[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Removal of Outdated Regulations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 These outdated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
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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
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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]
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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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