the IHS has not made changes based on these comments.
---------------------------------------------------------------------------

    \31\ Docket ID # IHS-2024-0001, Comment ID # IHS-2024-0001-0002, 
https://www.regulations.gov/comment/IHS-2024-0001-0002; Comment ID # 
IHS-2024-0001-0006, https://www.regulations.gov/comment/IHS-2024-0001-0006.
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E. Required Determinations

Executive Orders 12866, 13563, and 14094

    Executive Order 12866, as amended by Executive Order 14094, and 
Executive Order 13563 direct agencies to assess all costs and benefits 
of available regulatory alternatives. Section 3(f) of Executive Order 
12866, as amended by Executive Order 14094, defines a ``significant 
regulatory action'' as any regulatory action that is likely to result 
in a rule that may: (1) have an annual effect on the economy of $200 
million or more (adjusted every 3 years by the Administrator of the 
Office of Information and Regulatory Affairs (OIRA) for changes in 
gross domestic product); or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, territorial, or 
Tribal governments or communities; (2) create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency; (3) materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raise legal or policy issues for which 
centralized review would meaningfully further the President's 
priorities or the principles set forth in the Executive order, as 
specifically authorized in a timely manner by the Administrator of OIRA 
in each case. OIRA has determined that this final rule is a significant 
regulatory action as defined by Executive Order 12866, section 3(f).

Regulatory Flexibility Act

    This action will not have a significant economic impact on Indian 
health programs. Therefore, the regulatory flexibility analysis 
provided for under the Regulatory Flexibility Act is not required.

Executive Order 13132 (Federalism)

    Executive Order 13132, ``Federalism,'' establishes certain 
requirements that an agency must meet when it promulgates a rule that 
imposes substantial direct requirement costs on State and local 
governments or has federalism implications. HHS has determined that 
this final rule, which removes outdated regulations, does not impose 
such costs or have any federalism implications.

Executive Order 13175

    This rule does not have a substantial direct effect on one or more 
Indian Tribes under Executive Order 13175, because it only removes 
outdated regulations that do not align with the current statutory text 
of the Hyde Amendment, with 25 U.S.C. 1676, or with current IHS 
practice.

National Environmental Policy Act

    HHS has determined that this final rule does not have a significant 
impact on the environment.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
the IHS to consider the impact of paperwork and other information 
collection burdens it imposes on the public. The IHS has determined no 
new requirement for information collection is associated with this 
final rule. This action does not affect any information collections.

[[Page 34148]]

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (also known as the Congressional Review Act, 5 
U.S.C 801 et seq.), OIRA has determined that this rule does not meet 
the criteria set forth in 5 U.S.C. 804(2).

Unfunded Mandates Reform Act of 1995

    We have examined the impacts of this rule as required by section 
202 of the Unfunded Mandates Reform Act of 1995 (UMRA; March 22, 1995; 
Pub. L. 104-4). Section 202 of UMRA requires that a covered agency 
prepare a budgetary impact statement before promulgating a rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year (adjusted for 
inflation). In 2024, that threshold is approximately $183 million (in 
2023 dollars). If a covered agency must prepare a budgetary impact 
statement, section 205 further requires that it select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with the statutory requirements. In 
addition, section 203 requires a plan for informing and advising any 
small governments that may be significantly or uniquely impacted by the 
rule. Based on information currently available, we expect the combined 
impact on State, local, or Tribal governments and the private sector 
does not meet the UMRA definition of unfunded mandate.

List of Subjects in 42 CFR Part 136

    Employment, Government procurement, Healthcare, Health facilities, 
Indians, Penalties, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Department of Health 
and Human Services amends 42 CFR part 136 as follows:

PART 136--INDIAN HEALTH

0
1. The authority citation for part 136 continues to read as follows:

    Authority:  25 U.S.C. 13; sec. 3, 68 Stat. 674 (42 U.S.C., 2001, 
2003); Sec. 1, 42 Stat. 208 (25 U.S.C. 13); 42 U.S.C. 2001, unless 
otherwise noted.

Subpart F--[Removed and Reserved]

0
2. Remove and reserve subpart F, consisting of Sec. Sec.  136.51 
through 136.57.

    Dated: April 24, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-09152 Filed 4-29-24; 8:45 am]
BILLING CODE 4166-14-P

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