[Federal Register Volume 89, Number 5 (Monday, January 8, 2024)]
[Proposed Rules]
[Pages 896-898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28948]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Indian Health Service

[Docket No.: IHS-FRDOC-0001]

42 CFR Part 136

RIN 0917-AA24


Removal of Outdated Regulations

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

ACTION: Notice of Proposed Rulemaking.

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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 Notice 
of Proposed Rulemaking (NPRM) proposing the removal of regulations 
appearing in the Code of Federal Regulations (CFR). These outdated 
regulations do not align with the current statutory text.

DATES: Comments due on or before March 8, 2024.

ADDRESSES: You may submit comments to this proposed rule, identified by 
RIN 0917-AA24 by any of the following methods:
     Federal eRulemaking Portal. You may submit electronic 
comments at https://www.regulations.gov by searching for the Docket ID 
number IHS-FRDOC-0001. Follow the instructions https://www.regulations.gov online for submitting comments through this method.
     Regular, Express, or Overnight Mail: You may mail comments 
to Indian Health Service, Joshuah Marshall, Senior Advisor to the 
Director, Indian Health Service, 5600 Fishers Lane, Rockville, MD 
20857, email: [email protected].
    All comments received by the methods and due date specified above 
will be posted without change to content to https://www.regulations.gov, including any personal information provided about 
the commenter, and such posting may occur before or after the closing 
of the comment period. Comments that make threats to individuals or 
institutions or suggest that the individual will take harmful actions 
will not be posted.
    Docket: For complete access to background documents, posted 
comments, and the plain-language summary of the proposed rule of not

[[Page 897]]

more than 100 words in length required by the Providing Accountability 
Through Transparency Act of 2023, go to https://www.regulations.gov and 
search for Docket ID number IHS-FRDOC-0001.

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

SUPPLEMENTARY INFORMATION: 

Background

    On January 27, 1982, IHS published regulations imposing 
restrictions on use of Federal funding for certain abortions, currently 
codified at 42 CFR 136.51-.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.
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    \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\ 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, 2023, Public Law 
117-328, 506-507, 136 Stat. 4459, 4908 (2022); Continuing 
Appropriations Act, 2024 and Other Extensions Act, Public Law 118-15 
(2023).
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    The current IHS regulation does 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 and has 
clarified its compliance with the statutory limitations through policy 
directives,\7\ and now seeks to remove these outdated regulations in 
their entirety.\8\ Doing so will eliminate any potential confusion 
regarding the legal effect of these outdated regulations and will also 
achieve the goal of aligning IHS guidelines with the applicable 
Congressional guidelines governing HHS. These regulations are no longer 
necessary to achieve that objective, given Congress's enactment of 25 
U.S.C. 1676, which independently aligns relevant restrictions 
applicable to the IHS and HHS. At this time, the IHS is not proposing 
any further changes to these regulations and is not proposing to amend 
the regulations to reflect the standard set out in the current Hyde 
Amendment. 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.
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    \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)).
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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 proposed 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. This proposed rule would 
simply remove the existing, outdated regulations. HHS has determined 
that

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this proposed rule would 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 or with 25 U.S.C. 1676.

National Environmental Policy Act

    HHS had determined that this proposed rule would not have a 
significant impact on the environment.

Paperwork Reduction Act

    This action does not affect any information collections.

List of Subjects in 42 CFR Part 136

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

    For the reasons set forth in the preamble, the Department of Health 
and Human Services proposes to amend 42 CFR part 136 by removing 
Subpart F 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: December 28, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2023-28948 Filed 1-5-24; 8:45 am]
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