The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class D airspace and establishes Class E airspace to support IFR and VFR operations at Bradshaw Army Airfield, HI.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2023-2099 in the Federal Register (88 FR 82282; November 24, 2023), proposing to modify Class D airspace and establish Class E airspace at Bradshaw Army Airfield, HI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E5 airspace designations are published in paragraphs 5000 and 6005, respectively, of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by modifying the Class D airspace and establishing Class E airspace extending upward from 700 feet above the surface at Bradshaw Army Airfield, Camp Pohakuloa, HI.

A northwest extension to the Class D lateral boundary is added to appropriately contain the point at which an arriving aircraft is expected to descend to below 1,000 feet above the surface when conducting the Area Navigation (Global Positioning System) Runway (RWY) 9 approach.

A southwest extension to the Class D lateral boundary is added to appropriately contain aircraft from the surface until reaching the next adjacent airspace when departing on the RWY 9 obstacle departure procedure.

Class E airspace extending upward from 700 feet above the surface is established within a 6-mile radius of the airport and within a westward extension to that radius to appropriately contain IFR operations below 1,500 feet above the surface and departing IFR operations until they reach 1,200 feet above the surface at the airport. This Class E airspace excludes any portion that overlaps Restricted Area-3103 when it is active.

Lastly, the Class D airspace legal description is modified. The city name on line one of the Class D legal description text header is updated to read “Camp Pohakuloa” to match the FAA's database. The airport name on line two of the Class D legal description text header is updated to read “Bradshaw Army Airfield, HI” to match the FAA's database. The geographic coordinates located on line three of the Class D legal description text header are updated to match the FAA's database. The Class D legal description body is modified to include verbiage that excludes any portion of the Class D airspace that overlaps Restricted Area-3103 when it is active. The legal description body is also updated to replace the outdated use of the phrases “Notice to Airmen” and “Airport/Facility Directory.” These phrases now read “Notice to Air Missions” and “Chart Supplement,” respectively, to align with the FAA's current nomenclature.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the Air Traffic Service (ATS) route structure as necessary to preserve the safe and efficient flow of air traffic within the NAS.

The FAA published a NPRM for Docket No. FAA-2023-1830 in the Federal Register (88 FR 68514; October 4, 2023), proposing to amend RNAV Routes Q-33 and Q-66 due to the planned Little Rock, AR (LIT), VORTAC Relocation Project and the FAA's continued NextGen efforts to provide a modern RNAV route structure. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

United States Area Navigation routes (Q-routes) are published in paragraph 2006 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending RNAV Routes Q-33 and Q-66 to support the Little Rock, AR (LIT), VORTAC Relocation Project and the NextGen program efforts. The RNAV route actions are described below.

Q-33: Prior to this final rule, Q-33 extended between the DHART, AR, Fix and the PROWL, MO, waypoint (WP). The route is extended southward to the Humble, TX (IAH), VORTAC and overlays Jet Route J-180 between the DHART Fix and the Humble VORTAC. Additionally, the Little Rock, AR (LIT), VORTAC route point is replaced with the LITTR, AR, WP and the DHART Fix route point is removed from the route description since it is no longer a route endpoint and does not reflect a turn point of one degree or more in the extended route. As amended, the route is changed to now extend between the Humble VORTAC and the PROWL WP.

Q-66: Prior to this final rule, Q-66 extended between the Little Rock, AR (LIT), VORTAC and the ALEAN, VA, WP. The Little Rock VORTAC route point is replaced with the LITTR, AR, WP and the CIVKI, AR, WP; RICKX, AR, WP; TROVE, TN, WP; BAZOO, TN, WP; and MXEEN, TN, WP are removed from the route description since they do not reflect a turn point of one degree or more in the route. As amended, the route is changed to now extend between the LITTR WP and the ALEAN WP.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of amending United States RNAV Routes Q-33 and Q-66, due to the Little Rock, AR (LIT), VORTAC Relocation Project and NextGen program efforts, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5b, which categorically excludes from further environmental impact review actions regarding establishment of jet routes and Federal airways (see 14 CFR 71.15, Designation of jet routes and VOR Federal airways) . . .”. As such, this airspace action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Air Missions (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Air Missions (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

On September 30, 2022, Treasury published a notice of proposed rulemaking (NPRM) with request for comments (87 FR 59353, September 30, 2022), proposing amendments to the regulations governing U.S. Treasury securities of the State and Local Government Series (SLGS). The proposed amendments addressed certain practices of investors in SLGS securities that Treasury considers to be an inappropriate use of the SLGS securities program. The comment period ended on November 29, 2022, and Treasury received two comment letters. After careful consideration of the comments, Treasury is now issuing a final rule.

The NPRM proposed amendments to the SLGS regulations to address impermissible uses of the SLGS program, most notably the misuse of program flexibilities by tax-advantaged entities, usually a state or local government, investing in SLGS securities to create impermissible cost-free options. The NPRM proposed amendments designed to stop such activity. Additionally, the NPRM proposed administrative changes to increase efficiencies in the program.

In the final rule, Treasury is adopting all but one of the proposed amendments. In response to the public comments, Treasury is providing additional detail and clarification herein.

The following discussion provides background on previous related rulemakings, explains the NPRM's proposed amendments, addresses the public comments on those proposed amendments, and describes the final rule.

SLGS securities are a type of non-marketable Treasury security that is available for purchase by state and local governments and other issuers (as defined in 31 CFR 344.1) of tax-advantaged bonds (Issuers). SLGS securities have been issued by Treasury since 1972. The purpose of the SLGS program is to assist state and local government Issuers in complying with yield restriction and rebate requirements applicable to tax-advantaged bonds under the Internal Revenue Code.

Generally, the arbitrage requirements under the Internal Revenue Code provide that with certain exceptions, the proceeds of a tax-advantaged bond may not be invested at a yield that is materially higher than the yield on the bond (26 CFR 1.148-2). In the limited circumstances in which bond proceeds may be invested above the bond yield, the bond issuer generally is required to rebate to the Federal Government any earnings in excess of the bond yield.

SLGS securities may only be purchased with eligible funds (defined in 31 CFR 344.1). For SLGS Time Deposit securities (defined in 31 CFR 344.4) that bear interest, purchasers may generally select any maturity period from 30 days to 40 years and any interest rate that does not exceed the applicable SLGS rate for that maturity published in the daily SLGS rate table. Since 2005, the maximum SLGS rates have been set at the current Treasury borrowing rate less one basis point. Purchasers of SLGS securities have the flexibility to structure the securities with specified payment dates and yields.

In 1996, Treasury amended the regulations governing SLGS securities to eliminate certain requirements that had been introduced at various times since 1972, and to make the program a more flexible and competitive investment vehicle for Issuers (61 FR 55690, October 28, 1996). Under the 1996 regulations, Treasury also added a provision to permit Issuers to subscribe for SLGS securities and subsequently cancel the subscription, without a penalty, under certain circumstances. This additional flexibility led to unintended consequences in the SLGS program, primarily the creation of cost-free options.

Subsequently, in a series of regulatory amendments, Treasury has instructed that Issuers cannot use the flexibilities in the program, such as the ability to subscribe for SLGS and marketable securities and to select interest rates and maturities on SLGS securities, in a manner that either creates a cost-free option or is not necessary for the Issuer's compliance with yield restriction and rebate requirements. In 1997, Treasury amended the regulations to prohibit the use of the SLGS program to create a cost-free option in certain circumstances (62 FR 46444, September 3, 1997). Treasury stated in the preamble to the rulemaking that it was inappropriate to use the SLGS securities program as an option and provided examples of unacceptable practices. These practices included, among others, subscribing for SLGS securities for an advance refunding escrow and simultaneously purchasing marketable securities for the same escrow, with the plan that the marketable securities would be sold if interest rates declined or the SLGS subscription would be canceled if interest rates did not decline.

In 2004, Treasury proposed further amendments. In a proposed rule published in September 2004 (69 FR 58756, September 30, 2004) (2004 NPRM), Treasury indicated that it had become aware of several other practices involving SLGS securities that are also inappropriate uses of the securities and contrary to the purpose of the program. Several regulatory amendments were proposed to address these practices and other miscellaneous items. The 2004 NPRM addressed the redemption before maturity or sale of securities to reinvest at a higher yield, as well as the cancellation of subscriptions for the purchase of SLGS securities and re-subscribing at a higher yield when interest rate movements were favorable.

The 2004 NPRM reiterated that Treasury views the practice of requesting redemption of SLGS securities before maturity to take advantage of relatively infrequent updates to SLGS interest rates as an inappropriate use of SLGS securities. Even if undertaken to eliminate negative arbitrage (where bond proceeds have been invested at a yield that is less than the yield on the Issuer's bond), Treasury considers the practice to be a cost-free option and inconsistent with the purpose of the SLGS program. Treasury noted that there is a direct cost of such actions to Treasury because Treasury is not being compensated for the value of the option; that the practice results in volatility in Treasury's cash balances and increases the difficulty of cash balance forecasting and thereby increases Treasury's borrowing costs; and that there are administrative costs. The 2004 NPRM proposed a new provision making it impermissible to purchase a SLGS security with a maturity longer than is reasonably necessary to accomplish a governmental purpose of the Issuer. After reviewing the public comments and considering other measures being taken to stop the creation of cost-free options, Treasury decided not to implement the rule against purchasing securities with maturities longer than reasonably necessary to accomplish a governmental purpose.

The 2005 final rule (70 FR 37904, June 30, 2005) addressed several inappropriate practices that provided SLGS investors cost-free options or arbitrage opportunities that are not available in marketable securities. Those practices imposed substantial costs on the Federal Government. The amendments in the 2005 final rule were intended to make investments in SLGS securities more closely resemble investment opportunities available in Treasury marketable securities.

While implementation of the 2005 final rule put an end to many of the impermissible practices, Treasury still observed misuses within the SLGS program whereby program flexibilities were used to create cost-free options. For these reasons, the September 30, 2022 NPRM proposed the amendments described below to eliminate certain practices that persisted after Treasury's previous rule amendments. Treasury intends these amendments to also address new, yet similar, types of transactions that may also create impermissible cost-free options. Treasury believes that the amendments proposed in the NPRM retain sufficient flexibility for Issuers to appropriately select maturities and interest payment dates (a principal reason that SLGS securities are an attractive investment vehicle for Issuers) without creating cost-free options.

The final rule amendments will apply only to SLGS subscriptions started on or after August 26, 2024, the effective date of the final rule.

Treasury received two public comment letters on the NPRM: one from a nonprofit organization and bar association representing attorneys who work in the municipal bond market, and one from an independent municipal advisory firm. In general, the commenters objected to proposed rule amendments that would reduce flexibilities in the program. Commenters expressed concern that certain of the proposed amendments were vague or insufficiently clear. The commenters also made certain suggestions pertaining to items outside of the scope of the NPRM's proposed amendments. Comments within the scope of the NPRM are addressed below.

In the NPRM, Treasury explained that, despite prior rule amendments to explicitly prohibit the creation of cost-free options within the SLGS program, it has observed misuse where purchasers buy long-term SLGS securities and then redeem the security before maturity when interest rates move in a favorable manner to capture a redemption premium. To eliminate the creation of cost-free options, Treasury proposed imposing a requirement that the term of the SLGS security subscribed for is no longer than reasonably necessary for the Issuer's governmental purpose (as defined in § 344.1 of the proposed rule) for its purchase of the security and that Issuers must hold Time Deposit securities for a minimum amount of time before requesting an early redemption.

To eliminate the cost-free option, the final rule adds a new restriction on maturity lengths in § 344.2(f)(1)(iv) that will be evidenced by a duration certification under § 344.2(e)(3) requiring the Issuer to certify that the length of the maturity of a SLGS security subscribed for is no longer than reasonably necessary for the underlying governmental purpose of the investment. To further explain what it considers to be the creation of an impermissible a cost-free option, Treasury is amending the non-exhaustive list of impermissible transactions in § 344.2(f)(1) by adding a new functional description. This description exhibits an impermissible practice of purchasing or redeeming prior to maturity a SLGS security with a term that is longer than is reasonably necessary to accomplish the governmental purpose.

Creating a subscription in the SLGSafe system (the secure internet site through which subscribers submit SLGS securities transactions) currently requires several certifications before a subscription can be completed; however, there is currently not a certification on the term of the SLGS security. The NPRM proposed a new duration certification which is intended to address a practice where an Issuer, in response to the direction of interest rates, purchases a SLGS security with a term longer than necessary for its governmental purpose, and then redeems the security before maturity to collect a premium.

The current rule at § 344.2(e) requires the Issuer or its agent to make: (1) an agent certification, and (2) a yield certification upon submitting a subscription for purchase of SLGS securities. Both certifications are currently incorporated into the subscription process within the SLGSafe system. The new duration certification will be added to the existing certifications in SLGSafe and will not require any additional paperwork or other administrative burden. Demand Deposit securities (as defined in 31 CFR 344.7) have a maturity of one day and will not be subject to the duration certification.

Treasury received comments from both commenters on the proposed duration certification. One commenter expressed concern that the duration certification requirement is vague and may cause confusion, while the other commenter requested further details on the process by which an Issuer would fulfill the certification requirement and requested that the requirement not impose an additional cost or burden on the Issuer.

Treasury has considered these comments and has determined that implementation of the duration certification is necessary to help stop inappropriate uses of the program. The duration certification requires that the term of the security subscribed for must be “reasonably” necessary for the Issuer's governmental purpose (as defined in § 344.1). The duration certification requirement provides needed clarity but also allows for some limited flexibility in matching the security term to the governmental purpose. At the time of subscription, Issuers should have a reasonable understanding of their maturity requirements for a particular subscription. Additionally, by incorporating the duration certification into the existing subscription process, in which other required certifications (§ 344.2(e)) already exist, there is no additional burden or expense for Issuers. In this final rule, Treasury has updated the duration certification language in § 344.2(e) to better match the requirement in § 344.2(f)(1).

Transactions that impermissibly take advantage of the flexibilities afforded to Issuers in the SLGS program to create cost-free options are prohibited. The final rule includes additional examples of impermissible practices in § 344.2(f)(2). However, the list of examples in the regulation is non-exhaustive. These restrictions are necessary to curb the use of the SLGS program as a cost-free option. Previous efforts to eliminate the creation of cost-free options within the program have not adequately addressed these activities, and no alternatives have been identified that would be workable to achieve this goal.

There were no comments on the proposed addition of examples of impermissible practices, and accordingly Treasury adopts the amendment as proposed.

In the NPRM, Treasury proposed requiring a minimum 14-day holding period after a Time Deposit security has been issued and before the Issuer may request an early redemption of a Time Deposit note or bond. Treasury is adopting this change as proposed. Under the current regulations, the Issuer may request early redemption of a Time Deposit security as early as the day after Treasury issues the SLGS security. While a request for early redemption may be submitted as soon as the day after issue, a Time Deposit security that is a certificate of indebtedness of 30 days or more has a minimum 25-day holding period for redemption, and a Time Deposit security that is a note or bond has a minimum 30-day holding period for redemption. Treasury is not amending these minimum holding periods for redemption; however, Treasury is increasing the holding period, as proposed, prior to an Issuer being permitted to request an early redemption of a Time Deposit security that is a note or bond. In other words, the minimum holding period for requesting early redemption is increased, while the minimum holding period for early redemption remains the same. For example, currently a Time Deposit security that is a note or bond issued on the first day of a month may not be early redeemed prior to the 31st of that month, and notice of the early redemption may be submitted as early as the second day of that month. Under the final rule, that same Time Deposit security still may not be early redeemed prior to the 31st of the month of issuance, but notice of early redemption may not be submitted until the 15th day of that month (after the minimum 14-day holding period).

Because the interest rate used to calculate a premium or discount on an early redemption of a Time Deposit security is fixed as of the date that the early redemption of the security is requested, there are currently opportunities for Issuers to use the early redemption flexibility to generate premiums within the SLGS program. Treasury considers this to be the creation of a cost-free option and therefore impermissible. Increasing the minimum holding period before an Issuer may request early redemption will deter the creation of this type of impermissible cost-free option by increasing the interest rate risk to a more meaningful level than exists under current regulations. It is Treasury's view that even more than de minimis risk to the Issuer does not change the fact that this is still a cost-free option and, either with or without risk, is an impermissible practice.

One commenter expressed concern that the minimum holding period could have an unintended negative impact on Issuers whose circumstances have changed or may require cash proceeds sooner than the proposed 14-day minimum holding period. Treasury believes this concern is misplaced, because Treasury is not changing the length of time that a Time Deposit security must be held prior to early redemption. The change is only to the amount of time that the security must be held prior to the Issuer making the request for early redemption. Therefore, Treasury adopts the amendment as proposed.

The NPRM proposed requiring that all Issuers must provide a maturity date at the start of a subscription, rather than by the time of completion of the subscription. The NPRM proposed that when starting a Time Deposit security subscription under § 344.5(b)(5) and completing a subscription under § 344.5(e)(2), the Issuer must separately itemize the maturity date(s) by individual Time Deposit security. If necessary, Issuers could still adjust the maturities of each of the Time Deposit securities, within certain parameters as described below.

One commenter expressed concern that adding this requirement could cause a problem for Issuers that know the minimum settlement requirement, but do not know the full details at the time of starting the subscription. The commenter's concern appears to be that this requirement may be overly burdensome and result in additional potential errors in the subscription details.

The NPRM did not propose adding additional requirements to the overall information necessary to issue a SLGS security. Specifying the term of a Time Deposit security has always been a requirement prior to issuance of that security in the SLGSafe system. Treasury is merely adjusting the time at which the security information must be provided from the time of issuance to the start of a SLGS subscription. Consequently, there is no additional burden placed upon an Issuer as to the type of information that must be provided to Treasury. Further, with respect to the risk of potential errors in the information that will be needed to start the SLGS subscription, SLGSafe will continue to include flexibility for the Issuer to adjust the initial established term of the security, within certain limits, to better match the projected needs of the Issuer that may change in the time between the start of the subscription and the issuance of the security. If the Issuer's circumstances change such that the built-in flexibilities are inadequate to address the needed correction, the Issuer may contact Treasury and request a waiver under the rules to allow for an adjustment to the maturity date. Treasury will carefully review the waiver request and any relevant supporting information, as it currently does with waiver requests, to ensure that there is no creation of an impermissible cost-free option. The request should explain any time exigencies so that Treasury can timely reply to the request. Therefore, Treasury adopts the rule amendment as proposed.

The NPRM proposed limiting Issuer adjustments to the maturity of a Time Deposit security before issuance. While this flexibility is an attractive feature of the SLGS program, it is also a flexibility where Treasury has observed repeated misuses of the program to create cost-free options. The NPRM proposed a new restriction that the Issuer cannot change the maturity date on a Time Deposit security by more than 30 days for certificates of indebtedness, six months for notes, and one year for bonds. The proposed rule amendments retain the Issuer's flexibility in setting the maturity of SLGS securities, while removing the ability to alter maturities beyond the time required to accomplish a governmental purpose. The flexibility retained in this provision will allow appropriate amendments to subscriptions for the purchase of SLGS securities while curbing efforts to create impermissible cost-free options.

One commenter requested that Treasury provide clear direction on the permissible and impermissible adjustments that may be made to the maturity of a Time Deposit security prior to issuance. Treasury believes the final rule provides clarity regarding these terms.

For example, an Issuer that subscribes for a certificate of indebtedness Time Deposit security with a maturity of 60 days may amend the maturity of that security prior to issuance by either lengthening or shortening the term by up to 30 days, such that the amended term may be any length between 30 days and 90 days, subject to other applicable rule requirements. A certificate of indebtedness subscribed for with a term of 360 days may be amended prior to issuance such that the term may be any length between 330 days and 390 days, subject to other applicable rule requirements. An Issuer that subscribes for a note Time Deposit security with a term of 5 years may amend the maturity prior to issuance by either lengthening or shortening the term by up to 6 months, such that the term may be any length between 4 years and 6 months, and 5 years and 6 months, subject to other applicable rule requirements. An Issuer that subscribes for a bond Time Deposit security with a term of 15 years may amend the maturity prior to issuance by either lengthening or shortening the term by up to 1 year, such that the term may be any length between 14 years and 16 years, subject to other applicable rule requirements.

The amount that a maturity can be adjusted is based on the term of the Time Deposit security as originally subscribed for, not the term of the resulting security after adjustment. For example, a note Time Deposit originally subscribed for with a term of 9 years and 7 months could be adjusted to a term of 10 years and 1 month. Even though the resulting security after adjustment is a bond Time Deposit security, the restriction on the amount of the adjustment is based on the Time Deposit security prior to any adjustment, which was a note Time Deposit security in this example.

Additionally, Time Deposit securities whose maturities are adjusted more than once prior to issuance remain subject to the adjustment restriction based on the term of the security originally subscribed for, not on the term after the adjustments. For example, where a Time Deposit security was originally subscribed for with a term of 10 years, the maturity can be adjusted multiple times within SLGSafe prior to issuance; however, regardless of any maturity adjustments prior to issuance, the maximum term of the security remains 10 years and 6 months, and the minimum term remains 9 years and 6 months. Treasury reiterates that in addition to complying with these adjustment restrictions, the final maturity chosen must be no longer than reasonably necessary for the underlying governmental purpose of the investment, as required by the new duration certification described above.

While this provision permits changes to the term of a Time Deposit security, Treasury emphasizes that such flexibilities are intended to address situations when there is a change related to the governmental purpose after a subscription is started and prior to the issuance of the security, such as changes in projections of when the funds will be needed to meet disbursement or payment needs. Such flexibility is not provided for the purpose of adjusting maturities in response to movements in interest rates, anticipated movements in interest rates, or for any reason other than a change in circumstances that requires an adjustment to the maturity date. A change made to the maturity date for any other reason, even if the change complies with the adjustment restrictions described in this section, is prohibited under the final rule as the creation of an impermissible cost-free option.

Treasury's current regulation provides that the aggregate principal amount originally specified in a SLGS subscription cannot be changed by more than 10 percent. The NPRM proposed to apply the 10 percent limit to each Time Deposit security rather than to a SLGS subscription as a whole. The “limiting maturity adjustments on Time Deposit Securities” proposed amendment would be ineffective if Issuers could simply “shift” subscribed for amounts from one Time Deposit security to another Time Deposit security with a significantly different maturity date.

Both commenters expressed concerns about the proposed change. One commenter noted that it could cause problems for Issuers that subscribe for SLGS securities when the minimum settlement amount is known but the full details for the subscription are not known at the time of starting a subscription. The other commenter expressed concern that this change would negatively impact the flexibility of Issuers to adjust subscriptions at the Time Deposit security level prior to issuance. The commenter also stated that maximum flexibility in refining subscriptions allows for optimal utilization of the SLGS program.

Even with the proposed amendment, appropriate flexibilities for Issuers remain. The current requirement on the amount that a SLGS subscription as a whole may be adjusted (+/−10%) is not being amended. The amendment requires that the Time Deposit security specific information that is required in all subscriptions prior to issue date, must be provided at the start of a SLGS subscription. The amendment is tailored to avoid the creation of impermissible cost-free options. Further, if the circumstances of an Issuer change such that the remaining flexibility is inadequate to address a necessary correction, the Issuer can contact Treasury and request a waiver under the rules to allow for a larger adjustment to the principal amount on the specific Time Deposit securities required. Therefore, Treasury adopts amendment as proposed.

In the NPRM, Treasury did not propose any amendments pertaining to the principal amounts for Demand Deposit securities. Accordingly, there were no comments relating to the rule as it pertains to Demand Deposit securities, and they will remain subject to the current rule that the aggregate principal amount may not be changed by more than 10 percent above or below the amount originally specified in the subscription.

In the NPRM, Treasury proposed reinserting language that the purpose of the SLGS program is “to assist in complying with applicable provisions of the Internal Revenue Code” as it appeared prior to the amendments made in 2005. At that time, Treasury updated the stated purpose of the SLGS program based on commentors' views that it was vague. However, the 2005 amendment was perceived as causing confusion among Issuers that interpreted the amendment to mean that the program could be used for broader, unintended purposes, such as eliminating negative arbitrage, in contravention of the rule against cost-free options.

Treasury received no comments on the proposed amendment to § 344.0(a) stating the purpose of the SLGS program and adopts the amendment as proposed.

The NPRM proposed amendments to certain definitions used in the SLGS program, including revisions to some existing definitions and the addition of new definitions to help clarify various provisions in the rules.

The NPRM proposed amending the definition of “business day” in § 344.1 to clarify which days normal processing of SLGS securities transactions will occur. Treasury received no comments on the proposed amendment and adopts the change as proposed.

The NPRM proposed amending the definition of “Issuer” in § 344.1 to update the definition to better align with the IRS arbitrage regulations. Treasury received no comments on the proposed amendment and adopts the change as proposed.

The NPRM proposed amending the definition of “eligible source of funds” to better align with the relevant portions of the Internal Revenue Code and the Income Tax Regulations. Treasury received no comments on the proposed amendment and adopts the change as proposed.

The NPRM proposed adding a definition of “cost-free option” in § 344.1 that states that “the use of any provision(s) in the SLGS program to exploit movements in interest rates, including, but not limited to, those designed to provide marginal flexibility to Issuers in structuring their SLGS investments” constitutes a cost-free option, which is prohibited in the rules. One commenter expressed concern that the definition may be overly broad and suggested stating that the definition of a cost-free option is specific to SLGS and other Treasury obligations. Treasury intentionally drafted the definition of cost-free option broadly to encompass all situations in which impermissible actions could be taken by Issuers to exploit the movement in interest rates. Past behavior by Issuers supports this broad definition. These misuses have primarily arisen through the creation of inappropriate cost-free options. Treasury notes, however, that the definitions set out in § 344.1 are specific to the SLGS program and do not purport to apply outside of part 344. Therefore, Treasury adopts the addition of the definition of cost-free option as proposed.

In the NPRM, Treasury proposed adding a definition of “marketable security” in § 344.1 that closely aligns with the example published in the SLGS Frequently Asked Questions. Treasury received no comments on the proposed amendment and adopts the addition of the definition of marketable security as proposed.

The NPRM proposed adding a definition of “tax-advantaged bond” in § 344.1 that corresponds with the definition of the types of bonds to which the relevant portions of the Internal Revenue Code and the Income Tax Regulations (generally 26 U.S.C. 148 and 26 CFR 1.148-0 through 1.148-11) apply. Treasury received no comments on the proposed amendment and adopts the addition of the definition of tax-advantaged bond as proposed.

The NPRM proposed adding a definition of “governmental purpose” in § 344.1 clarifying that using the SLGS program to create cost-free options is not a permitted governmental purpose. Treasury received no comments on the proposed amendment and adopts the addition of the definition of governmental purpose as proposed.

The NPRM proposed adding a new § 344.2(e)(4) that would add a certification on the Issuer's eligibility to purchase SLGS securities. This certification would require the Issuer to notify Treasury if, at any point while SLGS securities are outstanding, the issuer becomes ineligible to purchase SLGS securities or the funds used to purchase SLGS securities are no longer “an eligible source of funds.” The notification requirement would apply to all outstanding SLGS securities ( e.g., Time Deposit, Demand Deposit, and special 90-day certificates of indebtedness). Once Treasury receives notification that funds used to purchase a SLGS security are no longer “an eligible source of funds,” reinvestment of those funds after maturity into another SLGS security will not be permitted. Because Demand Deposit SLGS are one-day certificates of indebtedness that are automatically rolled over each day until redemption is requested, Treasury will deem the notification to be a request to redeem those outstanding Demand Deposit securities that are affected by the ineligibility under § 344.9, as amended. The Issuer would not be required to early redeem Time Deposit securities that are outstanding at the time of the notification because Time Deposit securities are longer-term securities that would have been purchased with an eligible source of funds at the time of issuance. Likewise, special 90-day certificates of indebtedness purchased with funds that are no longer considered “an eligible source of funds” would be redeemed either upon maturity ( i.e., would not be rolled into a new special 90-day certificate of indebtedness) or upon reversion to Demand Deposit securities and would not have to be early redeemed.

One commenter on the proposed rule asked for additional detail on the process through which an Issuer would certify its eligibility to purchase SLGS securities. Additionally, the commenter suggested that the regulations would be enhanced by clarifying any timing requirements associated with the notification. Treasury anticipates incorporating the eligibility certification into the existing certification process within the SLGSafe system that is used to subscribe for the purchase of SLGS securities. Treasury further clarifies that an Issuer must notify Treasury when the Issuer receives a “final adverse determination” letter from the IRS informing the Issuer that the funds status has changed and the funds are no longer considered proceeds from a tax-advantaged bond. If an Issuer has any question about a particular instance or IRS determination, that Issuer may contact Treasury with its specific details and seek further guidance on what, if anything, is required under the eligibility certification.

After considering this comment, Treasury has decided to adopt the amendment as proposed.

In the NPRM, Treasury proposed amending § 344.4(b)(1) to state that Treasury will post the SLGS rate table “by 10 a.m. Eastern Time each business day or as soon as practicable thereafter,” to provide Treasury more flexibility in those rare instances where the SLGS rate table cannot be released to the public by 10 a.m. Eastern Time. The amendment would provide that if no SLGS rate table has been published by 11 a.m. Eastern Time, then the SLGS rate table for the preceding business day would apply.

One commenter on the proposed rule stated that the amendment to the time for posting the SLGS rate table would increase ambiguity surrounding the timing for when the SLGS rates may be published and could adversely affect Issuers that price bonds in the market before 11 a.m. Eastern Time. The commenter suggested that the provision should not be amended. Treasury appreciates the concerns expressed in the comment, and the proposal would maintain the general expectation that the SLGS Rate Table would be published by 10 a.m. each business day. However, there may be rare situations where it is not feasible for Treasury to post the SLGS rates by 10 a.m. (for example due to an operational issue such as internet connectivity), and the proposed amendment would provide Treasury limited flexibility in posting the rates shortly thereafter. Additionally, the SLGS window remains open until 10 p.m. Eastern Time each business day and provides ample time for Issuers to finalize pricing and enter a subscription in the SLGSafe system. Therefore, Treasury adopts the amendment as proposed.

The NPRM proposed amending the lead time for an Issuer to subscribe for SLGS securities from 60 to 45 calendar days. Moving the subscription date closer to the issue date would provide more accurate pricing for SLGS securities and would narrow the window of time in which an impermissible cost-free option could be created. Since less than 4 percent of SLGS subscriptions are started more than 45 days in advance of issue date, the impact of the proposed reduction in subscription lead time on Issuers should be minimal.

Treasury received comments from both commenters suggesting that maintaining the existing 60-day lead time would benefit Issuers in bond pricing and issuance especially during times of an impending debt limit contingency. In light of the other amendments in the final rule that are designed to reduce the opportunity to create impermissible cost-free options, Treasury accepts these comments and is not amending the current 60-day lead time for subscriptions to be submitted in SLGSafe.

The NPRM proposed amendments to update §§ 344.5(e) and 344.8(e), which detail the information necessary for an issuer to start and complete the subscription process for Time Deposit and Demand Deposit securities, respectively. Updates are required due to the changes implemented by this rule. These amendments will help reduce opportunities to create impermissible cost-free options.

One commenter stated that some Issuers that currently subscribe for SLGS in time to account for the minimum settlement requirement do not know the full details of their subscription at the time of initial subscription. The commenter noted that requiring these Issuers to provide full subscription details at the time of initial subscription may be overly burdensome and result in potential errors in subscription details.

The proposed amendments would not add new requirements to the overall information necessary to issue a SLGS security. The maturity date for a Time Deposit security has always been a requirement prior to issuance. Treasury is only adjusting the time at which the Time Deposit security information must be provided, from the time of issuance to the start of a SLGS subscription. Hence, there is no additional burden on an Issuer as to the type of information that must be provided to Treasury. As to the concern about potential errors, Treasury is building in flexibility to allow the Issuer to adjust the previously established maturity of each Time Deposit security to better match the projected needs of the Issuer prior to the issuance of that security. If there are significant changes to an Issuer's circumstances and the SLGS program's flexibilities are inadequate to address the necessary changes, the Issuer can contact Treasury and request a waiver under the rules to allow for an adjustment to the Time Deposit security's maturity date. Therefore, Treasury adopts the amendment as proposed.

The NPRM noted that under the current rule, the underlying tax-advantaged bond issue must be identified when the Issuer “starts” and “completes” the subscription for SLGS securities. This requirement has been in the current regulation since the 2005 rule required the Issuer to enter a description of the Issuer's tax-exempt bond issue, such as “Water and Sewer Revenue Bonds Series 2004” (70 FR 37904, 37907, June 30, 2005). Subsequently, the Municipal Securities Rulemaking Board (MSRB) launched its Electronic Municipal Market Access (EMMA®) system, and EMMA has now become the official repository for municipal securities disclosures.

Given that EMMA generally contains information about state and local government bonds, the NPRM proposed requiring that if a bond issue is registered in EMMA, the Issuer must adhere to the naming convention supplied in the “issue description” field on the “Security Information” tab in EMMA at https://emma.msrb.org when describing the tax-advantaged bond in SLGSafe. If the EMMA website amends its naming convention, the Issuer would supply the updated registration as it is presented in EMMA or its successor system.

The Issuer would be able to input the “EMMA registration” into SLGSafe at the time the subscription is started, but that information could be changed or updated at any time. This would allow additional time for the Issuer to update the description field if the bond issue has not yet been registered with EMMA when the subscription is started. Coordinating the EMMA registration information with the underlying bond issuance field in SLGSafe will assist Treasury in determining if the amounts are an “eligible source of funds” that may be used to purchase SLGS securities.

One commenter on the proposed amendment expressed concern that the requirement to provide EMMA registration information may prevent Issuers from using the SLGS program because the requirement to identify a single bond issue eliminates Issuers' ability to invest commingled debt service reserve funds. Treasury is not amending its rules to change which funds can be used to purchase SLGS securities, including comingled funds. If the funds qualify as an eligible source of funds, the proposed amendment does not change their eligibility. Treasury intends to provide capability within SLGSafe for an Issuer to enter EMMA information for multiple registrations if needed.

A commenter also raised concerns that in many instances, an escrow trustee will file the subscription for SLGS securities. Given the escrow trustee's limited role in most bond issues, the commenter suggested that the additional identification requirement may cause confusion or result in faulty subscriptions for SLGS securities. An escrow trustee, acting as an agent on behalf of the Issuer, should be privy to the information surrounding an EMMA registration. Therefore, Treasury believes that requiring an agent for the Issuer to provide this information during the subscription process should not be unduly burdensome or costly.

Another commenter expressed concern that Issuers may use naming conventions other than the EMMA registration's naming convention for use within their own records and that requiring Issuers to change their naming conventions to those used in the EMMA registration could cause problems. To implement this amendment, Treasury is requiring that the EMMA registration information be entered in the existing “Underlying Bond Issue” field within SLGSafe, while retaining flexibility for Issuers to continue current practices used when subscribing for SLGS securities. The amendment requires the same information, a description of the bond issuance, including the required EMMA description (where available), while allowing flexibility for the Issuer to include its own naming convention.

Finally, a commenter noted that there are instances when the name of the issue is incorrectly entered on EMMA. Because Treasury may use this information to identify the underlying bond issue, the EMMA information provided should appear exactly as it does in the EMMA system. If there are any updates or corrections in the EMMA system, an Issuer must update the EMMA information in SLGSafe as soon as possible.

For these reasons, Treasury adopts the amendment as proposed.

The NPRM proposed removing subpart D of the current rule, as special zero interest securities were discontinued by Treasury on October 28, 1996, and all outstanding SLGS securities issued on or before December 27, 1976, matured by November 1, 2013. Treasury received no comments on this proposal and is removing §§ 344.5(e)(4) and 344.6(g) as proposed.

The NPRM noted that the current SLGS rules state that at any time the Secretary determines that issuance of obligations sufficient to conduct the orderly financing operations of the United States cannot be made without exceeding the statutory debt limit, Treasury must invest any unredeemed Demand Deposit securities in special 90-day certificates of indebtedness. Treasury proposed amending § 344.7(b) to provide the Secretary with the flexibility to exercise discretion to either leave the unredeemed Demand Deposit securities invested or to invest them in special 90-day certificates of indebtedness.

Treasury received no comments and therefore adopts the amendment as proposed.

The NPRM proposed clarifying § 344.7(b)(1) to provide that Demand Deposit securities during a debt limit contingency remain subject to the normal terms and conditions that apply to Demand Deposit securities.

Treasury received no comments and therefore adopts the amendment as proposed.

The NPRM proposed to clarify § 344.7(b)(2) to provide that special 90-day certificates of indebtedness that are issued during a debt limit contingency remain subject to the same redemption rules as Demand Deposit securities. As proposed, Treasury would roll over special 90-day certificates of indebtedness, along with accrued interest, into new special 90-day certificates of indebtedness when a debt limit contingency period lasts longer than 90 days.

Treasury received no comments and therefore adopts the amendment as proposed.

The NPRM noted that the current SLGS rules provide that at the end of a debt limit contingency, the Issuer has the option to keep the special 90-day certificates of indebtedness until maturity, redeem them before maturity, or reinvest them in Demand Deposit securities. Treasury proposed to amend § 344.7(b)(2) to provide that when regular Treasury borrowing operations resume, Treasury would redeem any special 90-day certificates of indebtedness and reinvest the proceeds, along with accrued interest, in Demand Deposit securities. As a result, the Issuer would again hold the investment that the Issuer originally requested.

Treasury received no comments and therefore adopts the amendment as proposed.

In the NPRM, Treasury noted that § 344.9(a) currently requires notice of one business day for redemption of Demand Deposit securities in the amount of $10 million or less and notice of three business days for redemptions of more than $10 million. To aid in Treasury's cash forecasting and cash management, Treasury proposed to amend § 344.9(a) to require notice of five business days for redemption of Demand Deposit securities and special 90-day certificates of indebtedness in the principal amount of $500 million or more.

One commenter noted that the amendment would assist Treasury in its cash forecasting and cash management but could have complications for Issuers and limit Issuer flexibility. While Treasury recognizes that this amendment would slightly reduce the flexibility in redeeming Demand Deposit securities, it will provide material benefits to Treasury's cash forecasting and cash management processes, which require accurate projections of cash inflows and outflows. Furthermore, Treasury believes that for cash needs of $500 million or more, Issuers will generally have sufficient notice and can provide the same to Treasury. Finally, in the event of an emergency, an issuer can request a waiver of this provision and ask that Treasury allow for a redemption of a Demand Deposit security with less notice.

Therefore, Treasury adopts the amendment as proposed.

In addition to those comments discussed above, commenters recommended additional amendments to the SLGS program. Such comments are beyond the scope of the NPRM and are not addressed here.

Treasury notes that the delayed effective date of this final rule is intended to provide Issuers with sufficient time to review the final rule and make any necessary adjustments to their systems or processes.

This final rule is not a significant regulatory action for purposes of Executive Order 12866, dated September 30, 1993, as amended.

Because this rule relates to United States securities, which are contracts between Treasury and the owner of the security, this rule falls within the contract exception to the APA, 5 U.S.C. 553(a)(2). As a result, the notice, public comment, and delayed effective date provisions of the APA are inapplicable to this rule.

This final rule relates to matters of public contract and procedures for United States securities. Therefore, under 5 U.S.C. 553(a)(2), the notice and public procedure requirements of the APA are inapplicable. Because a notice of proposed rulemaking is not required, the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., do not apply.

Neither the proposed rule, nor the final rule contain any new collection of information subject to the Paperwork Reduction Act.

This rule is not a major rule pursuant to the CRA, 5 U.S.C. 801 et seq., because it is a minor amendment that is not expected to lead to any of the results listed in 5 U.S.C. 804(2). This rule will take effect on August 26, 2024, after publication in the Federal Register and after we submit a copy of it to Congress and the Comptroller General.

For the reasons set forth in the preamble, we amend 31 CFR part 344 as follows:

Title 38 of the Code of Federal Regulations, Chapter I, Part 0 governs the Values, Standards of Ethical Conduct, and Related Responsibilities of VA employees. Subpart B, “General Provisions” includes 38 CFR 0.735-1 “Agency ethics officials” which is amended to provide updated information regarding the designation of agency ethics officials and the employees who may serve in these roles. The sections are also amended to reflect nomenclature changes to the names of certain Office of General Counsel offices and the employees in those offices.

Specifically, 38 CFR 0.735-1(a) is amended to reflect that the Secretary designates attorneys from the Office of General Counsel to serve as the Designated Agency Ethics Official (DAEO) and Alternate Designated Agency Ethics Official (ADAEO). Additionally, 38 CFR 0.735-1(b)(1) is amended to reflect nomenclature changes to the names of Office of General Counsel positions, including District Chief Counsels, and teams, including the Ethics Specialty Team. This subsection is also amended to broaden the group of individuals who may act as Deputy Ethics Officials pursuant to delegations from the DAEO. Finally, 38 CFR 0.735-1(b)(2) is amended to include a citation to 5 CFR 2638.104(e) as the existing citation to 5 CFR 2638.204 is outdated.

This final rule is a procedural rule that does not impose new rights, duties, or obligations on affected individuals but, rather, explains that the Secretary appoints Agency ethics officials and identifies the employees that may serve as Agency ethics officials. Therefore, it is exempt from the prior notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553. See 5 U.S.C. 553(b)(A) and (d)(3). This rule merely updates information regarding the delegation of Agency ethics officials, the employees who may serve in those roles, and the names of certain offices and employees in the Office of General Counsel.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The initial and final regulatory flexibility analyses requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. This rule will affect only: (1) Office of General Counsel (OGC) and VA employees who serve as Agency ethics officials, and (2) VA employees seeking ethics advice from these Agency ethics officials. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

There are no Assistance Listing numbers and titles for the programs affected by this document.

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not satisfying the criteria under 5 U.S.C. 804(2).

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule 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 (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Denis McDonough, Secretary of Veterans Affairs, approved this document on February 26, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons set out in the preamble, the Department of Veterans Affairs amends 38 CFR part 0 as follows:

In an interim final rule (IFR) published in the Federal Register (FR), VA amended its medical regulations to remove the exclusion on abortion counseling in the medical benefits package; establish exceptions to the exclusion on abortions for veterans who receive care set forth in that package; and remove the exclusion on abortion counseling and expand the exceptions to the exclusion on abortions for Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) beneficiaries. 87 FR 55287 (September 9, 2022).

VA provided a 30-day comment period on the IFR, which ended on October 11, 2022. VA received 57,901 comments, many of which were supportive of the IFR. The vast majority of the comments were a type of duplicated form response, where some requested clarifications or suggested changes to the IFR, and others merely expressed support or requested the IFR be rescinded without suggested clarifications or changes. VA summarizes and addresses all topics raised in relevant and significant comments below, but VA does not address any supportive comments below that did not also request clarifications or suggest substantive revisions.

Many commenters asserted that VA does not have the legal authority to promulgate or implement the IFR, most of which provided few details to explain their assertions. Other commenters cited to specific laws that they asserted conflicted with VA's provision of the health care services permitted by the IFR. VA addresses these comments below.

Many comments asserted that VA should rescind the IFR because VA has a longstanding policy regarding abortion and does not have the authority to impose the IFR in a manner that violates this policy. These comments generally assert that VA does not have authority to either promulgate or implement the IFR to remove the restriction on abortion counseling and create exceptions for abortions in certain circumstances in §§ 17.38 and 17.272 of title 38, Code of Federal Regulations (CFR).

VA does not make any changes to the rule and does not rescind the IFR based on these comments. As indicated in the IFR (see 87 FR 55288-55290), pursuant to VA's general treatment authority for veterans, VA “shall furnish” specified veterans with “hospital care and medical services which the Secretary determines to be needed.” Section 1710(a)(1)-(2) of title 38, United States Code (U.S.C.). For veterans not described in paragraphs (1) and (2), the Secretary “may,” subject to certain limitations, “furnish hospital care” and “medical services . . . which the Secretary determines to be needed,” 38 U.S.C. 1710(a)(3). Such “medical services” include “medical examination, treatment,” “[s]urgical services,” and “[p]reventive health services.” 38 U.S.C. 1701(6). VA implements its general treatment authority, and the Secretary determines what care is “needed,” 38 U.S.C. 1710(a)(1)-(3), by regulation through VA's medical benefits package. 38 CFR 17.38. Care included in the medical benefits package is “provided to individuals only if it is determined by appropriate health care professionals that the care is needed to promote, preserve, or restore the health of the individual and is in accord with generally accepted standards of medical practice.” 38 CFR 17.38(b). VA has determined that the health care services permitted under the IFR are “needed” within the meaning of VA's general treatment authority, 38 U.S.C. 1710, if an appropriate health care professional determines that such care is needed to promote, preserve, or restore the health of the individual and is in accord with generally accepted standards of medical practice. 38 CFR 17.38(b). Although VA previously did not have any exceptions to the exclusion on abortion in the medical benefits package, VA's authority as described above permits it to amend the medical benefits package through regulation. VA can therefore provide the health care services permitted under the IFR to veterans pursuant to 38 U.S.C. 1710 and 38 CFR 17.38. Similarly, VA has determined that providing access to such care is medically necessary and appropriate to protect the health of CHAMPVA beneficiaries. See 38 U.S.C. 1781; 38 CFR 17.270(b) (defining “CHAMPVA-covered services and supplies” as “those medical services and supplies that are medically necessary and appropriate for the treatment of a condition and that are not specifically excluded under [38 CFR 17.272(a)(1)] through (84)”).

Several commenters suggested that the IFR usurps Congressional authority. Other commenters stated that VA is unable to provide the health care services permitted under the IFR because Congress has not funded them specifically, or that VA should not use taxpayer money to provide the health care services permitted under the IFR because VA does not have the legal right to do so, and it is contrary to the wishes of taxpayers. VA does not make changes to the rule based on these comments. The IFR did not usurp Congressional authority. VA, similar to other agencies in the Executive Branch, has the authority to promulgate regulations to interpret and implement laws passed by Congress, and such regulations may have the force and effect of law. In this instance, the IFR was promulgated and implemented pursuant to statute. 38 U.S.C. 1710, 1781; see also id. 501. VA does not receive separate appropriations for individual medical services, but instead receives appropriations generally for authorized services. While some taxpayers may disagree with this use of Federal funds, VA is authorized to provide and pay for care that is needed for veterans and medically necessary and appropriate for CHAMPVA beneficiaries.

Commenters asserted that VA's interpretation of 38 U.S.C. 1710 to provide access to health care services permitted under the IFR was unsupported because the text of 38 U.S.C. 1710 does not expressly include these services and because VA has not previously invoked or construed 38 U.S.C. 1710 as authority for provision of these services. VA does not make changes to the rule based on these comments. The commenters' assertions regarding the text of 38 U.S.C. 1710 overlook that the terms “hospital care” and “medical services” as used in 38 U.S.C. 1710 are further defined in 38 U.S.C. 1701(5) and (6). As relevant here, “hospital care” is defined to include “medical services rendered in the course of hospitalization of any veteran” and “medical services” is defined to include “medical examination, treatment, and rehabilitative services,” “[s]urgical services,” and “[p]reventive health services” (38 U.S.C. 1701(5) and (6)). The definitions of “hospital care” and “medical services” in 38 U.S.C. 1701(5) and (6) do not list more specific types of care or services. And, in describing categories of hospital care and medical services, 38 U.S.C. 1701 and 1710 do not enumerate every conceivable or commonly prescribed care or service, whether such care or service involves specific care or services such as abortion, prescription drugs, or completion of specific medical forms such as life insurance applications. Rather, such care and services are generally described in the VA medical benefits package codified in 38 CFR 17.38(a).

The medical benefits package consists of a wide range of basic and preventive care, including inpatient and outpatient medical and surgical care, prescription drugs, emergency care, pregnancy and delivery services, and periodic medical exams. 38 CFR 17.38(a). Whether hospital care or medical services under the medical benefits package are considered needed are determinations that 38 U.S.C. 1701 and 1710 leave to the Secretary's discretion. See 38 U.S.C. 1710(a)(1) (“The Secretary . . . shall furnish hospital care and medical services which the Secretary determines to be needed[.]”). The Secretary can include or exclude care in the medical benefits package based on whether the Secretary determines that care is “needed” within the meaning of 38 U.S.C. 1710(a)(1)-(3). 38 CFR 17.38(c).

After the Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022), veterans living in States that ban or restrict abortions may no longer be able to receive needed medical services in their communities as a result of State restrictions. It is thus essential for the lives and health of our veterans that abortions be made available if determined needed by a health care professional when: (1) the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term; or (2) the pregnancy is the result of an act of rape or incest.

Additionally, the commenters' assertions that VA has never previously invoked its authority under 38 U.S.C. 1710 to authorize the provision of abortions are incorrect. Before the regulatory promulgation of the medical benefits package in 1999, which excluded the health care services permitted under the IFR, VA policy authorized the provision of certain abortions. VHA Policy, Manual M-2, Professional Services Part XIV, Surgical Service, Change 27, paragraph 9.02a (July 26, 1977, partial rescission, expired on Jan. 7, 1999) (authorizing “therapeutic . . . abortion as a proper treatment” in some circumstances pursuant to the procedures described therein). This was permitted under VA's authority to provide hospital care and medical services under 38 U.S.C. 1710 and 38 U.S.C. 1712 (former medical services authority), respectively. As explained in the IFR, VA did not explain the rationale behind the exclusion of abortions and abortion counseling from the medical benefits package when it was established in 1999, but at the time, Roe v. Wade, 410 U.S. 113 (1973) had been reaffirmed in relevant part by Casey, and VA was aware that veterans could access abortions in their communities. 87 FR 55288. Following the Dobbs decision, States began to ban or restrict abortion services and veterans living in those States were losing access to such medical care. Id. Thus, VA explained in the IFR that this policy change was essential for the lives and health of the veterans that VA serves. Id.

VA makes no changes to the rule based on the assertions raised in these comments, as discussed above.

In support of the claim that 38 U.S.C. 1710 does not authorize VA's provision of the health care services permitted under the IFR, some commenters cited to testimony presented during a June 2022 legislative hearing before the House of Representatives Veterans Affairs Committee Subcommittee on Health and minutes from an August 2019 meeting of the Advisory Committee on Women Veterans. VA makes no changes to the rule based on this comment.

Neither the testimony presented during the June 2022 legislative hearing before the House of Representatives Veterans Affairs Committee Subcommittee on Health nor the minutes from the August 2019 meeting of the Advisory Committee on Women Veterans suggests that VA lacks authority under 38 U.S.C. 1710 to provide the health care services permitted under the IFR. The passage that the commenter cites from the Advisory Committee on Women Veterans meeting minutes refers to language from page 20 of the August 2019 Advisory Committee on Women Veterans meeting minutes, which refers to an update on the Committee's recommendation that VA pursue a regulatory change to remove the exclusion of abortions in cases of threat to the life of the mother, sexual assault, and incest from the medical benefits package. The minutes state:

VA has never indicated that it lacks statutory authority to include abortion counseling and abortions in its medical benefits package in a circumstance in which the VA Secretary determined that such care was needed. And notably, VA made this statement in response to ACWV's recommendations before the Supreme Court issued its decision in Dobbs .

In addition, during the June 2022 legislative hearing, VA was discussing a single, standalone bill, H.R. 345, that would have overridden VA's regulatory exclusion of abortion counseling by requiring the Department to provide this service to a veteran as appropriate. VA stated, “[T]he bill would not authorize VA to provide abortions; it would only allow VA to provide patient education.” This statement does not mean that VA otherwise lacks authority to provide abortions, merely that VA was providing testimony on a legislative measure that, if enacted, would have only overridden VA's then-exclusion of abortion counseling codified in VA regulations. VA also notes that such legislative discussions in 2022 do not provide a basis to narrowly construe the scope of VA's pre-existing statutory authority. See, e.g., Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1747 (2020) (“[S]peculation about why a later Congress declined to adopt new legislation offers a `particularly dangerous' basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.” (citing Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 650 (1990))).

One commenter, in further support of the assertion that VA did not have legal authority to issue the IFR, cited recent Supreme Court case law to argue that Federal agencies exceed their statutory authorities when they purport to find novel powers in long extant Federal statutes. West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022); National Federation of Independent Business v. Dept. of Labor, 142 S. Ct. 661 (2022). But those cases are inapposite because, as discussed, clear statutory authority supports this rulemaking. Pursuant to VA's general treatment authority provided by Congress, VA “shall furnish” specified veterans with “hospital care and medical services which the Secretary determines to be needed.” 38 U.S.C. 1710(a)(1)-(2). For other veterans, the Secretary “may,” subject to certain limitations, “furnish hospital care” and “medical services . . . which the Secretary determines to be needed.” 38 U.S.C. 1710(a)(3). VA issued the IFR because the Secretary determined that it is “essential for the lives and health of our veterans that abortions be made available if determined needed by a health care professional when: (1) the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term; or (2) the pregnancy is the result of an act of rape or incest.” 87 FR 55288. The Secretary also determined that “abortion counseling is needed so that veterans can make informed decisions about their health care.” Id. at 55292. The Secretary thus “determined that such medical care is `needed' within the meaning of VA's general treatment authority,” which “means that such care may be provided if an appropriate health care professional determines that such care is needed to promote, preserve, or restore the health of the individual and is in accord with generally accepted standards of medical practice.” Id. at 55288. See also 38 U.S.C. 1781(a); 38 CFR 17.270(b); 87 FR 55290-92 (discussing the VA Secretary's authority and determinations regarding CHAMPVA beneficiaries).

The Secretary has previously exercised authority under 38 U.S.C. 1710 to amend 38 CFR 17.38 to add new services to the medical benefits package services. For example, VA added to the medical benefits package pregnancy and delivery services to the extent authorized by Federal law. See 64 FR 54217. VA also added newborn care as a service provided under the medical benefits package. See 76 FR 78569. Such care was authorized pursuant to 38 U.S.C. 1710 and 1786.

The decisions the commenter cites also are distinguishable because, as discussed above, this is not the first time that VA has relied on relevant statutory authority in this manner. As stated before, VA policy authorized the provision of certain abortions. VHA Policy, Manual M-2, Professional Services Part XIV, Surgical Service, Change 27, paragraph 9.02a. (July 26, 1977, partial rescission, expired on Jan. 7, 1999)) (authorizing “therapeutic . . . abortion as a proper treatment” in some circumstances pursuant to the procedures described therein).

The determination not to continue this medical service when the medical benefits package regulation was established in 1999 was based on a VA policy decision, not because VA's general treatment authority did not cover this medical service. Indeed, the fact that abortion was specifically excluded from the medical benefits package under 38 CFR 17.38(c) makes clear that VA has long held the position that abortion and abortion counseling is medical care that the Secretary is statutorily authorized, pursuant to his discretion, to include in the medical benefits package under § 17.38(a). Although VA maintained the exclusion on abortion care starting from the effective date of the medical benefits package in 1999 until 2022, as stated in the preamble to the IFR, Congress has authorized VA to amend its medical benefits package when the Secretary determines such change is warranted. Contrary to the commenter's assertion, VA's reading of 38 U.S.C. 1710 is not novel but supported by past readings of VA's medical care treatment authority; the commenter's cited case law is thus not applicable to this rulemaking. VA makes no changes to the rule based on this comment.

Many commenters generally stated that the IFR violates section 106 of the Veterans Health Care Act of 1992 (VHCA), Public Law (Pub. L.) 102-585, 106 Stat. 4943, and that therefore VA should rescind the IFR. VA does not make any changes to the rule or rescind the IFR based on these comments. As explained in the preamble to the IFR, the VHCA barred the provision of abortion, infertility, and much of prenatal and delivery care but only under section 106 of the VHCA. It did not limit VA's authority to provide such services under any other statutory provision such as 38 U.S.C. 1710 or 38 U.S.C. 1712. Public Law 102-585, sec. 106(a). See 87 FR 55288-289. Moreover, in 1996, the Veterans' Health Care Eligibility Reform Act effectively overtook section 106 of the VHCA by enacting major changes to eligibility for VA health care, including by amending 38 U.S.C. 1710, and directing VA to establish a system of patient enrollment to manage the provision of care. See 87 FR 55289. The purpose behind eligibility reform was to replace the old system with a system where an enrolled veteran could receive whatever medical care and services are deemed needed. See House of Representatives Report No. 104-690, at 4 (1996). Consequently, for decades, VA has offered general pregnancy care and certain infertility services under 38 U.S.C. 1710, despite the VHCA's prohibition on providing such services under section 106. Id. VA has not relied on section 106 of the VHCA to provide such services or any other services.

Other commenters more specifically asserted that section 106 of the VHCA was still operable to prohibit abortion in VA health care programs, and provided more specific supporting rationale, as addressed below.

Some commenters asserted that, under traditional rules of statutory construction, the more specific and targeted treatment of abortion in section 106 of the VHCA governs over the more general treatment of health care in the Veterans Health Care Eligibility Reform Act of 1996 and 38 U.S.C. 1710. As further explained below, this canon of construction is applicable when two statutory provisions are in conflict, but section 106 does not conflict with VA's authority to provide abortions under other statutory provisions such as 38 U.S.C. 1710 and 1712 (former medical services authority). Consequently, the focus of commenters on the general versus specific canon is mistaken, and VA does not make changes to the rule based on these comments.

By its plain terms, section 106 of the VHCA does not circumscribe the Secretary's authority to determine what hospital care and medical services are needed under 38 U.S.C. 1710. Section 106 affirmatively authorized VA to provide certain healthcare services to women, including “[g]eneral reproductive health care,” but provided that this authorization for general reproductive health care did “not includ[e] under this section infertility services, abortions, or pregnancy care (including prenatal and delivery care), except for such care relating to a pregnancy that is complicated or in which the risks of complication are increased by a service-connected condition.” (emphasis added). The phrase “under this section” means that while section 106 bars the provision of any abortion or infertility or general pregnancy services under section 106 of the VHCA, it does not limit VA's authority to provide such services under any other statutory provision, such as VA's general treatment authority, 38 U.S.C. 1710. See, e.g., Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C., _, at *1, 7-8 (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf (noting that the IFR represented a reasonable exercise of the VA Secretary's discretion to provide medical services).

Accordingly, the commenters' reliance on the “general/specific canon” is misplaced. Moreover, as the Supreme Court has acknowledged, the general/specific canon is not an absolute rule and can be overcome by textual indications that point to the general and specific provisions coexisting, rather than the specific governing the general. See RadLAX Gateway Hotel v. Amalgamated Bank, 566 U.S. 639, 646 (2012). In this case, section 106 specifies that abortions cannot be provided “under this section” of the VHCA, but it does not prohibit VA from providing abortions under other statutory provisions such as 38 U.S.C. 1710 and 1712 (former medical services authority).

VA's interpretation of section 106 in this respect has been long-standing. VA has never interpreted section 106 to prohibit the Department from providing health care under other statutory authorities. For example, as discussed above, VA continued to provide certain abortions as well as therapeutic surgical sterilizations, a type of infertility treatment, after the passage of section 106 and until promulgation of the final rule establishing VA's medical benefits package in October of 1999. See VHA Policy, Manual M-2, Professional Services Part XIV, Surgical Service, Change 27, paragraph 9.02a. (July 26, 1977, partial rescission, expired on Jan. 7, 1999) (authorizing “therapeutic . . . abortion as a proper treatment” in some circumstances pursuant to the procedures described therein).

A VA policy published in 1993 also demonstrates this long-standing interpretation of section 106. With VA's increased focus on health services available for women veterans, VA published VHA Directive 10-93-151, Health Care Services for Women Including General Reproductive Health Care for Women Veterans under the Women Veterans Health Program Act of 1992 (Pub. L. 102-585) (dated Dec. 6, 1993, rescinded Dec. 29, 1994). In para. 2.b. of this 1993 policy, VA squarely addressed section 106's relation to other treatment laws. Specifically, VA explained that the exclusions from “general reproductive healthcare” (set forth in section 106(a)(3)) “do not constitute a ban on the Secretary's authority to provide infertility or abortion services as otherwise authorized under 38 United States Code (U.S.C.) Chapter 17.” It also explained how the authorities granted in section 106 “are not new,” as VA medical centers “have provided cancer screening to women for some time,” and it further described how “general reproductive health care” is “within the purview of gynecology.” To this point, when later issuing the medical benefits package, VA included, within covered basic care, infertility services (such as reverse voluntary sterilization and infertility services other than in vitro fertilization) because they meet the criteria for inclusion, i.e., “care that is determined by appropriate healthcare professionals to be needed to promote, preserve, or restore the health of the individual and to be in accord with generally accepted standards of medical practice.” 64 FR 54207, 54210.

Similarly, VA has provided some infertility services (excluding in vitro fertilization (IVF) pursuant to 38 CFR 17.38(c)(2)) and pregnancy-related services under 38 U.S.C. 1710 for decades. See 87 FR 55289; see also 64 FR 54210; VHA Directive 10-93-151, December 6, 1993. Section 106 excludes “infertility services” and “pregnancy care” in addition to “abortion” from care provided under section 106. (We note that section 106 does not further define these terms.) Commenters' reliance on section 106 to object to VA's addition of abortion to care provided under 38 U.S.C. 1710 overlooks VA's longstanding provision of infertility services (excluding IVF) and pregnancy-related services under 38 U.S.C. 1710, which shows that section 106 does not limit VA's other healthcare authorities. And VA has long recognized that a veteran could be eligible for certain infertility services (excluding IVF) for a service-connected disability under (former) 38 U.S.C. 1712 (former authority under which outpatient medical services were provided prior to 1996), even though that veteran would have been ineligible for infertility services under section 106 of the VHCA. 87 FR 55289.

The IFR explained that Congress enacted the VHCA at a time when “VA health care was subject to a patchwork of eligibility criteria, and care was largely linked only to service-connected conditions,” and how “[t]he VHCA, in relevant part, was designed to improve the health care services available to women veterans.” 87 FR 55288-89. Section 106 of the VHCA, however, was effectively overtaken by a subsequent statutory and regulatory overhaul of VA's medical benefits system, which extended eligibility for hospital care and medical services. The Veterans' Health Care Eligibility Reform Act of 1996 established a system in which an eligible veteran could receive whatever medical care and services the Secretary determines are “needed.” 38 U.S.C. 1710; see, e.g., H.R. Rep. No. 104-690, at 4 (1996); see also id. (“While the new standard is a simple one, more importantly, it employed a clinically appropriate `need for care' test, thereby ensuring that medical judgment rather than legal criteria will determine when care will be provided and the level at which that care will be furnished.”); id. at 13 (“[The Act] would substitute a single, streamlined eligibility provision—based on clinical need for care—for the complex array of disparate rules currently governing veterans' eligibility for hospital and outpatient care.”). As explained in the IFR, “[t]he Veterans' Health Care Eligibility Reform Act effectively overtook section 106 of the VHCA,” and “section 106's prohibition on providing certain services `under this section' simply is no longer operative.” 87 FR 55289-90.

Some commenters further asserted that VA's interpretation of the phrase “but not including under this section” in section 106 of the VHCA, as reiterated in the IFR (87 FR 55289), was invalid, arguing that such language does not limit abortion restrictions to only that healthcare for women veterans that was provided under section 106. In support of this assertion, the commenters proffered that certain prefatory language in section 106(a) qualifies the “under this section” language in section 106(a)(3) such that the exclusion on abortions there must be read to apply to all hospital care and medical services under chapter 17 of title 38.

VA does not make changes to the rule based on these comments, which misunderstand VA's statutory authority. The VHCA, in relevant part, was designed to improve the health care services available to women veterans. 102 Cong. Rec. 32,367 (1992). Section 106(a) of the VHCA stated that “[i]n furnishing hospital care and medical services under chapter 17 of title 38, United States Code,”—prefatory language applicable to all of section 106—VA could provide “women” with “[p]apanicolaou tests (pap smears),” “[b]reast examinations and mammography,” and “[g]eneral reproductive health care . . . , but not including under this section infertility services, abortions, or pregnancy care (including prenatal and delivery care), except for such care relating to a pregnancy that is complicated or in which the risks of complication are increased by a service-connected condition.” Public Law 102-585, sec. 106(a).

As explained above, the VHCA has been effectively overtaken by laws that Congress has subsequently enacted. But even taking section 106 on its own terms, the commenters' interpretation of section 106(a)'s prefatory language would render the important “under this section” qualifier in section 106(a)(3) a nullity, contrary to longstanding precedent. Nat'l Ass'n of Mfrs. v. Dep't of Def., 583 U.S. 109, 128-29 (2018) (“As this Court has noted time and time again, the Court is `obliged to give effect, if possible, to every word Congress used.' ” (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)). If section 106(a)'s prefatory language precluded VA from providing abortion care under its other statutory authorities, then section 106(a)(3)'s “under this section” qualifier would be “a dead letter.” United States v. Atl. Rsch. Corp., 551 U.S. 128, 137 (2007). By contrast, VA's longstanding interpretation of section 106 faithfully reads the statute “ `as a whole.' ” Id. at 135 (quoting King v. St. Vincent's Hospital, 502 U.S. 215, 221 (1991)). In addition, VA finds support for this in the legislative history accompanying the enactment of section 106. See Joint Explanatory Statement on H.R. 5193, 1992 U.S.C.C.A.N. 4186, 4189-90 (noting “[t]he inclusion of the phrase `under this section' underscores the intent of the Committees not to limit such authority as the Secretary may have to provide any infertility services under Chapter 17.”). As explained, moreover, the commenters' interpretation is inconsistent with the plain meaning (and VA's decades-long interpretation) of the phrase “under this section.”

Commenters asserted that section 106 of the VHCA remains in effect to prohibit VA from furnishing the health care services permitted under the IFR, citing as evidence the proposition that VA required a special amendment, the “Murray Amendment,” to carve out an exception from section 106 of the VHCA so that VA could provide IVF services. The Murray Amendment is a reference to section 260 of Public Law 114-223, Division A, title II, enacted on September 29, 2016, and renewed in subsequent fiscal years. Section 260(a)(1) of Public Law 114-223 provides, notwithstanding any other provision of law, that the amounts appropriated or otherwise made available to VA for the Medical Services account may be used to provide fertility counseling and treatment using assisted reproductive technology to a covered veteran or the spouse of a covered veteran, subject to certain statutory and regulatory limitations.

VA does not make changes to the rule based on these comments. VA disagrees with the commenters' assertion that independent authority to provide IVF care was needed to supersede section 106. The Murray Amendment established new authority to provide fertility counseling and treatment using assisted reproductive technology not only to a covered veteran but also to the spouse of a covered veteran. It was needed because 38 U.S.C. 1710 does not extend, and never has extended, to a veteran's spouse. See 38 U.S.C. 1710 (referring only to veterans) and 38 U.S.C. 1781 through 1789 (VA's statutory authorities to provide health care to persons other than veterans, which do not extend IVF care to non-veterans). Independent authority was needed to authorize VA to also include the spouses of covered veterans in the VA-furnished IVF episode of care. But the Murray Amendment was not necessary to enable VA to provide infertility services to the veterans themselves under 38 U.S.C. 1710. And as explained above, section 106 has no impact on VA's authority to provide medical services pursuant to section 1710 or any statutory authority other than section 106 itself. In short, the Murray Amendment did not and does not implicate section 106 of the VHCA.

Some commenters asserted that section 106 of the VHCA must prohibit VA from furnishing the health care services permitted under the IFR because the Deborah Sampson Act of 2020 (Pub. L. 116-315, title V, subtitle A) defined “health care” as “the health care and services included in the medical benefits package provided by the Department before January 5, 2021,” sec. 5101 of Public Law 116-315, and on January 4, 2021, the health care and services included in the medical benefits package provided by the Department did not include abortion or abortion counseling. The commenters argued that Congress thus approved of the exclusion of abortion and abortion counseling.

VA does not make changes to the rule based on these comments. The IFR explained that the Deborah Sampson Act of 2020, Public Law 116-315, title V, section 5001 (2021) “created a central office to, inter alia, `monitor[ ] and encourag[e] the activities of the Veterans Health Administration with respect to the provision, evaluation, and improvement of health care services provided to women veterans by the Department.' ” 87 FR 55289 (quoting 38 U.S.C. 7310(b)(1)) (alterations in original). Congress defined “health care” for these purposes as “the health care and services included in the medical benefits package provided by the Department as in effect on the day before the date of the enactment of this Act [Jan. 5, 2021].” Id. (quoting 38 U.S.C. 7310 note). At the time, the medical benefits package included (and still includes) care that would have been excluded under the commenters' interpretation of section 106 of the VHCA, such as prenatal and delivery services.

The IFR stated that “[g]iven that VA's medical benefits package as of that date included services that were excluded from the coverage of Section 106 of the VHCA, Congress ratified VA's interpretation that it may provide for these services pursuant to its authority under 38 U.S.C. 1710, notwithstanding section 106. Indeed, the fact that the Deborah Sampson Act of 2020 did not reference section 106 of the VHCA and only referenced VA's medical benefits package shows that Congress did not interpret section 106 of the VHCA as a limitation on VA's authority to provide care to `women veterans.' ” 87 FR 55289.

Contrary to the commenter's assertion, the fact that VA had not, in its discretion, exercised its authority at the time of the Act to provide abortions or make exceptions to the regulatory exclusion on abortion does not mean that VA lacks statutory authority under 38 U.S.C. 1710 to determine that abortions in some cases constitute needed care and to accordingly amend its exclusion by regulation. As VA explained in the IFR, the Deborah Sampson Act of 2020 recognized 38 U.S.C. 1710 as a separate treatment authority unaffected and not limited by section 106. In fact, the terms of 38 U.S.C. 7310A(g)(2) as added by the Deborah Sampson Act of 2020 define, for purposes of VA's annual reporting requirement, gender-specific services to include: “mammography, obstetric care, gynecological care, and such other services as the Secretary determines appropriate,” some of which VA would not have authority to provide “under the commenters' interpretation of section 106. See also supra I.B.2. Thus, section 106 and its limits on certain care under section 106 of Public Law 102- 585 were clearly not seen by Congress in promulgating the Deborah Sampson Act of 2020 as having any effect on VA's exercise of authority under 38 U.S.C. 1710.

Nothing in the Deborah Sampson Act of 2020 prohibits VA from removing exclusions from the medical benefits package under 38 U.S.C. 1710. VA recognizes that 38 U.S.C. 7310, Note, (Pub. L. 116-315, title V, section 5101(b)(2)) provides that: “The references to health care and the references to services in sections 7310 and 7310A of title 38, United States Code, as added by paragraph (1), are references to the health care and services included in the medical benefits package provided by the Department as in effect on the day before the date of the enactment of this Act [Jan. 5, 2021].” Congress did not, through that language, freeze in place the types of medical services that VA is authorized to provide under its general treatment authorities. Section 7310 of title 38, U.S.C. relates to the establishment of the Office of Women's Health within VHA and its mission, and 38 U.S.C. 7310A relates to annual reports on Women's Health to be submitted to Congress. Nothing in either statute prohibits VA from expanding the medical benefits package or services or from providing additional information beyond what is required under 38 U.S.C. 7310 and 7310A. And these sections impose no limits on VA's general treatment authority in 38 U.S.C. 1710.

To the contrary, some of the functions of the Office of Women's Health set forth in 38 U.S.C. 7310(b) are to promote the expansion and improvement of clinical activities of VHA with respect to the health care of women veterans and to carry out such other duties as the Under Secretary for Health may require. On its face, the function of the Office to “expand and improve” clinical activities of VHA contemplates VA's authority to modify the medical benefits package to include additional services with respect to the health care of women veterans.

Some commenters asserted that section 106 has not been expressly repealed and further that repeals by implication are not favored, citing Branch v. Smith, 538 U.S. 254, 273 (2003), and Posadas v. National City Bank, 296 U.S. 497 (1936). VA does not make any changes to the rule based on these comments.

At the outset, VA notes that this issue is immaterial because, even if section 106 remained in force, it would not constrain VA's authority to provide services (whether abortions, prenatal care, or other services) limited under section 106 but authorized under other statutory provisions such as 38 U.S.C. 1710 and former 38 U.S.C. 1712. Rather, the limitation in section 106 regarding care “under this section” applies only to section 106.

Regardless, VA disagrees with commenters that section 106 remains in force. As discussed above and in the preamble to the IFR, the Veterans' Health Care Eligibility Reform Act effectively overtook section 106 of the VHCA by establishing a new standard to focus on medical necessity as “the sole criterion of eligibility for VA hospital care and medical services.”  1 The “need for care” test was meant to ensure “that medical judgment rather than legal criteria will determine when care will be provided and the level at which that care will be furnished.”  2 To the extent the commenters would construe section 106 of the VHCA to restrict VA's authority to provide a specific type of health care or service under separate statutory authorities, regardless of a finding of medical need, that restriction would irreconcilably conflict with VA's furnishing of any needed health care or services under 38 U.S.C. 1710. Indeed, for decades, VA has offered general pregnancy care and certain infertility services under 38 U.S.C. 1710 and has not relied on section 106 of the VHCA to provide such services or any other services.

Many commenters generally opined that the IFR violates State laws. VA does not make changes to the rule based on these comments.

The Supremacy Clause of the U.S. Constitution, U.S. Const. art. VI, cl. 2., generally prohibits States from interfering with or controlling the operations of the Federal government, and therefore immunizes the Federal government from State laws that directly regulate it. “[W]hen a federal agency `perform[s] a federal function pursuant to a law validly enacted by Congress[,] . . . under the Supremacy Clause, the states may not prohibit or, by regulation, significantly burden the manner of its execution without the consent of the United States.' ” Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C., _, at *4 (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf . Applying this principle to VA's IFR, the Department of Justice's Office of Legal Counsel concluded that “states may not restrict VA and its employees acting within the scope of their federal authority from providing abortion services as authorized by federal law, including VA's rule.” Id. at *10.

Moreover, VA promulgated a regulation at 38 CFR 17.419 that explicitly preempts any State laws, rules, regulations, or requirements that conflict with a VA health care professional's practice within the scope of their VA employment. As explained in the IFR, consistent with § 17.419, VA has determined that State and local laws, rules, regulations, or requirements, to the extent those laws unduly interfere with Federal operations and the performance of Federal duties, are preempted. That includes laws that States and localities might attempt to enforce in civil, criminal, or administrative matters against VA employees. State and local governments lack legal authority to enforce such laws, rules, regulations, or requirements in relation to health care and medical services provided by VA employees acting within the scope of their VA authority and employment.

One commenter asserted that VA has no basis in Federal law to claim “blanket preemption” in States that prohibit or restrict abortion, and other commenters relatedly stated that VA must be specific with regards to its claim of Federal supremacy. Such comments noted specific kinds of State laws that they asserted VA must either adhere to or demonstrate are explicitly preempted. Other commenters stated that Federal agencies cannot preempt State law unless an explicit conflict exists.

VA does not make changes to the rule based on these comments. It is not clear what the commenter meant by “blanket preemption.” VA has been specific as to the scope of preemption; as VA previously confirmed in 38 CFR 17.419, and reiterated in the IFR, VA health care professionals may practice their health care profession consistent with the scope and requirements of their VA employment, notwithstanding any State law or license, registration, certification, or other requirements that unduly interfere with their practice. VA's regulation provides that, in order to “provide the same complete health care and hospital service to beneficiaries in all States as required by 38 U.S.C. 7301, conflicting State laws, rules, regulations, or requirements pursuant to such laws are without any force or effect, and State governments have no legal authority to enforce them in relation to actions by health care professionals within the scope of their VA employment.” 38 CFR 17.419. Consistent with the Supremacy Clause and § 17.419, the IFR further explained that a State or local civil or criminal law that restricts, limits, or otherwise impedes a VA professional's provision of needed medical care within the scope of their VA employment, including the health care services permitted under the IFR, would be preempted. VA employees, including health care professionals who provide care and VA employees who facilitate that health care, such as VA employees in administrative positions who schedule abortion procedures and VA employees who provide transportation to the veteran or CHAMPVA beneficiary to the VA facility for reproductive health care, may not be held liable under State or local law or regulation for reasonably performing their Federal duties.

In response to comments that raised specific State requirements related to abortion, and further suggested that VA must show whether such requirements are specifically preempted, we do not make changes. As a general matter, VA determines whether a State law “unduly interferes on a case-by-case basis.” See Authority of VA Professionals to Practice Health Care, 85 FR 71838, 71842 (Nov. 12, 2020); Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C., _, at *10 (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf . Accordingly, consistent with VA's existing regulations and the authorities discussed above, any State and local laws and regulations that VA determines would prevent or unduly interfere with VA health care professionals providing needed care as permitted by this rule, would be preempted.

Several commenters referenced a court case related to HHS's interpretation of the Emergency Medical Treatment and Labor Act (EMTALA), which VA believes meant to reference an injunction issued by the U.S. District Court for the Northern District of Texas, Texas v. Becerra, 623 F. Supp. 3d 696 (N.D. Tex. 2022), aff'd, 89 F.4th 529 (5th Cir. 2024), where the district court was interpreting the specific language of this different statute that applies to certain hospitals that receive Medicare funding. The court was not interpreting VA's statutory authority, or related statutory language applicable here, and its decision and reasoning are not applicable to VA's IFR.

One commenter asserted, without any supporting authority, that VA is required to show a compelling interest to preempt State laws. As VA explained in the IFR, pursuant to its authorities in 38 U.S.C. 1710 and 1781, VA implemented the IFR to avert imminent and future harm to veterans and CHAMPVA beneficiaries whose interests Congress entrusted VA to serve. As explained above, 38 CFR 17.419(c) preempts “conflicting State laws, rules, regulations, or requirements pursuant to such laws” to the extent the State law unduly interferes with VA's ability “provide the same complete health care and hospital services to beneficiaries in all States” including, but not limited to, abortion. VA takes no action based on this comment.

Some commenters stated that the Dobbs decision delegated abortion matters to States rather than the Federal government, and further that the Tenth Amendment of the United States Constitution limits VA's authority to preempt State law. VA takes no action based on these comments. The Dobbs decision overturned Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and in no way affects VA's Federal statutory authority to develop regulations and policy related to the agency's own provision of needed medical care, including the health care services permitted under the IFR. VA furnishes hospital care and medical services determined to be needed pursuant to VA's general treatment authority for veterans (38 U.S.C. 1710), and pursuant to regulation through VA's medical benefits package (38 CFR 17.38). VA has determined that the health care services permitted by the IFR are needed. Similarly, VA has determined that providing access to such care is medically necessary and appropriate to protect the health of CHAMPVA beneficiaries. See 38 U.S.C. 1781; 38 CFR 17.270(b) (defining “CHAMPVA-covered services and supplies” as “those medical services and supplies that are medically necessary and appropriate for the treatment of a condition and that are not specifically excluded under [38 CFR 17.272(a)(1)] through (84)”). As explained above, the Supremacy Clause of the United States Constitution prohibits states from restricting Federal agencies and their employees acting within the scope of their Federal authority from providing abortion services. See generally Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C., _, (Sept. 21, 2022), https://www.justice.gov/d9/2022-11/2022-09-21-va_immunity_for_abortion_services.pdf .

The Tenth Amendment of the United States Constitution provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. VA is a Federal health care system, the operations of which are governed by Federal law, consistent with title 38, United States Code. VA's authority to furnish health care to veterans and CHAMPVA beneficiaries has been granted by Federal statute as described above. VA's issuing of the IFR does not encroach on any rights reserved to the States or to the people and is not a violation of the Tenth Amendment to the United States Constitution. The statement of preemption of conflicting State law under the IFR is consistent with 38 CFR 17.419(c) and lawful pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2.

Commenters alleged that this rule violates 10 U.S.C. 1093 and that VA cannot or should not provide broader access to abortion counseling and abortions than DoD. Multiple of these commenters further asserted that it is hard to imagine that Congress intended for former members of the armed services and their dependents to have access to abortion under VA programs when current service members do not have such access under DoD programs, and one commenter incorrectly stated that VA Medical Centers are facilities within the control of DoD. VA does not make changes to the rule based on these comments.

Section 1093 of title 10 of the U.S. Code establishes that DoD may not use funds or facilities “to perform abortions except where the life of the mother would be endangered if the fetus were carried to term or in a case in which the pregnancy is the result of an act of rape or incest.” Section 1093 applies only to the use of DoD funds and facilities, not to VA funds and facilities. VA notes, however, that the terms of 10 U.S.C. 1093 conflict with the assertions made by some commenters that active-duty members of the armed services can never receive abortions under DoD programs.

To the extent that some of these commenters raised the issue of dependents of service members having access to services in VA programs that they would not have under DoD programs for dependents, the statute governing VA's coverage for CHAMPVA beneficiaries specifically recognizes the possibility of differences in what care is covered under this VA program as opposed to the care covered under the similar DoD program, i.e., TRICARE (Select). Congress did not require that VA furnish identical medical benefits to those not eligible for TRICARE (Select). Rather, the law directs VA to provide CHAMPVA beneficiaries with medical care “in the same or similar manner and subject to the same or similar limitations as medical care” furnished to DoD TRICARE Select beneficiaries. 38 U.S.C. 1781(b) (emphases added). Indeed, prior to the IFR, CHAMPVA was not identical to TRICARE (Select). See, e.g., 87 FR 55290. For example, the former did not include access to abortions in cases of rape or incest, while the latter did. The IFR brought CHAMPVA more in line with TRICARE (Select) in this regard. The commenter does not address the statute's repeated use of the phrase “or similar.” That text recognizes differences may exist between the two programs' respective beneficiary populations and their needs. As VA explained in the IFR, VA has previously regulated to provide CHAMPVA benefits beyond those benefits offered by TRICARE (Select) if providing such health care would better promote the long-term health of CHAMPVA beneficiaries. 87 FR 55290. Further, CHAMPVA beneficiaries (unlike TRICARE (Select) beneficiaries) include family caregivers of veterans, not just eligible dependents. 38 U.S.C. 1720G(a)(3)(A)(ii)(IV). Consistent with the statute's plain meaning, VA provides CHAMPVA beneficiaries certain care that is “similar,” but not necessarily identical, to care provided to beneficiaries of TRICARE (Select). See, e.g., 73 FR 65552 (November 4, 2008) (adding coverage for medically necessary prostheses because of significant conditions and removing exclusion of enuretic devices despite each not being covered by TRICARE (Select)); 87 FR 41594 (July 13, 2022) (providing coverage for annual physical exams, even though excluded in TRICARE (Select)).

Commenters stated that VA is barred from providing or paying for abortion or abortion counseling pursuant to the Antideficiency Act. VA does not make changes to the rule based on these comments. The Antideficiency Act, 31 U.S.C. 1341(a), generally prohibits Federal agencies from making expenditures in excess of available appropriations or in advance of appropriations. Per 31 U.S.C. 1349(a) and 1350, there are penalties associated with violations of the Antideficiency Act.

In this case, the Antideficiency Act is not implicated because Congress appropriated funds to VA to perform authorized services. Per title II of division J of the Consolidated Appropriations Act, 2021 (Pub. L. 116-260), title II of division J of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103) and title II of division J of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), funds appropriated for fiscal years 2022, 2023, and 2024 to the Medical Services appropriations account have been made available “[f]or necessary expenses for furnishing, as authorized by law, inpatient and outpatient care and treatment to beneficiaries of the Department of Veterans Affairs and veterans described in section 1705(a) of title 38, United States Code, including care and treatment in facilities not under the jurisdiction of the Department.” The Medical Community Care appropriations account for fiscal years 2022, 2023, and 2024, has been made available “[f]or necessary expenses for furnishing health care to individuals pursuant to chapter 17 of title 38, United States Code, at non-Department facilities.” Title II, Division J, Consolidated Appropriations Act, 2021 (Pub. L. 116-260); Title II, Division J, Consolidated Appropriations Act, 2022 (Pub. L. 117-103); Title II, Division J, Consolidated Appropriations Act, 2023 (Pub. L. 117-328). More specifically, the Medical Services appropriation is for necessary expenses of inpatient and outpatient VA beneficiary care provided by VA at VA facilities and Government facilities for which VA contracts. The Medical Community Care appropriation is for necessary expenses of providing healthcare to VA beneficiaries in the community—facilities other than VA facilities and Government facilities for which VA contracts.

As explained, an abortion is authorized care under 38 U.S.C. 1710, the IFR, and the medical benefits package when a health care professional determines it to be needed and in accord with generally accepted standards of medical practice and: (1) the life or the health of the pregnant veteran would be endangered if the pregnancy were carried to term; or (2) the pregnancy is the result of an act of rape or incest. Expenditures associated with such authorized care may be made from VA's Medical Services and—when appropriate—Medical Community Care accounts.

The IFR also authorizes the provision of medically necessary abortions and abortion counseling under VA's CHAMPVA program, 38 U.S.C. 1781, under the circumstances described in the rule. Medical Services and Medical Community Care account funds are used for the CHAMPVA program and may therefore be used for authorized counseling and care. Such expenditures are proper and do not violate VA's appropriations act or the Antideficiency Act.

Some commenters stated that VA is barred from providing or paying for the health care services permitted under the IFR pursuant to what is referred to as the Hyde Amendment. VA does not make changes to the rule based on these comments.

VA is not subject to the Hyde Amendment, which addresses Federal funds available to the Departments of Labor, Health and Human Services, and Education in legislation on annual appropriations. Division H of Public Law 117-328; see also 87 FR 55290. Accordingly, VA is not barred by the Hyde Amendment from spending its funds to provide authorized health care services permitted by the IFR.

Some commenters asserted that the IFR violates the Assimilative Crimes Act, 18 U.S.C. 13, which allows the Federal government to prosecute a State crime as a Federal offense in limited circumstances when such offense has been committed on an area within the jurisdiction of the United States known as a Federal enclave and is not otherwise a Federal offense. These commenters appeared to assert that if a State makes it a crime to perform an abortion, any abortion performed in that State, in the absence of a Federal law prohibiting such performing of an abortion, would be unlawful under 18 U.S.C. 13 if performed on Federal property. Relatedly, one commenter alleged that the rule conflicts with 38 CFR 1.218(c)(3), which states that nothing contained in the rules and regulations set forth under 38 CFR 1.218(a) shall be construed to abrogate any other Federal laws or regulations, including assimilated offenses under 18 U.S.C. 13, or any State or local laws and regulations applicable to the area in which the property is situated.

VA does not make changes to the rule based on these comments. As some of these commenters acknowledged, the Department of Justice's Office of Legal Counsel (OLC) has examined whether the Assimilative Crimes Act would apply to Federal employees performing their duties in a manner authorized by Federal law, while on a Federal enclave, which may include VA hospitals. OLC concluded that Federal employees engaging in such conduct would not violate that statute and could not be prosecuted by the Federal government under that law. Application of the Assimilative Crimes Act to Conduct of Federal Employees Authorized by Federal Law, 46 Op. O.L.C. _ (Aug. 12, 2022), https://www.justice.gov/olc/file/1527726/download . The reasoning in that opinion applies to VA employees on Federal enclaves who are providing care in accordance with their Federal duties authorized under the IFR. The commenter did not provide any response to this analysis, other than to reiterate the commenter's view that Federal law “places significant limitations on abortions in VA programs.” As explained, however, VA has statutory authority to provide the health care services permitted under the IFR.

Furthermore, the IFR is not in conflict with 38 CFR 1.218(c)(3), which provides, “Nothing contained in the rules and regulations set forth in paragraph (a) of this section shall be construed to abrogate any other Federal laws or regulations, including assimilated offenses under 18 U.S.C. 13 or any State or local laws and regulations applicable to the area in which the property is situated.” Paragraph (a) of such section describes rules and regulations that apply at a property under the charge and control of VA, and to persons entering such property, including, for example, conduct related to gambling, use of service animals, creation of disturbances, and vehicular and pedestrian traffic. 38 CFR 1.218(a). This provision is unrelated to matters of medical practice or the provision of medical benefits. It does not subject VA and its employees to State or other local restrictions on any form of medical care that VA staff are authorized to furnish, including VA's provision of health care services permitted under the IFR. Additionally, because the Assimilative Crimes Act has no application to VA employees practicing within the scope of their VA practice, as explained above, the portion of 38 CFR 1.218(c)(3) referring to the Act has no application to care provided under the IFR.

Commenters alleged that the IFR violates 18 U.S.C. 1461 and 1462. Section 1461, in pertinent part, prohibits the mailing of “[e]very article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” and “[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose.” Section 1462, in pertinent part, prohibits the knowing use of “any express company or other common carrier or interactive computer service” for transportation across State lines of “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use[.]” These commenters also alleged that violation of these laws then support offenses under 18 U.S.C. 1961(1)(B) and 18 U.S.C. 552 (prohibiting Federal employees from aiding and abetting persons engaged in violation of laws prohibiting dealing in, among other things, the means for procuring abortion).

VA does not make changes to the rule based on these comments because the IFR is consistent with 18 U.S.C. 1461. In December 2022, OLC concluded that 18 U.S.C. 1461 does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in every State may lawfully use such drugs, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully. See Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions, 46 Op. O.L.C., _, at 1 (Dec. 23, 2022), https://www.justice.gov/d9/opinions/attachments/2023/01/03/2022-12-23_-_comstock_act_1.pdf . In support of this conclusion, the OLC opinion explains that there are uses of these medications that State law does not prohibit, including mailing of abortion medications intended, for example, to be used pursuant to Federal authorities. Federal agencies, including VA, provide lawful abortions pursuant to their Federal authorities; therefore the mailing of abortion medications intended to be used lawfully pursuant to those authorities would not violate 18 U.S.C. 1461. This opinion further explains that the same analysis is applicable to the cognate provision 18 U.S.C. 1462. Id. at 2 n.3. Because any mailing or other transporting across State lines of certain medications or items under the IFR would not violate 18 U.S.C. 1461 or 1462, there is no subsequent potential offense under 18 U.S.C. 1961(1)(B) and 18 U.S.C. 552.

Commenters alleged that this rule violates the major questions doctrine, referencing West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022). Under such doctrine, an agency must identify clear congressional authorization for its exercise of authority in “ `extraordinary cases' in which the `history and the breadth of the authority that [the agency] has asserted,' and the `economic and political significance' of that assertion, provide a `reason to hesitate before concluding that Congress' meant to confer such authority.” Id. at 2608 [alterations in original]. VA does not make changes to the rule based on these comments. As explained above, VA has not found “a newfound power” in an “ancillary provision” of the Veterans' Health Care Eligibility Reform Act of 1996, as the Supreme Court found the Environmental Protection Agency had done with the Clean Power Plan. West Virginia, 142 S. Ct. at 2602, 2610. Congress expressly delegated to the Secretary of Veterans Affairs the authority to “furnish hospital care [and] medical services . . . which the Secretary determines to be needed.” 38 U.S.C. 1710(a)(1)-(3). Identifying the medical services “determine[d] to be needed” for veterans is clearly within VA's authority. As discussed above, prior to promulgation of the final rule establishing VA's medical benefits package in October of 1999, VHA Policy, Manual M-2, Professional Services Part XIV, Surgical Service, Change 27, paragraph 9.02a. (July 26, 1977, partial rescission, expired on Jan. 7, 1999), recognized the need for and authorized the provision of a “therapeutic . . . abortion as a proper treatment” in some circumstances pursuant to the procedures described therein. The IFR is thus a traditional exercise of VA's established authority to determine what medical services are “needed” and, therefore, to decide what specific medical services VA will cover or provide under the medical benefits package.

Additionally, Congress has directed VA to provide “for medical care” under CHAMPVA “in the same or similar manner and subject to the same or similar limitations as medical care is” provided under TRICARE (Select). As explained in the IFR, VA has previously deviated from TRICARE (Select) in amending its CHAMPVA regulations to provide services that best promote the long-term health of CHAMPVA beneficiaries while remaining sufficiently “similar” to TRICARE (Select). 87 FR 55290-55291. Thus, this IFR is also a traditional exercise of VA's authority to administer CHAMPVA and decide what medical services are medically necessary and appropriate for CHAMPVA coverage while remaining sufficiently “similar” to TRICARE (Select).

One commenter inquired what VA will do to comply with its obligations under the Born Alive Infants Protection Act of 2002, and further stated that VA fails to explain what policies and procedures are in place to ensure that any children born alive after attempted abortions are given appropriate medical care in the same manner as other children born alive. The Born-Alive Infants Protection Act of 2002, Public Law 107-207, was enacted August 5, 2002, and is codified at 1 U.S.C. 8. The Act clarifies that, for purposes of any Act of Congress or any ruling, regulation, or interpretation of the various Federal agencies, the meaning of the words “person,” “human being,” “child,” or “individual” “shall include any infant member of the species homo sapiens who is born alive at any stage of development.” VA is subject to, and will continue to comply with, the provisions found in 1 U.S.C. 8. Additionally, VA is authorized to provide certain health care services to a newborn child of a woman veteran receiving care from VA. 38 U.S.C. 1784A and 1786. VA does not make changes to the rule based on this comment.

VA issued an IFR, in which the changes to 38 CFR 17.38 and 17.272, were effective immediately upon publication, and the public comment period began on the date of publication. 87 FR 55287. VA found that good cause justified forgoing advance notice for public comment and a delayed effective date. 5 U.S.C. 553(b)(B), (d)(3). VA cited its urgent need to provide access to abortion counseling and to abortions in cases of rape or incest or where the life or health of the pregnant individual is in danger following Dobbs . After Dobbs, some States had begun to enforce existing abortion bans and restrictions on care and were proposing and enacting new bans and restrictions containing limited exceptions for medical necessity; some also included exceptions for pregnancy that is the result of rape or incest. These measures were creating urgent risks to the lives and health of pregnant veterans and CHAMPVA beneficiaries in those States. 87 FR 55294. VA received comments that opposed VA's issuance of an IFR based on general assertions that VA's good cause justification was insufficient, although only some of these comments directly addressed VA's good cause. VA notes at the outset that our request for comment in the IFR and issuance of this final rule have overtaken any assertions concerning a lack of good cause. In any event, VA addresses below the comments it received concerning VA's good cause for making the IFR effective immediately.

Some commenters asserted that VA's good cause justification was insufficient for general reasons unrelated to VA's rationales supporting good cause. Many of the duplicated form responses that VA received as comments asserted that the IFR violated the Administrative Procedure Act (APA) and stated that the APA requires that the public have an opportunity to provide comment on matters of public interest before a rule is effective. VA does not change course based on these comments. The APA, codified in part at 5 U.S.C. 553, generally requires that agencies publish substantive rules in the Federal Register for notice and comment and provide at least a 30-day delay before the rules become effective. 5 U.S.C. 553(b), (d). However, an agency may forgo prior notice if the agency for good cause finds that compliance would be impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)) and may also bypass the APA's 30-day delayed effective date requirement if good cause exists (5 U.S.C. 553(d)(3)), or if the rule “grants or recognizes an exemption or relieves a restriction” (5 U.S.C. 553(d)(1)). VA found good cause under 5 U.S.C. 553(b)(B), ((d)(3), and also explained that the IFR removed certain restrictions ( see 87 FR 55294-96), and therefore did not violate the APA in issuing the IFR.

Other commenters asserted that although a Federal agency is allowed to publish an IFR, VA did not demonstrate that it had good cause to do so. Because these commenters did not specifically assert or explain why they believed VA did not demonstrate good cause, VA does not change course based on these comments. As VA explained in the IFR, VA had good cause to make the IFR effective immediately because delaying its effectiveness would leave many veterans and CHAMPVA beneficiaries without access to needed and medically necessary and appropriate health care—abortions and abortion counseling that VA is able to provide under the IFR—thus putting their health and lives at risk. 87 FR 55295-96. Immediate effectiveness was critical following State actions to further ban or restrict abortion post- Dobbs. Id. These State bans and restrictions on abortion presented a serious threat to the health and lives of over one hundred thousand veterans and CHAMPVA beneficiaries who relied, or may rely in the future, on VA health care. Id. VA determined that such bans and restrictions would have an immediate detrimental impact on the lives and health of veterans and CHAMPVA beneficiaries who are unable to receive the care that was available in the community before the Dobbs decision, especially as State laws prompted providers to cease offering abortion services altogether. 87 FR 55295-55296. This detrimental impact is underscored by the potential harmful effects associated with being denied an abortion when an abortion is needed to protect the life or health of the pregnant individual or when the pregnancy is the result of an act of rape or incest. Id. As noted in the IFR, it was estimated that up to 53 percent of veterans of reproductive age may be living in States that either had already banned abortions or were soon expected to ban abortions, following Dobbs. 87 FR 55295. VA also estimated that nearly 50,000 CHAMPVA beneficiaries could have been impacted by such those then-current or expected bans. Id.

Some commenters asserted that the substantive provisions of the IFR were generally not in the public interest or in States' interests (for those States that have instituted more stringent restrictions on abortions or more burdensome requirements on abortion counseling), and therefore VA could not have provided adequate good cause. These commenters did not offer specific reasons why VA did not have good cause to issue the IFR; rather, they seemed to assert that because they deemed a substantive provision of an IFR to generally be against the public or States' interests, then a good cause justification must necessarily fail. In invoking the public interest prong of the good cause exemption, the question is not whether a substantive provision of a rule, itself, would be contrary to public interest in the minds of some, but whether following “ordinary procedures—generally presumed to serve the public interest—would in fact harm that interest.” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012). For the reasons explained in the IFR, VA provided good cause for why providing advance notice and comment would be contrary to public interest. See, e.g., 87 FR 55294-96.

Some commenters asserted that VA's good cause justification was insufficient for reasons more directly related to the reasons VA stated in finding good cause. These commenters did not agree with VA's statement of urgent need to provide access to the health care services permitted under the IFR following the ruling in Dobbs, which resulted in some States severely restricting and banning abortion. VA groups and summarizes such comments below.

Some commenters asserted that the IFR was not urgently needed because every, or nearly every, State that restricts abortion permits exceptions when the life of the pregnant individual would be endangered were the pregnancy carried to term, and further that some of those States also permit exceptions where the pregnancy was the result of rape or incest. These commenters generally seemed to assert that if many or enough of the States had similar exceptions for abortions as the IFR, then there could not be sufficient need among veterans to access the health care services permitted under the IFR from VA to support good cause.

VA does not change course based on these comments. The fact that some, but not all, States might permit similar access to care as VA is not sufficient to prevent endangerment to the life or health of pregnant individuals that VA serves. See 87 FR 55288 (concluding that care available under the IFR is needed and medically necessary and appropriate). In fact, even though some States may allow an abortion to prevent the endangerment to the life of a pregnant individual, they may not allow an abortion to prevent the endangerment to the health of a pregnant individual. When pregnant veterans and CHAMPVA beneficiaries face pregnancy-related complications that their VA health care providers have determined are putting their health or lives at risk or are pregnant due to an act of rape or incest, they must be confident that their providers can take the clinically necessary action to provide needed and medically necessary and appropriate health care. And even in States that restrict abortions subject to exceptions similar to VA's, abortion access is often subject to additional restrictions that VA, on the basis of its authorities and obligations, has not adopted, such as timeframe limitations, evidentiary requirements, or prerequisite procedures (such as mandatory waiting periods or required ultrasounds), which could delay delivery of care that is often time sensitive. VA must always ensure it can consistently meet the medical needs of veterans and CHAMPVA beneficiaries across its healthcare system. Even one State presents enough risk to the lives and health of veterans and CHAMPVA beneficiaries to support VA's good cause justification in the IFR. As the IFR states, “[a]llowing even one preventable death of a veteran or CHAMPVA beneficiary by limiting access to abortions is unacceptable.” 87 FR at 55296.

Commenters further asserted that VA's statements of good cause were not substantiated because VA did not cite specific cases where needed and medically necessary and appropriate care would not be permitted. In so doing, commenters argued that VA must conduct a more thorough analysis to more specifically identify those individuals who cannot get the care VA has found to be needed and medically necessary and appropriate. Those commenters are incorrect. VA explained that “certain States have begun to enforce abortion bans and restrictions on care, and are proposing and enacting new ones.” Id. at 55288; see also id. at 55293, 55295 (citing examples and describing the evolving legal landscape). VA also documented the pressing need to ensure that all of the veterans and CHAMPVA beneficiaries for which VA provides healthcare have access to needed and medically necessary and appropriate care. Id. at 55291-92.

Other commenters asserted that VA has not issued statements regarding, or otherwise does not have, a clear plan to implement the provisions of the IFR despite asserting an emergency to support good cause. These commenters seemed to argue that there can be no need to forgo notice and comment procedures and dispense with a delayed effective date if VA is not yet ready to implement the IFR on a large-scale level. That is incorrect: VA was prepared to offer health care services permitted under the IFR on the day the IFR was published.

To the extent commenters posit that abortion is harmful to patients or is never necessary—that abortions are, essentially, illegitimate medical services, thereby negating VA's good cause argument and grounds for publishing the IFR—the commenters failed to provide a rationale for, and to demonstrate the basis for, this position. The VA Secretary has determined that the health care services permitted under the IFR are needed pursuant to 38 U.S.C. 1710 and are medically necessary and appropriate pursuant to 38 U.S.C. 1781, as implemented by 38 CFR 17.270 et seq., and VA has authority to provide these services under the terms of the IFR, as explained there. As non-exhaustive examples, the IFR identified conditions such as “severe preeclampsia, newly diagnosed cancer requiring prompt treatment, and intrauterine infections, and . . . pre-existing conditions exacerbated by continuing the pregnancy,” for which pregnancy termination “may be the only treatment available to save the health or life of the pregnant individual.” 87 FR 55295. In States that restrict access to abortion services, treatment delayed so VA could seek prior public comment would have been treatment denied.

Other commenters asserted that the timing of VA's publication of the IFR, being two months after publication of the Dobbs decision (and four months after such decision “leaked” as stated in the comments) was too late to justify VA's statement of need in support of its good cause. In support of this assertion, these commenters proffered that because VA was aware that the Supreme Court could overturn Roe, prior to the Dobbs decision, and because some States had taken anticipatory action prior to the Dobbs decision, VA would have issued the IFR sooner if there were an actual emergent need. VA does not change course based on these comments. The administrative process for VA to weigh policy, make decisions, draft a rulemaking, and have that rulemaking clear all required reviews prior to publication in the Federal Register can routinely take substantial effort and time. Indeed, the Supreme Court has found that an agency taking two months to prepare a 73-page rule did not constitute “delay” inconsistent with the Secretary's finding of good cause. Missouri, 142 S. Ct. at 654. Here, the publication of the IFR was completed at the earliest possible time and ensures that, irrespective of contrary State laws post- Dobbs, veterans and CHAMPVA beneficiaries can receive access to the needed and medically necessary and appropriate health care services permitted under the IFR.

One commenter opined that the IFR lacked good cause because VA has always provided care to pregnant individuals in life-threatening circumstances, including treatment for ectopic pregnancies or miscarriages, which were covered under VA's medical benefits package prior to the IFR. In support, the commenter cited to Veterans Health Administration (VHA) Directive 1330.03, titled Maternity Health Care and Coordination, dated November 3, 2020. The commenter further stated that providing such lifesaving care to a pregnant individual is not an abortion and is already allowed. This commenter seemed to assert that because VA provided some lifesaving treatment to manage certain complications associated with pregnancy prior to the IFR, that there could not have been an emergency to warrant VA's issuance of the IFR. While VA agrees that the care identified by the commenter has been lawfully provided, as discussed herein and in the IFR (for example, see 87 FR 55291), there are many life- and health-endangering complications of pregnancy other than ectopic pregnancies and miscarriages where abortion would be the needed or necessary treatment, and prior to the IFR, VA's medical benefits package did not provide access to care in such circumstances.

One commenter opined that the IFR did not have good cause since it undermines what the commenter described as the “pro-life policy stance” of Congress and further disregards governmental interests, including “interest in safeguarding preborn human life”. VA disagrees with the commenter's assertion and implemented the IFR pursuant to the authority Congress granted VA to furnish eligible veterans and CHAMPVA beneficiaries with medical services that VA determines to be needed and medically necessary and appropriate. 38 U.S.C. 1710, 1781; 87 FR 55291-55293. The changes made by the IFR were within the scope of the authority Congress has provided to VA.

Commenters raised concerns with various aspects of the IFR being overly broad so as to allow for abortions for reasons beyond the circumstances stated in the IFR. VA summarizes and addresses those comments below.

One commenter opined that the IFR avoided clarity by not defining abortion. VA does not make changes to the rule based on this comment. VA does not specifically define in its regulations the other various types of care provided under the medical benefits package or covered by CHAMPVA. As the medical field is constantly evolving, attempting to define medical terms in regulation could be arbitrary or outdated based on evolving standards of practice and thus could result in unintended limitations on the provision of life and health-saving care. Therefore, and consistent with other treatments listed in such regulations, VA does not find it appropriate to define the term abortion in regulation.

Several commenters asserted that the term “health,” in the context of the exception permitting abortion if a health care provider determines that the “health” of the pregnant individual would be endangered were the fetus carried to term, was too broad in scope. Some asserted that the lack of definition for the term “health” means VA will provide abortions in all circumstances, or, essentially, allow for “elective abortions.” Other commenters more specifically asserted that the Supreme Court broadly defined “health” for purposes of abortion as “physical, emotional, psychological, familial, and the woman's age—relevant to the wellbeing of the patient. All these factors may relate to health.” Doe v. Bolton, 410 U.S. 179, 192 (1973). These commenters argue that a rule permitting abortion for reasons of health without further qualification or limitation could be interpreted in a way that increases access to abortions beyond the scope stated in the IFR.

VA does not make changes to the term “health” or further define or characterize it in regulation based on these comments. VA has existing statutory and regulatory authorities that establish when needed care provided under the medical benefits package may be provided to an individual veteran and when medically necessary services are covered by CHAMPVA.

As explained in the IFR, VA's general treatment authority requires the Secretary to determine what “hospital care and medical services” are “needed.” 38 U.S.C. 1710. Consistent with this authority and under the IFR, VA provides an abortion to a veteran only if an appropriate health care professional determines that such care is in accord with generally accepted standards of medical practice and is needed to promote, preserve, or restore the health of the individual, consistent with the definitions set forth by existing VA regulations. 38 CFR 17.38(b).

With respect to CHAMPVA, VA provides beneficiaries with medical services and supplies if the services and supplies are “medically necessary and appropriate for the treatment of a condition” and “not specifically excluded from program coverage.” See 38 CFR 17.272(a). With respect to abortions, VA would provide or reimburse for the care only if the life or the health of the pregnant beneficiary would be endangered if the pregnancy were carried to term or if the pregnancy is the result of an act of rape or incest. See id. at § 17.272(a)(64).

Because determining whether a pregnant individual's health is endangered necessarily requires an individualized assessment by a health professional, VA does not believe it is appropriate to define the term “health” in regulation. Attempting to define every single condition, illness, and other circumstance (and combination of such circumstances) that could be included under such a definition would likely be arbitrary and incomplete and thus could result in veterans and CHAMPVA beneficiaries not receiving needed and medically necessary and appropriate care.

One commenter asserted “the phrase `if determined to be needed by' a medical professional . . . allows abortion on demand” because it generally allows a provider to say such care is “needed for mental anguish or anxiety”. VA does not make changes to the rule based on this comment. As stated above, the IFR does not allow for abortions in all circumstances; rather, it allows only those permitted under the circumstances described in the IFR when the life or health of the individual would be endangered if the pregnancy were carried to term or when the pregnancy is the result of rape or incest. The decision of whether a veteran's health is endangered is a clinical decision made on an individual, case-by-case basis using the standard provided in 38 CFR 17.38(b) for the provision of health care to veterans. VA health care professionals consider a veteran's health in terms of the veteran's whole health when determining if care is needed to promote, preserve, or restore the health of the individual and is also in accord with generally accepted standards of medical practice, pursuant to 38 CFR 17.38(b). As to CHAMPVA beneficiaries, a determination is likewise performed on a case-by-case basis, with the health care provider determining if the care is medically necessary and appropriate for the treatment of a condition and not specifically excluded from program coverage. See 38 CFR 17.272(a).

Multiple commenters raised concerns that VA did not indicate in the IFR the qualifications or professional competence required for VA health care professionals to furnish the health care services permitted under the IFR. One commenter more specifically alleged that, to merely permit a “health care professional” (as that term was used in the preamble of the IFR) to determine the clinical need for an abortion would allow for personnel without any gynecological or obstetrical skill or experience to make such determination. One commenter more generally raised concerns about who determines whether the life of the pregnant individual is at risk and at what degree, and other commenters specifically requested that VA ensure only physician-led teams are making these clinical eligibility decisions.

VA does not make changes to the rule based on these comments. As a preliminary matter, VA regulations specify that care in the medical benefits package will only be provided if an “ appropriate health care professional[ ]” determines that it is needed. 38 CFR 17.38(b) (emphasis added). VA health care professionals are not permitted to provide any medical care, including making determinations about needed care, beyond the scope of their VA practice, training, expertise, and demonstrated skills and abilities. 38 U.S.C. 7402 and 38 CFR 17.419. Regarding the expressed concerns about the term “health care professional,” or the lack of defined qualifications or occupations in the IFR to designate that a “health care professional” is permitted to determine whether an abortion is medically necessary, VA notes that the regulations revised by the IFR (38 CFR 17.38 and 38 CFR 17.272) only address the coverage of health care and not the provision of health care by a “health care professional” or the training or credentials they must possess. Therefore, this final rule will not specify particular occupations or qualifications for a VA health care professional to provide either abortion counseling or abortions under the circumstances identified through this rule. VA reiterates that only an appropriate health care professional can make determinations about what care is needed. A VA health care professional is not and will not be permitted to provide any medical care beyond the scope of their VA practice, training, expertise, and demonstrated skills and abilities in any context, including if providing either abortion counseling or abortions.

Regarding the comment that inquired about the degree of risk to life to be ascertained when determining whether an abortion is medically necessary, that determination is made by the appropriate health care professional on a case-by-case basis; VA will not establish a threshold degree of risk to life that is required before an individual is determined eligible for an abortion through VA because every case is clinically distinct. Regarding the requests that VA only permit decisions about the provision of abortions to be made by physician-led teams, VA restates from above that this final rule will not specify particular occupations or qualifications for a VA health care professional to provide either abortion counseling or abortions. VA does not intend for any occupation to perform clinical duties beyond their occupational training and expertise, and their practice will be consistent with generally accepted standards of care.

One commenter stated that the regulations were vague and can leave room for interpretation, and further suggested that VA have a service that would allow doctors or staff the ability to get a second opinion, feedback, and ability for quick determinations or assistance. VA does not make changes to the rule based on this comment. The IFR does not restrict VA health care professionals' ability to seek consultations for assistance with determinations of clinical necessity for any health care or service provided, to include the health care services permitted by the IFR.

Commenters raised concerns that the IFR did not establish gestational age limits beyond which an abortion would not be permitted, which they asserted will authorize VA to provide abortions for reasons beyond the circumstances permitted in the IFR. Most of these commenters did not offer specific support for this concern. Other commenters asserted that an abortion is only necessary up to a certain gestational age. One commenter specifically inquired about a gestational age limit for pregnancies that were the result of rape or incest, and relatedly other comments stated that some States that permit abortion in cases where the pregnancy is the result of rape or incest also have gestational age limits for such abortions. VA does not make changes to the rule based on these comments. As explained, the IFR does not permit the provision and coverage of abortions in all circumstances. The preamble to the IFR explains that VA has authority under 38 U.S.C. 1710 to furnish veterans with hospital care and medical services that the Secretary determines to be needed. 87 FR 55288. Consistent with this authority, VA would provide an abortion to a veteran only if determined needed by a health care professional when (1) the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term; or (2) the pregnancy is the result of an act of rape or incest. This means that in either case such care may be provided only if an appropriate health care professional determines that such care is needed to promote, preserve, or restore the health of the individual and is in accord with generally accepted standards of medical practice. 38 CFR 17.38(b)(1)-(3).

Additionally, VA has authority under 38 U.S.C. 1781 to provide CHAMPVA beneficiaries with medical care. 87 FR 55290. Pursuant to 38 CFR 17.270(b), VA provides those medical services that are medically necessary and appropriate for the treatment of a condition and that are not specifically excluded. Consistent with these authorities, VA would provide an abortion to a CHAMPVA beneficiary only if such care is medically necessary and appropriate when (1) the life or health of the pregnant beneficiary would be endangered if the pregnancy were carried to term; or (2) the pregnancy is the result of an act of rape or incest. 38 CFR 17.272(a)(64).

The decision about whether a pregnancy endangers the veteran's or CHAMPVA beneficiary's life or health, and the needed care or medically necessary and appropriate treatment, must be made on a case-by-case basis by appropriate healthcare professionals consistent with 38 CFR 17.38 and 17.270(b). As life and health endangering pregnancy complications can arise throughout a pregnancy, imposing a time limit after which VA could not provide needed or medically necessary and appropriate care could be potentially dangerous to veterans and CHAMPVA beneficiaries and would be inconsistent with VA's authority to provide needed health care to veterans and medically necessary and appropriate health care to CHAMPVA beneficiaries and contrary to VHA's primary function to provide a complete medical and hospital service for the medical care and treatment of veterans. 38 U.S.C. 1710, 38 CFR 17.38; 38 U.S.C. 7301(b); 38 U.S.C. 1781; 38 CFR 17.270(b). Each patient's situation is different, and the decision about whether to continue a pregnancy that endangers the veteran or CHAMPVA beneficiary's life or health must be made on a case-by-case basis by the pregnant patient in consultation with appropriate health care professionals based on the best medical evidence and accepted standards of medical practice. As to comments that specifically inquired about gestational age limits in cases where pregnancies are the result of rape or incest, we reiterate the statements above that establishing limits would be inconsistent with VA's authority to provide needed health care to veterans and medically necessary and appropriate health care to CHAMPVA beneficiaries and contrary to VHA's primary function to provide a complete medical and hospital service for the medical care and treatment of veterans. 38 U.S.C. 1710, 38 CFR 17.38, 38 U.S.C. 7301(b), 38 U.S.C. 1781, 38 CFR 17.270(b).

The IFR revised 38 CFR 17.38(c)(1) to establish an exception for an abortion if the life of the pregnant veteran would be endangered if the pregnancy were carried to term. Below VA summarizes comments that specifically raised concerns with this exception, other than those already addressed in this rulemaking.

Commenters who opposed the IFR generally stated that it is rare that the life of a pregnant individual is truly threatened by pregnancy or delivery. VA does not make changes to the rule based on these comments as VA disagrees. Endangerment to even one veteran's life would be sufficient, and regardless, VA refers commenters to the discussion in the IFR that details how pregnant individuals may face life-threatening conditions, and abortion may be the only medical intervention available that can preserve their life. See 87 FR 55291. As noted in the IFR, while research has shown most pregnancies progress without incident, from 1998 to 2005, the U.S. maternal mortality rate associated with live births was 8.8 deaths per 100,000 live births, and maternal mortality rates have increased staggeringly since then. Id. A 2019 study reviewed mortality data from 2007 to 2015 from the National Association for Public Health Statistics and Information Systems, which includes information on all deaths in the 50 States and the District of Columbia (DC). Id. The data showed that, during this time, within 38 States and DC, the maternal mortality rate rose to 17.9 deaths of individuals per 100,000 live births. Id. Additionally, in 2020 and 2021, maternal mortality rates increased to 23.8 and 32.9 deaths per 100,000 live births, respectively. Id. The study identified abortion clinic closures and legislation restricting access to abortion as factors that likely contributed to this rise in maternal mortality rates. Id.

One commenter more specifically stated that the presence of underlying health conditions prior to pregnancy does not mean a patient's life is in danger when they are pregnant, and further asserted that such cases merely require more skill and attentiveness by a provider that specializes in obstetrics and gynecology. VA does not make changes to the rule based on this comment, which seems to be stating that a pregnancy can always be carried to term without the pregnant veteran's life ever being endangered by either preexisting health conditions or health conditions arising during pregnancy, if and when a correct approach is used by providers. This assertion is incorrect. As VA described in the IFR, there are circumstances in which abortion may be the only medical intervention available that can preserve a pregnant veteran's life. See 87 FR 55291. VA has amended the medical benefits package to allow VA to provide abortions in certain circumstances, including when an appropriate healthcare professional determines that such care is needed to save a pregnant veteran's life, which is critical now that some States are enforcing and enacting abortion restrictions that could result in the delay or denial of such life-saving treatment.

Relatedly, other commenters stated that the presence of health conditions (such as preeclampsia, as noted in one comment) in pregnant individuals are not life threatening as they can be resolved by the induction of labor or the performance of a c-section, and therefore an abortion is not necessary to preserve the pregnant individual's health or life. One commenter further asserted that a fetus is viable at approximately 24 weeks gestational age, and if the health of the pregnant patient was a concern, birth could be induced, or a cesarean section (c-section) performed, to save the life of both the pregnant patient and the child. VA does not make changes to the rule based on these comments. Similar to our response to related comments above, VA recognizes that there are circumstances in which abortion may be the only medical intervention available that can preserve a pregnant veteran's life, and the decision about the needed care or medically necessary treatment must be made on a case-by-case basis by appropriate healthcare professionals consistent with 38 CFR 17.38 and applying the applicable clinical standards discussed throughout this preamble.

Several commenters raised concerns about the exception for an abortion if the health of the pregnant individual would be endangered if the pregnancy were carried to term. Below VA summarizes comments that specifically raised concerns with this exception, other than as already addressed in this rulemaking.

One commenter suggested that VA revise the regulatory text in § 17.38(c)(1) to additionally include “wellbeing” because the addition of “wellbeing” would encompass mental and emotional health. This commenter raised concerns that the rule was not clear that mental health was included in the consideration of the “health” of the pregnant veteran as opposed to applying solely to physical health. Another commenter asked that VA acknowledge in the text of the rule that the exception for abortions for the health of the pregnant beneficiary includes mental health in addition to physical health. VA does not make any changes to the rule based on these comments. Both physical and mental health are included in the meaning of the term “health” under 38 CFR 17.38 and 38 CFR 17.272. See also 87 FR 55291 (explaining that both chronic medical and mental health conditions increase risks associated with pregnancy, and health care professionals may determine “that these conditions (potentially in combination with other factors) render an abortion needed to preserve the health of a veteran[.]”). VA therefore does not believe it is necessary to revise the regulatory text as the commenters suggest. See also supra Part III.B above.

One commenter asserted the IFR implied that all pregnancies threaten the health of the pregnant individual, and that abortions would be permitted in all circumstances based on the threat to the pregnant individual's health. The commenter states that authorizing abortions when there is a threat to health is an “ideological” statement and not a medical determination. The commenter further requests that VA enumerate these “threats to their health” in writing. VA makes no changes to the rule based on this comment. See Section III.B. above. VA has determined that abortions may be authorized when carrying the pregnancy to term endangers the health of the pregnant individual and VA has authority to provide these services under the terms of the IFR, as explained in the IFR and herein. Further, medical determinations regarding threats to health must be made by healthcare professionals on a case-by-case basis and be consistent with established standards of care.

The IFR revised 38 CFR 17.38(c)(1) and 38 CFR 17.272(a) to establish an exception for an abortion if the pregnancy were the result of rape or incest. Below VA summarizes comments that specifically raised concerns with this exception other than as already addressed in this rulemaking.

Several commenters alleged that a person's statement that a pregnancy resulted from rape or incest is not sufficient evidence to support the provision of abortion, particularly as a provider has no obligation to confirm such statement.

VA does not make changes to the rule based on these comments. As VA explained in the IFR, the self-reporting from the pregnant veteran constitutes sufficient evidence, and the rule does not require a veteran or CHAMPVA beneficiary to present particular evidence such as a police report to qualify for this care. 87 FR 55294. This is consistent with longstanding VA policy to treat eligible individuals who experienced military sexual trauma without additional evidence of the trauma. Id. This approach is appropriate as it removes barriers to providing needed or medically necessary and appropriate care. Id. VA does not believe it is appropriate to require a provider to separately investigate or confirm the veteran or CHAMPVA beneficiary's self-reporting that an act of rape or incest occurred. Requiring such proof or confirmation could harm the provider-patient relationship, and it is unnecessary.

It is a part of routine practice for VA providers to take and rely on many types of patient-reported information (family, trauma, work, medical, legal, and other histories, for instance), as part of their clinical evaluations and assessments. For instance, VA providers make a clinical eligibility determination as to whether an individual is eligible for military sexual trauma-related treatment under 38 U.S.C. 1720D without requiring additional proof that this experience occurred, as already stated herein. See VHA Directive 1115(1), Military Sexual Trauma (MST) Program.

The comments misunderstand the function of the rape or incest exception. By operation of the IFR, patient self-reports of rape or incest constitute sufficient evidence for the VA provider to establish and document that this exception is met. 38 CFR 17.38(c)(1)(ii), 17.272(a)(64)(ii). There is no reason to treat these patient self-reports differently from self-reports supporting other sought-after medical care; nor do these comments provide any rationale for doing so. In any case where the rape or incest exception applies, the VA provider must still determine that an abortion meets the clinical standard set forth in 38 CFR 17.38(b) or 17.272(a), as applicable.

One commenter opined that in the case of a pregnancy that is the result of rape or incest, an abortion can never be “needed” or “medically necessary and appropriate” and that patients who experience mental health issues following acts of rape or incest should be provided counseling and support, not abortions. VA does not make changes to the rule based on this comment. As VA explained in the IFR, VA has determined that abortions for pregnancies resulting from rape or incest, when sought by a pregnant veteran and clinically determined to be needed to promote, preserve, or restore the health of the veteran and in accord with generally accepted standards of medical practice, are needed consistent with the terms of 38 U.S.C. 1710. As noted in the IFR, there are severe health consequences associated with being forced to carry a pregnancy that is the result of rape or incest to term, including constant exposure to the violation committed against the individual which can cause serious traumatic stress and a risk of long-lasting psychological conditions. 87 FR 55292. Such consequences can have a particular impact on veterans, who report higher rates of sexual trauma compared with civilian peers. Id. In addition, veterans are more likely to have preexisting mental health conditions that would be compounded by the mental health consequences of being forced to carry a pregnancy to term if that pregnancy is the result of rape or incest. Id. In addition, for similar reasons to those discussed above and in the IFR, and because it is “similar” to the care offered under TRICARE (Select), see 38 U.S.C. 1781(b), VA has also determined, for purposes of 38 CFR 17.272(a), that access to abortion when the pregnancy is the result of an act of rape or incest is medically necessary and appropriate and so must be available to CHAMPVA beneficiaries. 87 FR 55292.

Commenters raised concerns about whether evidence of sexual abuse will be investigated or reported. To the extent these commenters might want VA to regulate such investigation or reporting for purposes of providing the health care services permitted under the IFR, VA does not make changes to the rule. For the reasons already explained herein, self-reports are sufficient to establish that an act of rape or incest occurred. Further, this approach is similar to how VA providers, who are not investigators, consider other types of patient self-reported information such as military sexual trauma; other trauma; and medical, personal, health information and history. VA will investigate claims of rape or incest to the extent they occurred on VA property or involved a VA employee, consistent with VHA Directive 5019.02, which relates to reporting of harassment, sexual assault, and other public safety incidents in VHA. Additionally, consistent with VHA Directive 1199(2), VA providers will report claims of abuse, as necessary and required by Federal law.

One commenter inquired into whether the health care services permitted under the IFR will be available to beneficiaries in VA's Spina Bifida Health Care Benefits Program. VA considers this comment outside the scope of the rulemaking as VA did not amend the regulations for such program; only the regulations for the medical benefits package and CHAMPVA were amended by the IFR. VA makes no changes to the rule based on this comment.

This same commenter inquired into whether the health care services permitted under the IFR will be available to nonveterans for emergency services on a humanitarian basis. VA is authorized to provide humanitarian care under 38 U.S.C. 1784 and medical screening and stabilization for an emergency medical condition under 38 U.S.C. 1784A, but VA considers this comment to be outside the scope of the rulemaking as VA only amended the regulations for the medical benefits package and CHAMPVA, which determine care for veterans and CHAMPVA beneficiaries, respectively. VA makes no changes to the rule based on this comment.

Another commenter inquired whether “wives of military members” will be eligible for the health care services permitted under the IFR. To the extent such individuals have veteran status and are receiving their medical care through VA (specifically care included in the medical benefits package), or else are CHAMPVA beneficiaries, then they would be eligible for health care services in the circumstances permitted by the IFR. However, to the extent the commenter is referring to individuals who do not have veteran status or are not CHAMPVA beneficiaries, these individuals are not covered by the amendments made by the IFR. VA makes no changes to the rule based on this comment.

Many commenters stated that abortion is not health care. Some of these commenters did not provide any supporting rationale for this statement, while others asserted that abortion could not be health care because the practice of medicine is supposed to preserve life, not end life. VA does not make changes to the rule based on these comments. As VA explained in the IFR and herein, abortions are health care and may be needed to preserve the life or health of a pregnant individual. Pregnant individuals may face life and health-threatening conditions, where abortion may be the only medical intervention available that can preserve their health or life. 3 See 87 FR 55291.

Many commenters opposed VA providing access to abortions because they asserted that abortions can be harmful to pregnant individuals. Some commenters stated that abortions can result in emotional harm or complications for pregnant individuals but did not offer support, evidence, or a rationale for such assertions. Some commenters asserted similar opinions but posited distinct harms and cited certain literature. VA does not make changes to the rule based on these comments.

All medical care may pose a risk of complications to some patients. In every instance of care, medical practice requires practitioners to balance the risks of providing needed or medically necessary and appropriate care with the risks of not doing so, a calculation guided by clinical standards and informed by reliable data. The patient must then also balance the risks of receiving needed or medically necessary and appropriate care with the risks of not doing so, and VA obtains informed consent for any medical care pursuant to its existing informed consent requirements set forth in 38 CFR 17.32 (implementing 38 U.S.C. 7331). As explained in the IFR (87 FR 55291) and herein, research has shown that while most pregnancies progress without incident, pregnancy and childbirth in the United States can result in physical harm and even death for pregnant individuals. 4 Without access to comprehensive reproductive health care, including abortion, such individuals may experience conditions resulting from their pregnancy that can leave them at risk for loss of future fertility, significant morbidity, or death. In such instances, an abortion may be the only medical intervention that can preserve that individual's health or save their life. 5

The health care profession understands that abortions are safe medical interventions. 6 A study available to the public and cited in the IFR addressed the rate of abortion complications and concluded that, contrary to the unsupported assertion by commenters, the most common type of complications from abortions are minor and treatable. 7 The scientific evidence also shows that the risk of complication or mortality from abortion is less than the risk of complication or mortality from other common clinical procedures. 8

A 2018 consensus study report from the National Academy of Medicine (National Academies of Sciences, Engineering, and Medicine (NASEM)) reviewed the then available evidence on the safety and quality of legal abortions in the United States and concluded that having an abortion does not increase an individual's risk of secondary infertility, pregnancy-related hypertensive disorders, abnormal placentation, preterm birth, or breast cancer. 9 This review by NASEM also found that having an abortion does not increase a person's risk of depression, anxiety, or posttraumatic stress disorder. 10

One commenter opined that allowing access to abortion counseling or abortions via telehealth is harmful. The commenter provides no evidence or rationale for this assertion. VA makes no changes to the rule based on this comment. Telehealth is widely implemented at VA to provide high-quality care to veterans and eligible beneficiaries, enhancing access to care in appropriate cases. See 38 U.S.C. 1730C. Abortion counseling as well as some abortions can be provided through telehealth in accord with generally accepted standards of medical practice. VA will only provide medical care, whether in-person or through telehealth, that is consistent with generally accepted standards of care.

Commenters also raised concerns that the rule did not include informed consent or standards for medical evaluations to ensure that an abortion would not lead to further medical complications or harm for women. VA does not make changes to the rule based on these comments. In determining whether to recommend any treatment or procedure, VA providers take into consideration all relevant clinical factors, that is, they conduct a medical evaluation based on a number of clinical factors. Decisions as to which treatment or procedures to recommend are clinical judgments made in accord with generally accepted standards of care. Informed consent is not required as part of the provider's individual undertaking of a differential diagnosis or decision process as to available and recommended treatment options. These clinical evaluation steps occur before the provider's professional recommendation is decided. Informed consent only applies to the receipt of VA recommended treatment or procedures, which the patient can then decide to reject or accept. No medical treatment or procedure may be performed without the prior, voluntary, and fully informed consent of the patient. 38 CFR 17.32(b). 38 U.S.C. 7331; 38 CFR 17.32. As part of informed consent discussion, the practitioner must explain in plain language understandable to the patient the nature of the proposed procedure or treatment; expected benefits; reasonably foreseeable associated risks, complications, side effects; reasonable and available alternatives; and anticipated result if nothing is done, among other information. See 38 CFR 17.32(c)(2).

Commenters raised concerns related to employees' religious and conscience-based protections, including under the First Amendment, the Religious Freedom Restoration Act, the Public Health Service Act (including the Coats-Snowe Amendment), and Title VII of the Civil Rights Act of 1964. Commenters further asserted that VA is forcing VA employees to provide abortions that may be criminal offenses under State or local law, and one commenter specifically inquired whether any or all VA employees will be responsible for assisting with “emergency abortions.” VA does not make any changes to the rule based on these comments. In implementing the IFR and this rule, VA adheres to all applicable Federal laws relating to employee rights and protections, including protections based on an employee's religious or conscience-based objection to abortion. VA has a policy in place for reasonable accommodation requests, where employees may request to be excused from providing, participating in, or facilitating an aspect of clinical care, including reproductive health clinical care authorized by this rule. See, AUSHO Memorandum, Processing Employee Requests to be Excused from Aspects of the Provision of Reproductive Health Care within the Veterans Health Administration (Jan. 6, 2023). Pursuant to that policy, VA health care professionals that object to furnishing the care covered by this rulemaking to veterans or CHAMPVA beneficiaries may request to be excused from that care and such requests will be individually assessed under the applicable Federal law. If excusal is requested, supervisors should grant interim excusal for employees from duties or training regarding reproductive health care while requests are being processed.

Commenters also raised concerns regarding whether those providing the health care services permitted under the IFR, including VA employees and non-VA providers, would be protected by VA against State action, such as potential enforcement of State criminal, civil, or administrative penalties related to the provision of the health care services permitted under the IFR. To the extent a VA employee provides the health care services permitted under the IFR within the scope of their VA employment as authorized by Federal law, they could not legally be subject to adverse State actions. As described above, State and local laws, rules, regulations, and requirements that unduly interfere with health care professionals' practice will have no force or effect when such professionals are practicing health care while working within the scope of their VA employment. 38 CFR 17.419.

Moreover, as further described above, in circumstances where there is a conflict between Federal and State law, Federal law would prevail in accordance with the Supremacy Clause under Article VI, clause 2, of the U.S. Constitution. The Department of Justice's Office of Legal Counsel has issued an opinion confirming that States may not impose criminal or civil liability on VA employees who provide or facilitate abortions or related services in a manner authorized by Federal law, including this rule. See 46 Op. O.L.C. _ (Sept. 21, 2022); www.justice.gov/olc/opinion/intergovernmental-immunity-department-veterans-affairs-and-its-employees-when-providing. If States attempt to subject VA employees to legal action for appropriately carrying out their Federal duties the Department of Justice will support and provide representation to those employees.

Several commenters additionally asserted that performing an abortion would violate a VA health care professional's Hippocratic oath, where some of these comments further noted that this oath requires individuals who take it to “do no harm” in the practice of medicine. VA does not make changes to the rule based on these comments. An abortion would be provided pursuant to the rule to veterans only when determined by appropriate healthcare professionals to be needed to promote, preserve, or restore the health of the individual and to be in accord with generally accepted standards of medical practice; and to CHAMPVA beneficiaries when medically necessary and appropriate.

Some commenters appeared to allege that the IFR violates their First Amendment rights and religious freedoms as members of the public, without providing rationale or support for such statements. Unlike the comments above that raised specific First Amendment and religious freedom concerns for VA health care professionals, these comments did not assert or explain why they believed the IFR violated their First Amendment rights or religious freedoms as members of the public. VA's IFR authorizes the provision of abortions and abortion counseling to veterans and CHAMPVA beneficiaries in certain circumstances. It does not limit the First Amendment rights or religious freedoms of the public.

The IFR revised 38 CFR 17.38(c)(1) and 17.272(a) to remove a prohibition on VA providing access to abortion counseling. Below VA summarizes comments that specifically raised concerns with this revision, other than as already addressed in this rulemaking.

Multiple commenters raised various concerns about VA's provision of abortion counseling. The commenters stated that abortion counseling should be unbiased, and that VA should not “direct” pregnant individuals to have an abortion. The commenters further suggested that abortion counseling should include discussion of options other than abortion and should also include information about the negative effects of abortion. One commenter further implied that VA is not providing counseling about options other than abortion specifically for victims of rape or incest.

VA does not make changes to the rule based on these comments. Prior to the IFR, VA could not discuss abortion as an option with pregnant patients, but VA has always provided counseling to pregnant patients about pregnancy options such as carrying the pregnancy to term and adoption. Under the IFR, VA now provides the full range of pregnancy options counseling to individuals who are pregnant, which includes all options related to that individual's pregnancy and is not limited to discussing only the option of abortion. This is consistent with Centers for Disease Control and Prevention guidance. 11 As explained in the IFR, abortion counseling is part of pregnancy options counseling and is a component of comprehensive, patient-centered, high-quality reproductive health care, and is needed care for veterans, and medically necessary and appropriate for CHAMPVA beneficiaries, because such counseling will enable a pregnant individual to make a fully informed health care decision, just as counseling offered or covered by VA regarding other health care treatments enables the patient to make an informed decision. See 87 FR 55292-93. Such pregnancy options counseling is provided in a neutral, non-directive, and unbiased manner to ensure patients receive the most complete and accurate information regarding available treatment options. VA does not direct a patient towards a specific option when it conducts pregnancy options counseling. The rule also makes clear that VA's determinations that such counseling is needed care (as to veterans) and medically necessary and appropriate (as to CHAMPVA beneficiaries)—and the accompanying regulatory amendments—were not limited to instances in which the pregnancy is the result of rape or incest. See, e.g., id at 55293-94.

Another commenter suggested VA provide post-abortion counseling and support for the pregnant individual and their spouse. VA does not make changes to the rule based on this comment. To the extent a veteran requests counseling or mental health support from VA after an abortion or any other type of medical service, such care is available to veterans as part of the medical benefits package. VA would also cover such counseling and mental health support for CHAMPVA beneficiaries. However, and as explained herein, VA does not have authority to provide such counseling under the medical benefits package or CHAMPVA to non-veterans and non-VA beneficiaries, respectively.

Prior to the IFR, the CHAMPVA program at 38 CFR 17.272(a)(64) covered abortions for beneficiaries when the life of the beneficiary would be endangered if the pregnancy were carried to term. The IFR revised § 17.272(a)(64) to: (i) expand the exception on the exclusion of abortion to cover cases where the health of the pregnant CHAMPVA beneficiary would be endangered if the pregnancy were carried to term; and (ii) to establish an exception to the exclusion of abortion to cover cases where the pregnancy of the CHAMPVA beneficiary is the result of an act of rape or incest. Below VA addresses comments that specifically raised concerns with these changes to CHAMPVA, other than as already addressed in this rulemaking.

One commenter stated that VA does not have authority to provide medical care under the CHAMPVA program in the same manner as under the TRICARE program because TRICARE and CHAMPVA are separate programs and CHAMPVA covers medical care only to those specifically identified at 38 U.S.C. 1781(a). The commenter further stated that VA does not effectively argue that CHAMPVA and TRICARE coverage should be aligned. VA does not make any changes to the rule based on this comment. It appears that the commenter may misunderstand the CHAMPVA authority. VA has authority to furnish medical care to CHAMPVA beneficiaries pursuant to 38 U.S.C. 1781. Section 1781(b) establishes that VA must provide such care “in the same or similar manner and subject to the same or similar limitations as medical care” is provided by DoD under the TRICARE program.

Other commenters asserted that the IFR's changes to the CHAMPVA regulations were not the same or similar to what is permitted under TRICARE. Specifically, these comments noted that the exclusion to provide abortions if the health of an individual were endangered, as well as furnishing abortion counseling for any reason (and not just in those cases for which abortions would be covered by TRICARE), were too broad to be considered the same or similar to what is permitted under TRICARE. Notably, these comments also incorrectly argued that the CHAMPVA exception to protect the health of the pregnant individual without further qualification or limitation could be interpreted in a way that increases access to abortion services beyond the scope stated in the IFR.

VA does not make changes to the rule based on these comments. As explained in the IFR and herein, TRICARE (Select) provides coverage for abortions when the pregnancy is the result of an act of rape or incest, or when a physician certifies that the life of the woman would be endangered if the pregnancy were carried to term. 87 FR 55290. CHAMPVA regulations previously allowed for abortions only when a physician certifies that the abortion was performed because the life of the woman would be endangered if the pregnancy were carried to term. See 38 CFR 17.272(a)(64); 87 FR 55290. Pursuant to VA's authority in 38 U.S.C. 1781, VA amended the CHAMPVA regulations to better align coverage under CHAMPVA with coverage under TRICARE (Select). In this regard, VA amended its regulations to additionally provide coverage of abortions when the pregnancy is the result of an act of rape or incest. Although VA also revised the regulations to cover abortions when the health of the CHAMPVA beneficiary would be endangered if the pregnancy were carried to term, in contrast with coverage under TRICARE (Select), coverage under CHAMPVA must be provided in the “same or similar” manner and subject to the “same or similar” limitations as TRICARE (Select). 38 U.S.C. 1781(b); see 87 FR 55290. By referring to care that is “similar,” the statute permits VA flexibility to administer the program for CHAMPVA beneficiaries. If Congress had intended for VA to administer the program for CHAMPVA beneficiaries in a manner equivalent to TRICARE (Select), 38 U.S.C. 1781(b) simply could have required VA provide “the same” care in “the same” manner as TRICARE (Select); however, the statute recognizes that there will be differences in how VA administers CHAMPVA. VA determined that the care provided under this rule is similar to that provided by DOD under TRICARE (Select), which covers abortions to beneficiaries when there is a medical risk to the pregnant individual if the pregnancy were carried to term or if the pregnancy is the result of an act of rape or incest. Id. The flexibility to administer CHAMPVA in a manner “similar” to TRICARE (Select) also recognizes that VA serves a different population than TRICARE under a different authority. Section 1781(b) of 38 U.S.C. authorizes VA to provide care directly to CHAMPVA beneficiaries through VA facilities, and beneficiaries who receive care at a VA facility are eligible for the same medical services as a veteran. In exercising our discretion to provide care in a “similar” manner to TRICARE (Select), we have concluded it lies within our discretion to determine that abortions in the circumstances authorized by the IFR should be made available to all CHAMPVA beneficiaries, not just those who receive their care through VA facilities. As explained, it is important to provide medically necessary and appropriate abortion care when the health of the pregnant individual is endangered, as determined by an appropriate medical professional under generally accepted standards of care, to better promote the long-term health of CHAMPVA beneficiaries, which is consistent with VA's past practices related to implementing CHAMPVA.

Regarding the portion of these comments related to VA furnishing abortion counseling under CHAMPVA for any beneficiary and not just in those cases for which an abortion would be covered by TRICARE, we reiterate from above that VA finds this more comprehensive abortion counseling to be sufficiently similar to that under TRICARE (Select). VA's broader coverage may deviate for purposes of promoting the long-term health of CHAMPVA beneficiaries by covering the most complete and accurate information available regarding various pregnancy and health care options, regardless of whether CHAMPVA would cover any such abortion the beneficiary receives. See also 87 FR 55292-93.

One commenter stated that 38 U.S.C. 1781 authorizes, but does not mandate, the provision of CHAMPVA care at VA facilities through the CHAMPVA In-House Treatment Initiative (CITI). The commenter suggested that VA ensure that VA facilities provide access to abortion to CHAMPVA beneficiaries through the CITI program, particularly in localities where abortions are banned or restricted. VA does not make changes to the rule based on this comment. The provision of CHAMPVA care at VA facilities through the CITI program is permissible under 38 U.S.C. 1781(b), which provides that those VA medical facilities that are equipped to provide CHAMPVA beneficiaries care may do so only to the extent they are not being utilized for the care of eligible veterans. Because the capacity, projected demands, and care needs of veterans at each VA Medical Center can fluctuate, VA cannot ensure that a certain number of VA facilities or facilities in any particular State or region will participate in the CITI program at any given time. However, where a VA facility operates a CITI program, it will provide the health care services permitted by the IFR to CHAMPVA beneficiaries who are eligible to receive care through CITI consistent with the IFR and to the extent that facility's resources are not being utilized for the care of eligible veterans. Further, it remains the case that the CITI program may expand to additional VA facilities if such facilities are equipped to provide the care and treatment and are not being utilized for the care of eligible veterans, without any revisions to VA regulations.

One commenter asserted that VA should clarify that it is not requiring its health care professionals to perform any abortions on those under the age of 18, and that parental notification and consent is required for any abortion. Another commenter similarly stated that it was unclear what protocols will be put in place to ensure that children of veterans who may be eligible to receive abortions through the VA have received proper parental consent. VA makes no changes to the rule based on these comments.

In accordance with VHA Directive 1004.01, dated December 12, 2023, it is VA policy that if a patient is considered a minor under State law in the jurisdiction where the VA facility is located, then that patient is not presumed to have decision-making capacity for giving informed consent. As a result, for patients considered minors, consent would be obtained from the patient's parent or legal guardian, except as otherwise provided by law. And as also consistent with this VA policy, if the patient is not considered a minor under State law, for example, by virtue of a State court order awarding emancipation to the minor or automatic emancipation under State law based on certain events, parental notification and consent would not be required.

One commenter recommends VA revise the rule to include an exception to allow abortions for fatal fetal anomalies. VA makes no changes based on this comment. The commenter provides no rationale for the proposal that abortions be provided absent the circumstances identified in the rule, or for a finding that the proposed expansion would constitute needed care (for veterans) or medically necessary and appropriate care (for CHAMPVA beneficiaries) under 38 U.S.C. 1710 and 1781. As explained herein and in the IFR, VA has determined that abortions are needed or medically necessary and appropriate care, as required under VA's statutory authorities, when the life or health of the pregnant veteran or CHAMPVA beneficiary would be endangered if the pregnancy were carried to term or when the pregnancy is the result of an act of rape or incest. It is up to the provider to determine if the specific clinical facts of the individual case establish that the carrying to term of a fetus with a fatal fetal anomaly would endanger the life or health of a pregnant veteran or CHAMPVA beneficiary. That is, it would be up to the provider to make the necessary clinical determination.

Several commenters opined that VA should not use its limited resources for abortion as VA facilities are for veteran care. These commenters expressed concerns regarding the impact of the health care services permitted under the IFR on VA's provision of other needed care. VA makes no changes to the rule based on these comments. As explained in the IFR and throughout this final rule, abortions can also be needed health care for veterans and medically necessary and appropriate for CHAMPVA beneficiaries. Pursuant to authorized appropriations, detailed above, VA receives and uses funding to furnish medical care authorized under the medical benefits package, which now includes abortions in certain circumstances and abortion counseling. VA's provision of the health care services permitted under the IFR does not impact or preclude VA's provision of all other needed health care.

Several commenters opined that VA should permit access to abortions for any reason, not just in the circumstances identified in the IFR. One of these commenters asserted that VA's statutory authority permits abortion care in all circumstances, not just in cases where the life or health of the pregnant patient would be endangered if the pregnancy were carried to term, or when the pregnancy is the result of rape or incest. Consistent with its authorities, and as discussed throughout this rule and the IFR, VA has removed exclusions for certain care that VA has, at this time, determined to be “needed” (for veterans) and “medically necessary and appropriate” (for CHAMPVA beneficiaries). We decline to change course based on these comments.

Some commenters supported a legislative change to permit VA to provide access to abortions for any reason. Those comments regarding Congress's ability to amend VA's statutory authority are outside the scope of this rulemaking.

Some commenters otherwise asserted that the IFR's framing of VA's regulatory changes as prohibitions on abortion with exceptions could be confusing, perhaps to the detriment of veterans or CHAMPVA beneficiaries. As discussed, given VA's statutory authorities and regulations concerning determinations that care is “needed” or “medically necessary and appropriate”—as well as a preexisting prohibition with “exceptions” for abortion care under VA's implementing regulations for CHAMPVA (38 CFR 17.272)—it was appropriate to regulate in this consistent manner. VA has and will continue to issue appropriate guidance to ensure that VA health care professionals understand that abortion is permitted under the exceptions as outlined in the IFR, and again directs veterans, CHAMPVA beneficiaries, and external stakeholders to VA's public-facing websites for clarifying information: www.womenshealth.va.gov/WOMENSHEALTH/topics/abortion-services.asp.

Many commenters raised concerns that were outside the scope of the rulemaking, in addition to those noted above. VA has briefly summarized those concerns below; VA does not make any changes to the rule based on them.

One commenter suggested VA clarify that “the rule cannot mandate coverage for abortion or situationally for any related reproductive health services.” To the extent the comment was simply asking VA to clarify this point, we reiterate that the covered health care and services permitted under the IFR are available to veterans and CHAMPVA beneficiaries when their health care provider determines they are needed or medically necessary and appropriate. The decision to pursue a particular course of treatment is the pregnant individual's decision, made in consultation with a provider, VA does not make that decision for the individual.

Multiple commenters made statements or asked questions about VA's implementation plan(s) related to the IFR. VA finds comments related to VA's implementation beyond the scope of the IFR as these are administrative matters not controlled by the regulations that were revised by the IFR. Nonetheless, VA provides summaries and responses below for the purposes of transparency and as appropriate.

One commenter opined that VA must make explicit its plan to implement the rule. VA has made relevant information available on its website. See www.womenshealth.va.gov/WOMENSHEALTH/topics/abortion-services.asp. As stated there, VA is taking steps to guarantee veterans and CHAMPVA beneficiaries have access to abortion-related care, as authorized by this rule, anywhere in the country.

One commenter stated that a VHA website related to community care provisions ( https://www.va.gov/communitycare/programs/veterans/general_care.asp ) provided that VA facilities do not provide maternity care which suggests that veterans can only receive medical care related to pregnancy (and therefore abortions) through VA's community care providers. The commenter raised a concern about how eligible veterans would be able to access the health care services permitted under the IFR if they were solely available in the community and those community providers would be required to adhere to State law requirements. Relatedly, another commenter inquired whether VA will be providing the health care services permitted under the IFR within its VA medical facilities or referring individuals out to the community in other States.

VA does provide some maternity care services to veterans in VA medical facilities, and to the extent that VA can furnish the health care services permitted by the IFR directly, it will do so. Since the IFR published and became effective, VA has made efforts to ensure it has adequate capacity to provide abortion care at VA facilities, including abortion counseling. Regarding needed health care services permitted by the IFR that cannot be furnished in VA facilities (due to lack of resources such as staff or equipment, for instance), VA may refer such care to VA community care providers where that health care is available, consistent with existing VA regulations (see, for instance, 38 CFR 17.4000 et seq. ).

Several commenters raised concerns that the IFR does not explain the types of abortion methods that will be permitted or prohibited by VA. As noted above, VA does not generally find it appropriate to regulate the types of methods of care or procedures that are permitted or prohibited. Doing so could unnecessarily restrict the provision of care, including abortions, and result in negative impact or harm to our patients. The type of abortion provided will vary on a case-to-case basis, and appropriate VA medical professionals must be able to determine, in accord with generally accepted standards of medical practice, how best to treat all individuals.

One commenter opined that VA should clarify in guidance that no additional administrative barriers should delay or impede access to the health care services permitted under the IFR determined to be appropriate by a health care professional. Neither the IFR nor this final rule adds administrative barriers to delay or impede access to the health care services permitted under the IFR. VA will ensure its health care professionals furnish this care consistent with the manner in which they furnish all other authorized health care.

One commenter inquired as to whether VA will have funding for the provision of this care, if VA will provide medication abortion, and if VA will have necessary providers available to provide this care. VA is using and will continue to use its current funding for the provision of health care authorized under 38 U.S.C. 1710 and 1781 to provide health care services in the circumstances permitted under the IFR. VA will ensure that experienced and trained VA providers are available to provide abortions, including medication abortion. Another commenter relatedly recommended that VA equip its pharmacists with the authority and infrastructure to support mail dispensary of medication abortion drugs. VA pharmacists do have the authority to mail medications.

Another commenter urged VA to include virtual counseling and medication abortion as part of the care authorized under the IFR. As explained previously in this rule, abortion counseling may be provided virtually through telehealth in accord with generally accepted standards of care. VA will provide medication abortions when needed and medically appropriate and in a manner consistent with Federal law.

Another commenter suggested that VA clarify that sexual assault survivors can receive the full range of health care without barriers, especially as the majority of sexual assaults are not reported, and survivors may distrust the police or fear retaliation from a known perpetrator. Veterans who are eligible for VA health care and CHAMPVA beneficiaries are able to receive the full range of health care authorized under the medical benefits package and CHAMPVA, respectively, regardless of whether they are a sexual assault survivor. VA notes that it has military sexual trauma coordinators at every VA medical facility that can further assist eligible individuals in accessing needed military sexual trauma care. For additional information, please see www.va.gov/health-care/health-needs-conditions/military-sexual-trauma/.

One commenter appeared to support VA's training of medical students and residents to provide the health care services permitted under the IFR. Similar to the provision of all other health care provided by VA, medical students and residents may receive training from VA regarding the provision of the health care services permitted under the IFR. Such training would be conducted pursuant to an affiliation agreement between an educational institution and a VA facility, and under the clinical supervision of an appropriate health care professional.

One commenter stated that not all VA facilities are located on exclusive Federal property, and therefore it would seem necessary to alert individuals seeking an abortion at such a VA facility that VA cannot guarantee that such individuals would not be prosecuted under State law even though the VA medical provider would appear to be protected. The commenter further stated that a better option would be to have VA authorize transport at government expense of such an individual to a VA facility in a State that does not criminalize abortion. Relatedly, commenters inquired how VA will address State action concerns because not all veterans live in areas that permit abortion counseling or services and that there should be measures to ensure travel across State lines if necessary, and generally noted that VA needs to ensure that veterans feel safe in accessing abortion care.

For the portions of these comments that assert or question VA's jurisdiction or control of its facilities, any care or services furnished by VA in a manner authorized by Federal law, including by this rule, would preempt conflicting State law that would penalize VA employees for performing their Federal functions, regardless of any specific land ownership or leasing arrangements (for instance, such as if a VA facility is co-located to a State-sponsored academic institution).

To the extent these comments may raise concerns that needed abortion counseling or abortions cannot be furnished in VA facilities (due to lack of resources such as staff or equipment, for instance), VA reiterates from earlier in this discussion that VA may refer such care to VA community care providers where available.

Insofar as some comments concerned potential travel needed to obtain the health care services permitted under the IFR, veterans would have access to both Beneficiary Travel and Veterans Transportation Program benefits if so eligible under VA regulations at 38 CFR part 70.

Finally, insofar as commenters suggested that VA alert certain individuals seeking abortions that VA cannot guarantee that such individuals would not be prosecuted under State law, VA is a health care provider, and VA attorneys have no authority to provide any legal advice to veterans or CHAMPVA beneficiaries.

Commenters asserted that instead of access to the health care services permitted under the IFR they believed pregnant individuals should be given the option of emotional and physical support throughout their pregnancies and post-partum experiences, specifically including prenatal medical attention. Other commenters similarly indicated that instead of providing access to abortions, VA should direct pregnant individuals to support groups that are available and, if such individuals do not wish to keep a child after giving birth, to help them through the adoption process. As with all comments discussed in this section, VA finds these comments to be beyond the scope of the IFR.

These commenters seem to assert that abortion would not be necessary if pregnant individuals were given more support during prenatal, pregnancy, or postpartum stages, or offered choices beyond abortion, which seems to assume that VA is providing access to abortion procedures for reasons other than medical necessity. However, the IFR permits abortions to be provided only when the life or health of the pregnant individual would be endangered if the pregnancy were carried to term or when the pregnancy is the result of an act of rape or incest. VA provides care to veterans when such care is determined by an appropriate health care professional to be needed to promote, preserve, or restore the health of the veteran and is in accord with generally accepted standards of medical practice, and provides care for CHAMPVA beneficiaries that is medically necessary and appropriate. The need for health care services permitted under the IFR would not be prevented by increased access to support groups or to a particular level of maternity care services. Moreover, VA's pregnancy options counseling, discussed above, includes abortion counseling and all other pregnancy options. The course of treatment is the pregnant individual's decision, made in consultation with a provider, and nothing in the IFR changes this.

To the extent the commenters might be expressing that lack of maternity care services could endanger a pregnant individual's life or health if the pregnancy were carried to term, maternity care services provided by VA include comprehensive pre- and post-partum care and services. VA will continue to provide comprehensive maternity care in addition to the health care services permitted by the IFR in the circumstances stated in the rule.

Regarding the request in the comments that VA assist pregnant individuals with the adoption process if they did not want to keep a child after giving birth, VA does provide pregnancy options counseling as part of its furnishing of maternity care services, and this pregnancy options counseling includes providing information on adoption.

The purpose of this section is to clarify VA's intent with respect to the severability of provisions of this rule. Each provision and portion of this rule is capable of operating independently. If any provision or portion of this rule is determined by judicial review or operation of law to be invalid, that partial invalidation will not render the remainder of this rule invalid. As explained in the IFR and above, VA amended its regulations because it determined that providing access to abortion-related medical care is needed to protect the lives and health of veterans and is medically necessary and appropriate care for CHAMPVA beneficiaries. For those same reasons, VA intends each aspect of the rule to operate and ensure that such care is available, even if one portion of the rule is invalidated. For example, if a provision of the rule concerning benefits for CHAMPVA beneficiaries were held invalid, other provisions concerning CHAMPVA beneficiaries, and provisions concerning the care available to Veterans under the medical benefits package, could and should continue to operate independently. The provisions authorizing abortions in cases where the life or health of the pregnant veteran or CHAMPVA beneficiary would be endangered if the pregnancy were carried to term could operate independently should the provision authorizing abortions in cases where the pregnancy is due to an act of rape or incest be held invalid, and vice versa. The provisions authorizing VA to provide abortions could continue to operate should the provisions authorizing VA to provide abortion counseling be held invalid. We emphasize that this is a non-exhaustive list of examples. Likewise, if the application of any portion of this rule to a particular circumstance is determined to be invalid, the agency intends that the rule remain applicable to all other circumstances.

VA has considered all relevant input and information contained in the comments submitted in response to the IFR (87 FR 55287) and, for the reasons set forth in the foregoing responses to those comments, has concluded that changes to the IFR are not warranted. Accordingly, based upon the authorities and reasons set forth in issuing the IFR (87 FR 55287), as supplemented by the additional reasons provided in this document in response to comments received, VA is adopting the provisions of the IFR as a final rule without changes.

Executive Order 13132 establishes principles for preemption of State laws when those laws are implicated in rulemaking or proposed legislation. The order provides that, where a Federal statute does not expressly preempt State law, agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.

As discussed in the IFR, consistent with 38 CFR 17.419, State and local laws, rules, regulations, or requirements are preempted to the extent those laws unduly interfere with Federal operations or the performance of Federal duties. 87 FR 55293-55294. That includes laws that States and localities might attempt to enforce in civil, criminal, or administrative matters against VA health care professionals acting in the scope of their VA authority and employment and that would prevent those individuals from providing care authorized by 38 U.S.C. 1701, 1710, 1781, 1784A, 7301, and 7310, and VA's implementing regulations. State and local laws, rules, regulations, or requirements are therefore without any force or effect to the extent of the conflict with Federal law, and State and local governments have no legal authority to enforce them in relation to actions by VA employees acting within the scope of their VA authority and employment.

Because all State and local laws, rules, regulations, or requirements have no force or effect to the extent that they unduly interfere with the ability of VA employees to furnish reproductive health care while acting within the scope of their VA authority and employment, there are no actual or possible violations of such laws related to VA programs, operations, facilities, contracts, or information technology systems that would necessitate mandatory reporting by VA employees. 38 CFR 1.201-1.205. This rulemaking confirms VA's authority and discretion to manage its employees concerning the services that will be provided pursuant to this rulemaking.

Next, Executive Order 13132 requires that any regulatory preemption of State law must be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated. Under VA's regulations, State and local laws, rules, regulations, or other requirements are preempted only to the extent they unduly interfere with the ability of VA employees to furnish needed or medically necessary and appropriate health care to veterans and CHAMPVA beneficiaries while acting within the scope of their VA authority and employment. Therefore, VA believes that the rulemaking is restricted to the minimum level necessary to achieve the objectives of the Federal statutes.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rule is a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at https://www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This final rule will not have a significant impact on a substantial number of small entities because the final rule does not directly regulate or impose costs on small entities and any effects will be indirect. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995, see 2 U.S.C. 1532, requires that agencies prepare an assessment of anticipated costs and benefits before issuing any rule 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 (adjusted annually for inflation) in any one year. This rule will have no such effect on State, local, and tribal governments, or on the private sector.

This rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-21.

Pursuant to the Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not satisfying the criteria under 5 U.S.C. 804(2).

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on February 26, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

The International Mail Manual (IMM) provides our standards for all international mailing services and references for the applicable prices. It was issued on January 21, 2024, and was updated with Postal Bulletin revisions through December 28, 2023. It replaces all previous editions.

The IMM continues to enable the Postal Service to fulfill its long-standing mission of providing affordable, universal mail service. It continues to: (1) increase the user's ability to find information; (2) increase the user's confidence that he or she has found the information they need; and (3) reduce the need to consult multiple sources to locate necessary information. The provisions throughout this issue support the standards and mail preparation changes implemented since the version of July 10, 2022. The International Mail Manual is available to the public on the Postal Explorer® internet site at https://pe.usps.com.

In view of the considerations discussed above, the Postal Service hereby amends 39 CFR part 20 as follows:

The Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) provides the United States Postal Service's official prices and standards for all domestic mailing services. The most recent issue of the DMM is dated January 21, 2024. This issue of the DMM contains all Postal Service domestic mailing standards and continues to: (1) increase the user's ability to find information; (2) increase confidence that users have found all the information they need; and (3) reduce the need to consult multiple chapters of the Manual to locate necessary information. The issue dated January 21, 2024, sets forth specific changes, including new standards throughout the DMM to support the standards and mail preparation changes implemented since the version issued on July 10, 2022.

Changes to mailing standards will continue to be published through Federal Register documents and the Postal Bulletin and will appear in the next online version available via the Postal Explorer® website at: https://pe.usps.com.

In view of the considerations discussed above, the Postal Service hereby amends 39 CFR part 111 as follows:

This rule is published under the authority granted to the Secretary of Health and Human Services by section 1102 of the Social Security Act (the Act) (42 U.S.C. 1302). Section 1102 of the Act authorizes the Secretary to publish regulations, not inconsistent with the Act, as may be necessary for the efficient administration of the functions with which the Secretary is responsible under the Act. The authority to modify the paternity establishment percentage (PEP) performance measure and data reliability audit requirements is based on section 452(g)(3)(A) of the Act (42 U.S.C. 652(g)(3)(A)), which provides the Secretary with discretionary authority to modify the PEP and program audit requirements taking into account additional variables as identified by the Secretary that affect the ability of a state to meet the PEP and audit requirements. The authority to modify, waive or suspend the support order establishment and current collections performance measures is based on section 409(a)(8)(A)(i)(I) of the Act (42 U.S.C. 609(a)(8)(A)(i)(I)), which provides the Secretary with discretion regarding the establishment of other state child support program performance measures.

The purpose of this rule is to authorize the Secretary to provide targeted and time-limited relief to states from certain performance penalties when natural disasters and other calamities impact state child support program operations, preventing the state from achieving the required program performance measures.

This rule allows OCSS to modify the requirements for states to meet the following performance standards: the PEP performance standard of 90 percent under 45 CFR 305.40(a)(1), the support order establishment standard of 40 percent under 45 CFR 305.40(a)(2), and the current collections performance standard of 35 percent under 45 CFR 305.40(a)(3). This rule sets forth the process by which states may request, and OCSS may adjust these performance standards to a lower level to avoid imposing financial penalties on states and modify the requirements to avoid the imposition of penalties due to adverse data reliability audit findings. The rule permits time-limited modification of performance requirements during, and subsequent to, natural disasters and other calamities. We note that the rule only addresses modifications to penalty performance measures and levels under 45 CFR 305.40; it does not change the requirements related to incentive payments under section 458 of the Act and 45 CFR part 305.

The need for OCSS to establish a process for states to request relief from penalties during natural disasters and calamities became apparent during the COVID-19 pandemic. During the COVID-19 pandemic, states experienced significant workload burdens and service backlogs due to disruptions to state child support program operations and court closures. State child support program operations were affected in a variety of ways, including being unable to obtain voluntary acknowledgments through in-hospital programs or to access genetic testing due to child support office closures, court closures, staffing shortages, or when clinical laboratory resources were diverted for pandemic-related testing. In response, OCSS added 45 CFR 305.61(e) to provide time-limited relief specific to the impact of COVID-19, to modify the Paternity Establishment Percentage for Federal Fiscal Years (FFY) 2020, 2021, and 2022.

Since the start of the pandemic in early 2020, states have appealed for relief from program requirements in order to support their operations during the crisis. OCSS was able to provide certain flexibilities for administrative requirements under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170) ( See OCSS's Dear Colleague Letter 20-04: Flexibilities for State and Tribal Child Support Agencies during COVID-19 Pandemic  1 ). However, these flexibilities did not extend to relief for financial penalties related to performance or adverse data reliability audit findings. States are concerned that performance-related financial penalties resulting from a natural disaster or other calamity, and which are imposed in the form of a reduction to state TANF grants, place an undue burden on state budgets and threaten funding that supports the very families who are most in need of public assistance during a time of crisis.

Under title IV-D of the Act, states are required to achieve performance levels in paternity establishment, support order establishment, and current collections. Failure to achieve required performance levels may lead to penalties assessed as a percentage reduction of the state's Temporary Assistance for Needy Families (TANF) grant in accordance with section 409(a)(8) of the Act (42 U.S.C. 609(a)(8)).

The PEP, support order establishment, and current collections performance measures, which are part of the overall performance, audit, penalties, and incentives for the child support program, are established under 452(g) of the Act and 45 CFR 305.40. Section 452(a)(4)(C)(i) of the Act requires the Secretary to determine whether state-reported data used to determine the performance levels are complete and reliable. Additionally, section 409(a)(8)(A) of the Act and 45 CFR 305.61(a)(1) include the assessment of a financial penalty if there is a failure to achieve the required level of performance or an audit determines that the data are incomplete or unreliable.

The required levels of performance for the PEP, support order establishment, and current collections performance measures are set out in 45 CFR 305.40:

• The PEP performance level must be at least 90 percent or an improvement of 2 to 6 percentage points over the previous year's level of performance, below which a state will incur a penalty.

• The support order establishment performance level must be at least 40 percent, below which a state will be penalized unless an increase of 5 percent over the previous year is achieved.

• The current collections performance level must be at least 35 percent, below which a state will be penalized unless an increase of 5 percent over the previous year is achieved.

Section 409(a)(8)(A)(ii) of the Act and 45 CFR 305.61(a)(2) impose automatic corrective action for the subsequent fiscal year. A state also must submit complete and reliable data used in the performance measure calculations, which will be audited according to 45 CFR 305.60.

If a state fails to meet the annual performance measure standards, or to show improvement in the subsequent year, the amount of the initial penalty will be equal to one to two percent of the adjusted State Family Assistance Grant for the state's TANF program in accordance with 45 CFR 305.61(c) and (d). A penalty will also be imposed if the state fails to submit complete and reliable performance measure data and there is an adverse data reliability audit finding for a performance measure in the subsequent year. The penalty will continue to be assessed in accordance with section 409(a)(8)(B) of the Act and 45 CFR 305.61 until the state is determined to have submitted complete and reliable data and achieved the required performance measure standards. In accordance with 45 CFR 262.1(e)(1), the state must expend additional state funds equal to the amount of the penalty (which will not count toward the maintenance-of- effort requirement under TANF) the year after the TANF grant penalty is assessed.

The notice of proposed rulemaking (NPRM) was published in the Federal Register on July 13, 2023 (88 FR 44760 through 44764). The comment period ended September 11, 2023. In the NPRM, we proposed to add a new provision to Part 305, “Program Performance Measures, Standards, Financial Incentives and Penalties,” to explain when OCSS may exercise its authority to provide short-term relief from certain performance requirements related to the PEP, support order establishment, and current collections performance standards when states are unable to meet those requirements due to the impact of natural disasters or other calamities on state child support program operations. Specifically, we proposed adding a new paragraph (f) to § 305.61, “Penalty for failure to meet IV-D requirements,” to explain when OCSS may exercise its authority, during and subsequent to natural disasters and other calamities, to temporarily modify the performance requirements for states to meet the PEP standard of 90 percent under 45 CFR 305.40(a)(1), the support order establishment standard of 40 percent under 45 CFR 305.40(a)(2), and the current collections standard of 35 percent under 45 CFR 305.40(a)(3), to a lower level to avoid imposing a financial penalty on states. In addition, we proposed that OCSS may set aside adverse data reliability audit findings under section 452(g) of the Act during the same time period.

OCSS received 16 sets of comments to the July 2023 NPRM from states, organizations, and other interested entities and individuals, which were posted on www.regulations.gov. OCSS reviewed and analyzed the comments and considered them in finalizing the rule. All comments received in response to this rulemaking were supportive of the proposed relief as outlined in the NPRM. We received several comments to the NPRM that included additional suggestions and recommendations, and we respond to those comments below.

Comment 1: Several commenters requested clarification around data reliability audit findings in relation to this proposed regulation. Some commenters had concerns regarding whether requests for relief from adverse data reliability audit findings related to the three performance measures that are the subject of this rule should coincide or be submitted subsequent to the request for relief from one or more performance requirements. One commenter requested clarification regarding the process for requesting relief from adverse data reliability audit findings and whether such relief can be sought without a prior or concurrent request for modification of performance requirements.

A commenter requested clarification regarding the types of adverse data reliability audit findings that could be set aside under the new rule. A commenter observed that the rule does not address the arrears or cost-effectiveness performance measures and, while acknowledging that failure to meet these performance measures does not result in penalties, such performance could still be implicated in data reliability audit findings.

A commenter requested clarification on whether substandard performance occurring prior to an approved performance modification period would carry over to the post performance modification period. One commenter asked for clarification on whether a state would still need to do a data reliability audit if data reliability errors were found, or if states could instead plan on doing the Data Reliability Review/data reliability audit on a state's regular schedule.

Response 1: Data reliability audits for the period(s) which performance requirement modifications are requested will continue to occur after a request is made under section 305.61(f). A state may submit a request to set aside adverse data reliability audit findings to avoid the imposition of a financial penalty subsequent to or concurrent with a request to modify performance requirements. A state can request relief from adverse data reliability audit findings without a request to modify performance requirements.

Relief from adverse data reliability audit findings to avoid the imposition of a financial penalty only applies to data related to the PEP, order establishment, and current collections performance measures, and only during those periods for which the state seeks and OCSS grants relief, as provided for under this rule. As such, the performance measures of arrearage collections and cost-effectiveness, which are not penalty performance measures under 45 CFR 305.40, are outside the scope of this rulemaking. States should make every effort to demonstrate how, and for what periods, the natural disaster or other calamity directly results in a reduction in performance. If the state expects a continued reduction in performance due to the natural disaster or calamity for subsequent Federal fiscal years, the state should submit a subsequent request for a reduction in the affected performance measures for each fiscal year.

The process to determine what type of audit a state will receive has not changed. States that could have been exempt from a data reliability audit will go back into the annual audit pool for the next audit cycle if, during the current audit cycle, they either fail to meet a performance standard, fail to report reliable data, or achieve marginal performance on any line evaluated for data reliability.

Comment 2: A number of commenters requested more information around timeframes to make the request for relief and timeframes for OCSS to respond to their request for relief. One commenter observed that there did not seem to be a timeframe attached to when an initial application for relief should be submitted and recommended that the rule include language similar to the requirement for submitting subsequent requests (“as soon as the adverse effect of the natural disaster or other calamity giving rise to the request is known to the state”). Another commenter stated that the requirement to submit a subsequent request as soon as the adverse effect is known should be clarified or deleted, and that a requirement of timeliness is overly strict and could allow for a denial based on an untimely request.

Another commenter recommended adding a clarification regarding whether a state can make the same request multiple years in a row.

Five commenters requested that the rule include a timeframe for OCSS to respond to state applications for relief, two of them recommending a period of 30 days. One commenter recommended the creation of a standardized request form to apply for relief. The commenter also suggested that such a form should include instructions on what specific or support information is needed.

Response 2: During times of natural disasters and other calamities, states will need flexibility in determining the impacts to their programs and adequate time and resources to gather the necessary data to substantiate the state's request for relief. Therefore, the regulation does not impose a specific timeframe for initial application or subsequent requests.

Similarly, we believe states should have the maximum flexibility to submit a request for relief in the form that the state determines is most reasonable. Each state's circumstances will differ in the type of disaster or calamity and impacts to performance. Creating a standardized form would reduce that flexibility for states. Additionally, states may request relief by following the procedures specified in paragraphs (f)(4), (5) and (6), and OCSS will provide timely communication regarding the state's request.

We have contemplated that a state could request relief on a fiscal year by fiscal year basis, following the same process outlined in the rule. As we have previously stated, a natural disaster or other calamity includes state chief executive officer-declared states of emergency, pandemics, events designated by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170) and declared public health emergencies under section 319 of the Public Health Service Act (42 U.S.C. 247d). Therefore, the state must demonstrate, based on available data, that such natural disaster or other calamity has directly resulted in a reduction in performance or is expected to result in a reduction in performance in subsequent fiscal years.

We agree with comments indicating that a timeframe for OCSS to respond to state applications for relief should be included in the rule. We have revised the final rule to include a 30-calendar day response time.

Comment 3: Some commenters requested the inclusion of language addressing equity and enforcement flexibility. One commenter asked OCSS to consider the adverse consequences of imposing financial penalties on states during emergent situations and urged the incorporation of language that recognizes the need for flexibility and prioritizes equity, to enable agencies to allocate resources where they are most needed. Another commenter requested clarification about whether child support programs could activate enforcement flexibility during natural disasters or other calamities, based on public need, even if the state knows that implementing this flexibility will reduce performance measures.

Response 3: We recognize natural disasters and other calamities may affect state child support program operations in a variety of ways and that states may need flexibility during emergent situations. As detailed in the rule, OCSS expects that a request to modify a state's performance requirements will include state-specific information describing the circumstances and justification for the requested relief, as well as the impact of the natural disaster or other calamity on the state's ability to comply with the standards. We also recognize that natural disasters and other calamities may not necessarily require relief from performance requirements. The current child support performance, audit, penalties, and incentives system is designed to drive performance. States that experience individual challenges that impact performance, whether these challenges are within or outside the states' immediate control, are motivated to recover from setbacks and strive to achieve performance goals, as states have over the last two decades.

Comment 4: A few commenters asked for clarification about local, regional, and national emergencies, and whether joint requests could be made by more than one state in a particular affected region.

One commenter stated that although the information required to apply for relief is state-specific, there are national and global emergencies that impact all states and territories and that other emergencies may impact specific regions of the country. This commenter asked us to consider the option for states to submit a joint request for relief when more than one state is affected by a disaster.

Two commenters asked for clarification on how the rule would apply if a disaster only impacted one part of a state.

Response 4: While we understand that disasters can affect more than one state in certain regions, the rule is structured in a way that each state needs to provide information specific to that state to demonstrate that the disaster has directly impacted the state's ability to meet performance requirements or is expected to result in a reduction in performance. This is especially true with the data requirements, and each state, even within a region, may be impacted differently with respect to performance. It is not feasible for states to submit joint applications for relief, due to the unique impacts of an emergency on each state and the state-specific data required to substantiate the request for relief.

For those states where a natural disaster or other calamity is only impacting a part of the state, the state may apply for relief from performance requirements.

Comment 5: Several commenters suggested that OCSS provide the opportunity for an appeal if a state is denied the request to modify their performance requirements. An additional suggestion was that 45 CFR 301.14 could be used for this purpose.

Response 5: Adequate process already exists as part of the overall performance evaluation for a state to provide information and request consideration of special circumstances, so an administrative appeal before the Departmental Appeals Board of a denial of a state's request to modify its performance requirements is unnecessary. Under the existing process, if a state fails to meet their performance requirements, the state will be provided one year as their corrective action year as outlined under 45 CFR 305.61. During the corrective action year, OCSS will issue a warning letter to advise of the potential for a penalty if no improvement is made the following fiscal year, as outlined under 45 CFR 305.40, 305.61(a)(2) and 305.66. After the corrective action year, if a penalty is assessed, and the state is subject to the penalty, the state has the option to file an appeal with the Departmental Appeals Board, in accordance with 45 CFR 262.7.

The Departmental Appeals Board has limited jurisdiction under 45 CFR part 16, and for mandatory grants generally only penalties and disallowances are appealable. 45 CFR part 16, Appendix A. Its jurisdiction would not naturally extend to a denial of a state's request to modify its performance requirements.

Comment 6: A few states have requested that OCSS also include the option to provide IV-D agencies with an exception from the impact of increased Federal Medical Assistance Percentages rates on state-retained collections. Additionally, one other state agrees with the proposed rule, but requested that OCSS place limitations on the relief so that a state could not use this flexibility to gain an unfair advantage with respect to performance incentives. Another state suggested that OCSS allow data sharing among programs during times of national disasters and other calamities.

Response 6: These suggestions are beyond the scope of this rulemaking and would require legislative changes. OCSS does not have legislative authority. OCSS disagrees that placing additional limitations on the relief is necessary because the rule requires, in 45 CFR 305.61(f)(5), that the requesting state demonstrate to the satisfaction of the Secretary that the natural disaster or other calamity has directly resulted in a reduction in performance or is expected to result in a reduction in performance, based on data provided by the state.

Comment 7: One state commented that OCSS should require states to submit a disaster plan as part of their request for relief.

Response 7: While we appreciate the intent behind this comment, OCSS disagrees that states should be required to provide disaster plans as a part of the request for relief. We believe states should have the maximum flexibility to submit a request for relief in the form that the state determines is most reasonable. Each state's circumstances will differ in the type of disaster or calamity and possible impacts to performance.

Comment 8: One commenter suggested revisions to two subsections of the regulatory language. First, the commenter suggested rewording subsection (f)(4)(ii) and removing the term “impracticability of compliance” as the term is inherently imprecise and does not help to establish whether a natural disaster or other calamity may have an impact on a state's ability to comply with the performance requirements. Second, the commenter suggested replacing the term “will not” with the term “may not” in subsection (5)(i) as it is overly strict to require states to demonstrate that they “ will not meet one or more existing performance requirements, such that a performance penalty would apply.”

Response 8: We agree with the suggested changes to these subsections and have revised the final rule to reflect that language. We made these changes to clarify ambiguous language and to remove overly restrictive conditions on requests for relief.

Comment 9: One commenter suggested providing consideration for those instances where a state is unable to produce preliminary data due to the natural disaster or other calamity. Another commenter requested the option for states to request an extension to the submission of annual and quarterly reports when disasters occur toward the end of a reporting period.

Response 9: The final rule authorizes OCSS to determine the modified performance requirements based on the preliminary data provided by the state under 45 CFR 305.32(f), and as such, the preliminary data are necessary for the state to demonstrate that the natural disaster or other calamity has directly resulted in a reduction in performance or is expected to result in a reduction in performance. This final rule also allows OCSS to set aside adverse data reliability audit findings under section 452(g) for the same time period as the time period for which a modification of performance requirements is sought.

While we appreciate that a state's ability to meet reporting requirements may also be impacted by a natural disaster or other calamity, modifications to reporting deadlines are outside the scope of this rulemaking. During such events, additional flexibilities may be available to states beyond those available under title IV-D.

No new information collection requirements would be imposed by this regulation.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule meets the standards of Executive Order 13563 because it creates a short-term public benefit, at minimal cost to the Federal Government, by not imposing penalties against a state's TANF grant, during a time when public assistance funds are critically needed.

Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this final rule is significant and was accordingly reviewed by OMB.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires Federal agencies to determine, to the extent feasible, a rule's impact on small entities, explore regulatory options for reducing any significant impact on a substantial number of such entities, and explain their regulatory approach. The Secretary certifies that this rule will not result in a significant impact on a substantial number of small entities. The primary impact is on state governments. State governments are not considered small entities under the RFA.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an annual expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). That threshold level is currently approximately $177 million. This rule does not impose any mandates on state, local, or tribal governments, or the private sector, that will exceed this threshold in any year.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. OCSS believes it is not necessary to prepare a family policymaking assessment ( see Pub. L. 105-277) because this regulation does not impose requirements on states or families and thus will not have any impact on family well-being.

This final rule is not a major rule as defined in 5 U.S.C. 804(2).

Executive Order 13132 prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have federalism impact as defined in the Executive Order 13132.

Jeff Hild, Acting Assistant Secretary of the Administration for Children and Families approved this document on February 1, 2024.

For the reasons stated in the preamble, the Department of Health and Human Services amends 45 CFR part 305 as set forth below:

In the document published January 25, 2024, at 89 FR 4833, announcing the effective dates of amendments to its non-internet Protocol call authentication and robocall mitigation database rules, an incorrect Federal Register citation and an incorrect compliance date appeared in DATES . The Federal Register citation for the publication of the amendments to 47 CFR 64.6303(c) (amendatory instruction 9) and 47 CFR 64.6305(d), (e), (f), and (g) (amendatory instruction 12) is corrected to 88 FR 40096. The compliance date for the regulations at 47 CFR 4.6305(g) is corrected to May 28, 2024.

In the Federal Register of January 25, 2024, in FR Doc. 2024-01167, on page 4833, in the first column, correct the DATES caption to read: “The amendments to 47 CFR 64.6303(c) (amendatory instruction 9) and 47 CFR 64.6305(d), (e), (f), and (g) (amendatory instruction 12), published at 88 FR 40096, June 21, 2023, and the amendments to 47 CFR 64.6305(d)(2)(ii) and (iii), (e)(2)(ii), and (f)(2)(iii) (amendatory instruction 5), published at 88 FR 43446, July 10, 2023, are effective February 26, 2024. The compliance date for 47 CFR 64.6305(g) is May 28, 2024.”

This is a synopsis of the Commission's Report and Order, MB Docket No. 23-197, adopted February 26, 2024, and released February 26, 2024. The full text of this Commission decision is available online at https://apps.fcc.gov/ecfs/. The full text of this document can also be downloaded in Word or Portable Document Format (PDF) at https://www.fcc.gov/edocs. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13.

The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

This is a synopsis of the Commission's Report and Order, MB Docket No. 23-198, adopted February 26, 2024, and released February 26, 2024. The full text of this Commission decision is available online at https://apps.fcc.gov/ecfs/. The full text of this document can also be downloaded in Word or Portable Document Format (PDF) at https://www.fcc.gov/edocs. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13.

The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

This is a synopsis of the Commission's Report and Order, MB Docket No. 23-209, adopted February 26, 2024, and released February 26, 2024. The full text of this Commission decision is available online at https://apps.fcc.gov/ecfs/. The full text of this document can also be downloaded in Word or Portable Document Format (PDF) at https://www.fcc.gov/edocs. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13.

The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

The Atlantic herring harvest in the United States is managed under the Atlantic Herring Fishery Management Plan (FMP) developed by the New England Fishery Management Council and approved by NMFS. The FMP divides the herring annual catch limit (ACL) among three management areas, one of which has two sub-areas. It divides Area 1 (located in the Gulf of Maine (GOM)) into an inshore section (Area 1A) and an offshore section (Area 1B). Area 2 is located in the coastal waters between Massachusetts and North Carolina, and Area 3 is on Georges Bank (GB). The FMP considers the herring stock complex to be a single stock, but there are inshore (GOM) and offshore (GB) stock components. The GOM and GB stock components segregate during spawning and mix during feeding and migration. Each management area has its own sub-ACL to allow greater control of the fishing mortality on each stock component.

NMFS published Amendment 4 to the FMP (76 FR 11373, March 2, 2011) to address ACL and accountability measure (AM) requirements. As a way to account for ACL/sub-ACL overages in the herring fishery, Amendment 4 established an AM that requires NMFS to deduct any ACL/sub-ACL overages from the ACL and corresponding sub-ACL of the year following the catch overage determination. Amendment 4 also specified that NMFS will announce overage deductions in the Federal Register prior to the start of the fishing year, if possible.

NMFS published Framework Adjustment 2 to the FMP and the 2013-2015 specifications for the herring fishery on October 4, 2013 (78 FR 61828). Among other measures, Framework 2 allowed for the carryover of unharvested catch ( i.e., underages) in the year following a fishing year's catch accounting determination. Provided that annual total catch does not exceed the ACL, up to 10 percent of each sub-ACL may be carried over and added to the following year's sub-ACL. The carryover provision allows a sub-ACL increase for a management area, but it does not allow a corresponding increase to the ACL.

NMFS published Framework Adjustment 9 to the FMP on July 19, 2022 (87 FR 42962). Among other measures, Framework 9 revised the catch overage provision so that only overages greater than 10 percent of a sub-ACL must be deducted from the ACL and the corresponding sub-ACL in the year following the total catch accounting determination. Additionally, provided total catch does not exceed the ACL, overage deductions equal the overage amount above the 10-percent overage deduction threshold. For example, if the ACL is not exceeded, a 13-percent sub-ACL overage would require a 3-percent ACL and sub-ACL deduction.

NMFS published the 2023-2025 specification for the herring fishery on March 23, 2023 (88 FR 17397) to initially set sub-ACLs for each of the four management areas in the herring fishery.

NMFS recently completed the catch accounting for 2022 and determined there were catch overages in Areas 1A, 1B, and 3 and a catch underage in Area 2. To account for the overages, this action implements allowable deductions for catch overages in Areas 1A and 1B from the Area 1A and 1B 2024 sub-ACLs and from the ACL. Catch in 2022 exceeded the 10-percent overage deduction threshold for Area 1A (12 percent); therefore, this action deducts 2 percent (42 metric tons (mt)) of the 2022 Area 1A overage from the 2024 Area 1A sub-ACL and ACL. Because the 2022 sub-ACL for Area 1B was zero, the full amount of the 2022 overage (6 mt) is deducted from the 2024 Area 1B sub-ACL and ACL. The overage in Area 3 (1 mt) is less than the overage deduction threshold (greater than 10 percent of the sub-ACL or 182 mt); therefore, this action makes no deductions to the 2024 Area 3 sub-ACL. To account for the underage, this action carries over unharvested 2022 Area 2 catch to the 2024 Area 2 sub-ACL but does not increase the ACL. Allowable carryover for Area 2 is up to 10 percent of 2022 sub-ACL (114 mt); therefore, this action carries over 114 mt of the 1,221 mt unharvested Area 2 catch to the 2024 Area 2 sub-ACL. Table 1 provides catch details for 2022 and the corresponding adjustments for the 2024 sub-ACLs. The ACL is reduced by overage deductions, but not increased by carryover; therefore, this action reduces the 2024 ACL by 48 mt for overages in Areas 1A and 1B that occurred in 2022.

NMFS calculated the amount of herring landings in 2022 based on dealer reports (Federal and state) of herring purchases, supplemented by vessel trip reports (VTR) and vessel monitoring system (VMS) reports (Federal and states of Maine and Massachusetts) of herring landings. NMFS generally uses dealer reports to estimate herring landings; however, if the amount of herring reported via VTR exceeds the amount of herring reported by the dealer by 10 percent or more, NMFS assumes the dealer report for that trip was in error and uses the VTR report instead. NMFS assigns herring landings to individual herring management areas using VMS reports or latitude and longitude coordinates from VTR reports when a VMS report is not available. NMFS uses recent fishing activity to assign landings to a management area if dealer reports do not have a corresponding VTR or VMS catch report.

NMFS estimates herring discards by extrapolating discards from herring trips observed by the Northeast Fisheries Observer Program to all herring trips (observed and unobserved) according to gear and herring management area. Because research set-aside (RSA) is removed from management area sub-ACLs at the beginning of the fishery year, when appropriate, NMFS tracks RSA catch but does not count it towards the herring sub-ACLs. No RSA was specified for 2022 or is specified for 2024.

The NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action. Notice and comment are impracticable, unnecessary, and contrary to the public interest because a delay would potentially impair achievement of the management plan's objectives of preventing overfishing and achieving optimum yield by impairing a vessels' ability to harvest available catch allocations. Allowing for prior notice and public comment on this adjustment is also impracticable because the adjustments need to be implemented as close to the January 1 start of the fishing year as possible. Further, prior notice and public comment is also unnecessary because this is a nondiscretionary action required by provisions of Amendment 4 and Frameworks 2, 6, 8, and 9 which were previously subject to public notice and comment. The adjustments required by these regulations are formulaic. This action simply effectuates these mandatory calculations. The proposed and final rules for Frameworks 2, 6, 9 and Amendment 4 explained the need and likelihood for adjustments to the sub-ACLs based on final catch and were subject to notice and opportunity to comment. Frameworks 2 and 8, specifically, provided prior notice of the need to distribute carryover catch. These actions provided a full opportunity for the public to comment on the substance and process of this action.

For the same reasons as noted above, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and make the rule effective upon publication in the Federal Register . To prevent confusion and potential overharvests, it will be in the best interest of the fleet and the herring resource to adjust the specifications as close to the start of the fishing year as possible. Management Areas 1B and 2 open on January 1 and Area 1A opens on June 1. The adjustments in this action reduce catch in Areas 1A and 1B and increase catch in Area 2. Putting in place the adjusted specifications as soon as possible will provide the fleet with an opportunity to develop their business plans in sufficient time to avoid an overharvest in Areas 1A and 1B and facilitate the harvest of additional catch in Area 2.

This action is required by 50 CFR part 648, subpart K and is exempt from review under Executive Order 12866.

This final rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.111. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102 and final 2024 allocations were published on December 21, 2023 (88 FR 88266).

The final rule implementing amendment 5 to the Summer Flounder FMP, as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider three criteria in the evaluation of requests for quota transfers or combinations: (1) the transfers or combinations would not preclude the overall annual quota from being fully harvested; (2) the transfers address an unforeseen variation or contingency in the fishery; and (3) the transfers are consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Regional Administrator has determined these three criteria have been met for the transfer approved in this notification.

Virginia is transferring 8,186 pounds (lb; 3,713 kilograms (kg)) to Massachusetts through a mutual agreement between the States. This transfer was requested to repay landings made by an out-of-state permitted vessel under a safe harbor agreement. The revised summer flounder quotas for 2024 are: Virginia, 1,879,801 lb (852,663 kg); and Massachusetts, 607,693 lb (275,645 kg).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.102(c)(2)(i) through (iv), which was issued pursuant to section 304(b), and is exempted from review under Executive Order 12866.

NMFS manages the GOA groundfish fisheries in the exclusive economic zone of the GOA under the FMP. The Council prepared the FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq. ). Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600, 679, and 680.

The FMP and its implementing regulations require that NMFS, after consultation with the Council, specify the total allowable catch (TAC) for each target species, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (§ 679.20(a)(1)(i)(B) and § 679.20(a)(2)). Section 679.20(c)(1) further requires that NMFS publish and solicit public comment on proposed annual TACs and apportionments thereof, Pacific halibut prohibited species catch (PSC) limits, and seasonal allowances of pollock and Pacific cod. Upon consideration of those public comments, NMFS must publish a notification of final harvest specifications for up to 2 fishing years as annual TACs and apportionments, Pacific halibut PSC limits, and seasonal allowances of pollock and Pacific cod, per § 679.20(c)(3)(ii). The final harvest specifications set forth in tables 1 through 27 of this rule reflect the outcome of this process, as required at § 679.20(c).

The proposed 2024 and 2025 harvest specifications for groundfish of the GOA and Pacific halibut PSC limits were published in the Federal Register on December 7, 2023 (88 FR 85184). Comments were invited and accepted through January 8, 2024. NMFS received 2 letters raising 7 distinct comments during the public comment period for the proposed GOA groundfish harvest specifications. In December 2023, NMFS consulted with the Council regarding the 2024 and 2025 harvest specifications. After considering public comment at public meetings and submitted for the proposed rule (88 FR 85184), as well as current biological, ecosystem, and socioeconomic data, NMFS is implementing the final 2024 and 2025 harvest specifications, as recommended by the Council. For 2024, the sum of the TAC amounts is 520,020 mt. For 2025, the sum of the TAC amounts is 483,700 mt.

NMFS published a final rule implementing Amendment 122 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands (BSAI) Management Area (BSAI FMP) (88 FR 53704, August 8, 2023), establishing the Pacific Cod Trawl Cooperative Program (PCTC Program) to allocate BSAI Pacific cod quota share to qualifying groundfish License Limitation Program (LLP) license holders and qualifying processors. The PCTC Program is a limited access privilege program for the harvest of Pacific cod in the BSAI trawl catcher vessel (CV) sector.

The PCTC Program modifies existing GOA sideboard limits and associated GOA halibut PSC limits for non-exempt American Fisheries Act (AFA) CVs and LLP license holders and closes directed fishing where the revised sideboard limits are too small to support a directed fishery. All GOA non-exempt AFA CVs and associated AFA LLP licenses are sideboarded in aggregate for all GOA groundfish fishing activity and for GOA halibut PSC based on their GOA catch history during the qualifying years 2009 through 2019, except when participating in the Central Gulf of Alaska (Central GOA) Rockfish Program. In addition, the ratio used to apportion GOA halibut PSC limits is modified, and the five seasonal apportionments based on that sideboard ratio is reduced to a single aggregate annual amount. Amendment 122 also closes directed fishing to all GOA non-exempt AFA CVs and LLP licenses for the following species categories: Southeast Outside (SEO) District of the Eastern GOA pollock, Western GOA shallow-water flatfish, Central and Eastern GOA deep-water flatfish, Central GOA dusky rockfish, and Eastern GOA and Central GOA Pacific ocean perch. NMFS will no longer publish AFA Program sideboard limits for these specific species or species groups in the Federal Register as part of the annual groundfish harvest specifications, and instead table 56 to 50 CFR part 679 lists that directed fishing for these species is prohibited to non-exempt AFA CVs. Amendment 122 and its implementing regulations affect the calculation and establishment of the groundfish sideboard limits and halibut PSC limits discussed below under the sections “American Fisheries Act (AFA) Catcher/Processor and Catcher Vessel Groundfish Harvest Limits” and “Non-Exempt AFA Catcher Vessel Halibut PSC Limits.”

In December 2023, the Council's Scientific and Statistical Committee (SSC), its Advisory Panel (AP), and the Council reviewed the most recent biological, ecosystem, socioeconomic, and harvest information about the condition of the GOA groundfish stocks. The Council's GOA Groundfish Plan Team (Plan Team) compiled and presented this information in the 2023 SAFE report for the GOA groundfish fisheries, dated November 2023 (see ADDRESSES ). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem by including risk tables and information from the GOA Ecosystem Status Report (ESR).

The ESRs compile and summarize information about the status of the Alaska marine ecosystems for the Plan Team, SSC, AP, Council, NMFS, and the public, and they are updated annually. These ESRs include ecosystem report cards, ecosystem assessments, and ecosystem status indicators ( i.e., climate indices, sea surface temperature), which together provide context for ecosystem-based fisheries management in Alaska. The ESRs inform stock assessments and are integrated in the annual harvest recommendations through inclusion in stock assessment-specific risk tables. The ESRs provide context for the SSC's recommendations for OFLs and ABCs, as well as for the Council's TAC recommendations. The SAFE reports and the ESRs are presented to the Plan Team and at the October and December Council meetings before the SSC, AP, and Council make groundfish harvest recommendations and aid NMFS in implementing these annual groundfish harvest specifications.

The SAFE report also includes information on the economic condition of the groundfish fisheries off Alaska through the Economic Status Report. The SAFE report provides information to the Council and NMFS for recommending and setting, respectively, annual harvest levels for each stock, documenting significant trends or changes in the resource, marine ecosystems, and fisheries over time, and assessing the relative success of existing Federal fishery management programs. From these data and analyses, the Plan Team recommends, and the SSC sets, an overfishing level (OFL) and ABC for each species and species group. The 2023 SAFE report was made available for public review during the public comment period for the proposed harvest specifications.

In previous years, the greatest changes from the proposed to the final harvest specifications were based on recent NMFS stock surveys, which provide updated estimates of stock biomass and spatial distribution, and changes to the models used for producing stock assessments. At the November 2023 Plan Team meeting, NMFS scientists presented updated and new survey results, changes to stock assessment models, and accompanying stock assessment estimates for groundfish species and species groups that are included in the 2023 SAFE report per the stock assessment schedule found in the 2023 SAFE report introduction. The SSC reviewed this information at the December 2023 Council meeting. Changes from the proposed to the final 2024 and 2025 harvest specifications are discussed below.

The final 2024 and 2025 OFLs and ABCs are based on the best scientific information available, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass, and the final 2024 and 2025 TACs are based on the best scientific and socioeconomic information available. The FMP specifies the formulas, or tiers, to be used to compute OFLs and ABCs. The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fisheries scientists. This information is categorized into a successive series of six tiers to define OFL and ABC amounts, with Tier 1 representing the highest level of information quality available and Tier 6 representing the lowest level of information quality available. The Plan Team used the FMP tier structure to calculate OFL and ABC amounts for each groundfish species. The SSC adopted the final 2024 and 2025 OFLs and ABCs recommended by the Plan Team, with the exception of the ABC for pollock in the combined Western and Central Regulatory Areas and the West Yakutat District of the Eastern Regulatory Area (the W/C/WYK), and the ABC apportionments by area for shortraker rockfish and other rockfish.

For pollock, the SSC did not accept the GOA Plan Team's recommended ABC because of concerns about discrepancies between model predicted and survey trends. Instead, the SSC recommended a reduction from max ABC for 2024.

For shortraker rockfish sub-area apportionments of ABC, the Plan Team deliberated on the author's recommended model change because the new apportionment method of using both trawl and longline indices may constrain fisheries within the Central GOA. The Plan Team recommended accepting the new apportionment method but applying a stair-step between the methods to alleviate concerns highlighted by the public during the meeting. The SSC received public testimony that also highlighted allocation limitations. Public testimony asserted that there is a high probability that the reduction in a Central GOA sub-area apportionment of ABC could result in fishery closure. Sub-area apportionments of ABCs may be a constraint when species are allocated to catch share programs or sectors through regulation. As there is no current conservation concern for shortraker rockfish, the SSC recommended the status quo apportionment method. The SSC acknowledges that this differs from the author and Plan Team recommendation for this stock as well as the SSC recommendation for GOA rougheye and blackspotted rockfish, which uses both trawl and longline indices for apportionment.

For other rockfish sub-area apportionments of ABC, the Plan Team recommended that the W/C and WYK sub-area ABCs be combined for 2025. The Plan Team rationale for this recommendation is that these non-target species are poorly sampled by the trawl survey, there are no major changes in fishing behavior, good species-specific catch data is available, and most of the biomass is in the Southeast Outside (SEO) District of the Eastern Regulatory Area where trawling is prohibited. Further, recent analyses suggest there is little to no genetic structure in rockfish in general, and evidence of local depletion has not been observed. The Plan Team recommended that the Council engage in the Spatial Management Policy for this stock. After discussing this recommendation and considering related public testimony, the SSC agreed with the Plan Team recommendation for 2024. This change will align with the ABC apportionment for GOA Demersal Shelf Rockfish (DSR) when they are moved to a separate assessment for the 2025 fishery.

For Pacific ocean perch, the Plan Team recommended specifying a GOA-wide OFL for consistency with stock definition and stock status determination criteria. The SSC agreed with the Plan Team's recommendation.

The Council adopted the SSC's OFLs and ABCs and the AP's TAC recommendations. The final TAC recommendations are based on the ABCs and are adjusted for other biological and socioeconomic considerations, including maintaining the sum of all TACs within the required OY range of 116,000 to 800,000 mt.

The Council recommended 2024 and 2025 TACs that are equal to ABCs for pollock in the SEO District, sablefish, shallow-water flatfish in the Central GOA and WYK and SEO Districts, deep-water flatfish, rex sole, arrowtooth flounder in the Central GOA and WYK District, flathead sole in the Central GOA and WYK and SEO Districts, Pacific ocean perch; northern rockfish, shortraker rockfish, dusky rockfish, rougheye and blackspotted rockfish, demersal shelf rockfish, thornyhead rockfish, other rockfish in the W/C/WYK, Atka mackerel, big skate, longnose skate, other skates, sharks, and octopuses in the GOA. The Council recommended TACs for 2024 and 2025 that are less than the ABCs for pollock, Pacific cod, shallow-water flatfish in the Western Regulatory Area (Western GOA), arrowtooth flounder in the Western GOA and SEO District, flathead sole in the Western GOA, and other rockfish in the SEO District. For sub-area apportionments of ABCs, refer to tables 1 and 2.

The combined W/C/WYK pollock TAC and the GOA Pacific cod TACs are set to accommodate the State of Alaska's (State's) guideline harvest levels (GHLs) so that the ABCs for pollock and Pacific cod are not exceeded. The Western GOA shallow-water flatfish, Western GOA arrowtooth flounder, and Western GOA flathead sole TACs are set to allow for increased harvest opportunities for these target species while conserving the halibut PSC limit for use in other, more fully utilized fisheries. Similarly, the SEO District arrowtooth flounder TAC is set lower than ABC to conserve halibut PSC limit for use in other fisheries or because there is limited commercial interest and participation in this fishery. The other rockfish TAC in the SEO District is set to reduce the amount of discards of the species in that complex.

The final 2024 and 2025 harvest specifications approved by the Secretary of Commerce are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative outlined in the FMP, as well as the Final EIS and ROD, because they were set through the harvest specifications process, none of the TACs exceed the recommended ABCs, and the sum of all TACs is within the OY range (see ADDRESSES ).

NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of the groundfish stocks as described in the final 2023 SAFE report, while also accounting for ecosystem and socioeconomic information presented in the 2023 SAFE report (which includes the GOA ESR). NMFS also finds that the Council's recommendations for TACs are consistent with the biological condition of groundfish stocks as adjusted for other biological and socioeconomic considerations, including maintaining the sum of all TACs within the OY range. NMFS reviewed the Council's recommended TACs and apportionments, and NMFS approves these harvest specifications under § 679.20(c)(3)(ii). The apportionment of TAC amounts among gear types and sectors, processing sectors, and seasons is discussed below.

Tables 1 and 2 list the final 2024 and 2025 OFLs, ABCs, TACs, and area apportionments of groundfish in the GOA. The 2024 harvest specifications set in this final action supersede the 2024 harvest specifications previously set in the final 2023 and 2024 harvest specifications (88 FR 13238, March 2, 2023). The 2025 harvest specifications will be superseded in early 2025 when the final 2025 and 2026 harvest specifications are published. Pursuant to this final action, the 2024 harvest specifications therefore will apply for the remainder of the current year (2024), while the 2025 harvest specifications are projected only for the following year and will be superseded in early 2025 by the final 2025 and 2026 harvest specifications. Because this final action will be superseded in early 2025 by the publication of the final 2025 and 2026 harvest specifications, it is projected that this final action will implement the harvest specifications for the GOA for approximately 1 year.

NMFS's apportionment of groundfish species are based on the distribution of biomass among the regulatory areas over which NMFS manages the species. Additional regulations that govern the apportionment of pollock, Pacific cod, and sablefish and are described below.

The ABC for the pollock stock in the combined W/C/WYK includes the amount for the GHL established by the State for the Prince William Sound (PWS) pollock fishery. The Plan Team, SSC, AP, and Council have recommended that the sum of all State waters and Federal waters pollock removals from the GOA not exceed ABC recommendations. For 2024 and 2025, the SSC recommended and the Council approved the W/C/WYK pollock ABC, including the amount to account for the State's PWS GHL. At the November 2023 Plan Team meeting, State fisheries managers recommended setting the PWS pollock GHL at 2.5 percent of the annual W/C/WYK pollock ABC. For 2024, this yields a PWS pollock GHL of 4,769 mt, an increase of 18 percent from the 2023 PWS pollock GHL of 4,027 mt. For 2025, the PWS pollock GHL is 3,942 mt, a decrease of 17 percent from the 2024 PWS pollock GHL of 4,769 mt. After the GHL reductions, the 2024 and 2025 pollock ABCs for the combined W/C/WYK areas are then apportioned between four statistical areas (Areas 610, 620, 630, and 640) as both ABCs and TACs, as described below and detailed in tables 1 and 2. The ABCs and TACs for the four statistical areas, plus the State PWS GHL, do not exceed the combined W/C/WYK ABC.

Apportionments of pollock to the W/C/WYK areas are considered to be “apportionments of annual catch limits (ACLs)” rather than “ABCs.” This more accurately reflects that such apportionments address management, rather than biological or conservation, concerns. In addition, apportionments of the ACL in this manner allow NMFS to balance any transfer of TAC among Areas 610, 620, and 630 pursuant to § 679.20(a)(5)(iv)(B) to ensure that the combined apportionments of ACL and ABC for the W/C/WYK, as well as the W/C/WYK TAC, are not exceeded.

NMFS establishes pollock TACs in the Western (Area 610) and Central (Areas 620 and 630) Regulatory Areas and the West Yakutat (Area 640) and the SEO (Area 650) Districts of the GOA (see tables 1 and 2). NMFS also establishes seasonal apportionments of the annual pollock TACs in the Western and Central Regulatory Areas of the GOA among Statistical Areas 610, 620, and 630. Additional detail on area apportionments and seasonal allowances is provided in the Apportionments of Pollock TAC Among Seasons and Regulatory Areas, and Allocations for Processing by Inshore and Offshore Components section of this rule; tables 3 and 4 list these amounts.

The 2024 and 2025 Pacific cod TACs are set to accommodate the State's GHLs for Pacific cod in State waters in the Western and Central Regulatory Areas, as well as in PWS (in the Eastern Regulatory Area). The Plan Team, SSC, AP, and Council recommended that the sum of all State waters and Federal waters Pacific cod removals from the GOA not exceed ABC recommendations. The Council recommended setting the 2024 and 2025 Pacific cod TACs in the Western, Central, and Eastern Regulatory Areas to account for State GHLs. Therefore, the 2024 Pacific cod TACs are less than the ABCs by the following amounts: (1) Western GOA, 2,624 mt; (2) Central GOA, 5,148 mt; and (3) Eastern GOA, 734 mt. The 2025 Pacific cod TACs are less than the ABCs by the following amounts: (1) Western GOA, 2,291 mt; (2) Central GOA, 4,495 mt; and (3) Eastern GOA, 641 mt. These amounts reflect the State's 2024 and 2025 GHLs in these areas, which are 30 percent of the Western GOA ABC and 25 percent of the Eastern and Central GOA ABCs.

The Western and Central GOA Pacific cod TACs are allocated among various gear and operational sectors. NMFS also establishes seasonal apportionments of the annual Pacific cod TACs in the Western and Central Regulatory Areas. The Pacific cod sector and seasonal apportionments are discussed in detail in the Annual and Seasonal Apportionments of Pacific Cod TAC section and in tables 5 and 6 of this rule.

The Council's recommendation for sablefish area apportionments takes into account the prohibition on the use of trawl gear in the SEO District of the Eastern Regulatory Area (§ 679.7(b)(1)) and makes available 5 percent of the combined Eastern Regulatory Area TACs to vessels using trawl gear for use as incidental catch in other trawl groundfish fisheries in the WYK District (§ 679.20(a)(4)(i)). Tables 7 and 8 list the final 2024 and 2025 allocations of sablefish TAC to fixed gear and trawl gear in the GOA.

In October 2023, the Council's recommendations for the proposed 2024 and 2025 harvest specifications (88 FR 85184, December 7, 2023) were based largely on information contained in the final 2022 SAFE report for the GOA groundfish fisheries, dated November 2022. The final 2022 SAFE report for the GOA is available from the Council (see ADDRESSES ). The Council proposed that the final OFLs, ABCs, and TACs established for the 2024 groundfish fisheries (88 FR 13238, March 2, 2023) be used for the proposed 2024 and 2025 harvest specifications (88 FR 85184, December 7, 2023) pending completion and review of the 2023 SAFE report at the Council's December 2023 meeting.

As described previously, the SSC recommended the final 2024 and 2025 OFLs and ABCs as recommended by the Plan Team, with the exception of the 2024 pollock ABC and the shortraker rockfish and other rockfish ABC apportionments by subareas. The Council adopted as its recommendations the SSC's OFL and ABC recommendations and the AP's TAC recommendations for 2024 and 2025.

The final 2024 TACs are higher than the proposed 2024 TACs published in the proposed 2024 and 2025 harvest specifications (88 FR 85184, December 7, 2023) for pollock, Pacific cod, sablefish, shallow-water flatfish, deep-water flatfish, rex sole, arrowtooth flounder, flathead sole, Pacific ocean perch, northern rockfish, dusky rockfish, rougheye and blackspotted rockfish, other rockfish, and Atka mackerel. The final 2024 TACs are lower than the proposed 2024 TACs for shortraker rockfish, big skate, longnose skate, and other skates.

The final 2025 TACs are higher than the proposed 2025 GOA TACs for Pacific cod, sablefish, shallow-water flatfish, deep-water flatfish, rex sole, arrowtooth flounder, flathead sole, Pacific ocean perch, rougheye and blackspotted rockfish, other rockfish, and Atka mackerel. The final 2025 TACs are lower than the proposed 2025 TACs for pollock, northern rockfish, shortraker rockfish, dusky rockfish, big skates, longnose skates, and other skates. For the remaining target species ( i.e., demersal shelf rockfish, thornyhead rockfish, sharks, and octopus), the Council recommended the final 2024 and 2025 TACs that are the same as the proposed 2024 and 2025 TACs.

Additional information explaining the changes between the proposed and final ABCs is included in the final 2023 SAFE report, which was not completed and available when the Council made its proposed ABC and TAC recommendations in October 2023. At that time, the most recent stock assessment information was contained in the final 2022 SAFE report. For the final specifications, the final 2023 SAFE report contains the best and most recent scientific information on the condition of the groundfish stocks, harvest information, and ecosystem and socioeconomic information, as previously discussed in this preamble, and is available for review (see ADDRESSES ). The Council considered the 2023 SAFE report in December 2023 when it made recommendations for the final 2024 and 2025 harvest specifications. In the GOA, the total final 2024 TAC amount is 520,020 mt, an increase of 9.1 percent from the total proposed 2024 TAC amount of 476,537 mt. The total final 2025 TAC amount is 483,700 mt, an increase of 1.5 percent from the total proposed 2025 TAC amount of 476,537 mt. Table 1a summarizes the difference between the proposed and final TACs.

Annual stock assessments incorporate a variety of new or revised inputs, such as survey data or catch information, as well as changes to the statistical models used to estimate a species' biomass and population trend. Changes to biomass and ABC estimates are primarily based on fishery catch updates to species' assessment models.

The changes for individual species or species groups from the proposed 2024 TACs to the final 2024 TACs are within a range of plus 57 percent or minus 32 percent, and the changes from the proposed 2025 TACs to the final 2025 TACs are within a range of plus 57 percent or minus 32 percent. Differences in TACs are based on changes in the estimates of overall biomass in the stock assessment for 2024 and 2025, as compared to the estimates previously made for 2023 and 2024. For 2024, the species or species group with TAC increases greater than 10 percent are pollock, Pacific cod, deep-water flatfish, rougheye and blackspotted rockfish, and Atka mackerel. For 2025, the species or species group with TAC increases greater than ten percent are Pacific cod, deep-water flatfish, rougheye and blackspotted rockfish, and Atka mackerel. Based on changes in the estimates of biomass, the species group with TAC percentage decreases greater than ten percent are other skates for 2024 and 2025. For all other species and species groups, changes from the proposed 2024 and 2025 TACs to the final 2024 and 2025 TACs are a 10 percent or less change (either increase or decrease). These TAC changes correspond to associated changes in the OFLs and ABCs, as recommended by the SSC, AP, and Council.

Detailed information providing the basis for the changes described above are contained in the final 2023 SAFE report. The final TACs are based on the best scientific information available, including biological and socioeconomic information. These TACs are specified in compliance with the harvest strategy from the FMP and Final EIS and as described in the proposed and final rules for the 2024 and 2025 harvest specifications.

The final 2024 and 2025 TAC amounts for the GOA are within the OY range established for the GOA and do not exceed the ABC for any species or species group. The ABC does not exceed the OFL for any species or species group. Tables 1 and 2 list the final OFL, ABC, and TAC amounts for GOA groundfish for 2024 and 2025, respectively.

Section 679.20(b)(2) requires NMFS to set aside 20 percent of each TAC for pollock, Pacific cod, flatfish, sharks, and octopuses in reserve for possible apportionment at a later date during the fishing year. For 2024 and 2025, NMFS proposed reapportionment of all the reserves in the proposed 2024 and 2025 harvest specifications published in the Federal Register on December 7, 2023 (88 FR 85184). NMFS did not receive any public comments on the proposed reapportionments. For the final 2024 and 2025 harvest specifications, NMFS reapportions, as proposed, all the reserves for pollock, Pacific cod, flatfish, sharks, and octopuses back to the original TAC limit from which the reserve was derived (§ 679.20(b)(3)). This is being done because NMFS expects, based on recent harvest patterns, that such reserves are not necessary or that the entire TAC for each of these species will be caught. The TACs listed in tables 1 and 2 reflect reapportionments of reserve amounts to the original TAC limit for these species and species groups, i.e., each final TAC for the above-mentioned species or species groups contains the full TAC recommended by the Council.

In the GOA, pollock is apportioned by season and area and is further allocated for processing by inshore and offshore components. The pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630. These apportionments are divided into two equal seasonal allowances of 50 percent to the A season (January 20 through May 31) and 50 percent to the B season (September 1 through November 1) (§§ 679.20(a)(5)(iv)(B) and 679.23(d)(2)).

Effective in 2021, regulatory changes revised the number of GOA pollock seasons to two seasons from four seasons (85 FR 38093, June 25, 2020). The GOA pollock stock assessment continues to use a four-season methodology to determine pollock distribution in the Western and Central Regulatory Areas of the GOA to maintain continuity in the historical pollock apportionment time-series. Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630 in proportion to the distribution of pollock biomass determined by the most recent NMFS surveys, pursuant to § 679.20(a)(5)(iv)(A). The pollock chapter of the 2023 SAFE report (see ADDRESSES ) contains a comprehensive description of the apportionment and reasons for the minor changes from past apportionments. For purposes of specifying pollock TAC between two seasons for the Western and Central Regulatory Areas of the GOA, NMFS has summed the A and B season apportionments and the C and D season apportionments, using the four-season methodology, as calculated in the 2023 GOA pollock assessment. This yields the seasonal amounts specified for the A season and the B season, respectively.

Within any fishing year, the amount by which a pollock seasonal allowance is underharvested or overharvested may be added to, or subtracted from, the subsequent seasonal allowance for the Western and Central Regulatory Areas in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount is limited to 20 percent of the subsequent seasonal TAC apportionment for the statistical area. Any unharvested pollock above the 20-percent limit could be further distributed to the other statistical areas, in proportion to the estimated biomass in the subsequent season in those statistical areas and in an amount no more than 20 percent of the seasonal TAC apportionment in those statistical areas (§ 679.20(a)(5)(iv)(B)). The pollock TACs in the WYK and the SEO Districts of 5,565 mt and 9,749 mt, respectively, in 2024, and 4,601 mt and 9,749 mt, respectively, in 2025, are not allocated by season.

Tables 3 and 4 list the final 2024 and 2025 seasonal biomass distribution of pollock in the Western and Central Regulatory Areas, area apportionments, and seasonal allowances. The amounts of pollock for processing by the inshore and offshore components are not shown. Section 679.20(a)(6)(i) requires the allocation of 100 percent of the pollock TAC in all GOA regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of pollock amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by § 679.20(e) and (f). At this time, these incidental catch amounts of pollock are unknown and will be determined during the fishing year during the course of fishing activities by the offshore component.

Pursuant to § 679.20(a)(12)(i), NMFS seasonally allocates the 2024 and 2025 Pacific cod TACs in the Western and Central Regulatory Areas of the GOA among gear and operational sectors. In the Western and Central Regulatory Areas, a portion of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10, and a portion of the annual TAC is apportioned to the B season for jig gear from June 10 through December 31, for hook-and-line and pot gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.20(a)(12) and 679.23(d)(3)). NMFS also allocates the Pacific cod TACs annually between the inshore (90 percent) and offshore (10 percent) components in the Eastern Regulatory Area of the GOA (§ 679.20(a)(6)(ii)).

In the Central GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, then among CVs less than 50 feet (15.2 meters (m)) in length overall using hook-and-line gear, then among CVs equal to or greater than 50 feet (15.2 m) in length overall using hook-and-line gear, then among catcher/processors (CPs) using hook-and-line gear, then among CVs using trawl gear, then among CPs using trawl gear, and then among vessels using pot gear (§ 679.20(a)(12)(i)(B)). In the Western GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, then among CVs using hook-and-line gear, then among CPs using hook-and-line gear, then among CVs using trawl gear, then among CPs using trawl gear, and then among vessels using pot gear (§ 679.20(a)(12)(i)(A)). Excluding seasonal apportionments to the jig sector, NMFS seasonally apportions the remainder of the annual Pacific cod TACs in the Western GOA as 63.84 percent to the A season and 36.16 percent to the B season, and in the Central GOA as 64.16 percent to the A season and 35.84 percent to the B season.

Under § 679.20(a)(12)(ii), any overage or underage of the Pacific cod season allowance from the A season may be subtracted from, or added to, the subsequent B season allowance. In addition, any portion of the hook-and-line, trawl, pot, or jig sector allocations that is determined by NMFS as likely to go unharvested by a sector may be reallocated to other sectors for harvest during the remainder of the fishing year consistent with the reallocation priorities prescribed in regulation and the capability of a sector to harvest the remaining TAC.

Pursuant to § 679.20(a)(12)(i)(A) and (B), a portion of the annual Pacific cod TACs in the Western and Central GOA will be allocated to vessels with a Federal fisheries permit that use jig gear before the TACs are apportioned among other non-jig sectors. In accordance with the FMP, the annual jig sector allocations may increase to up to 6 percent of the annual Western and Central GOA Pacific cod TACs, depending on the annual performance of the jig sector (see table 1 in the final rule implementing Amendment 83 to the FMP for a detailed discussion of the jig sector allocation process (76 FR 74670, December 1, 2011)). Jig sector allocation increases are established for a minimum of 2 years. Jig sector allocation decreases are established for 1 year.

NMFS has evaluated the historical harvest performance of the jig sector in the Western and Central GOA and is establishing the 2024 and 2025 Pacific cod apportionments to this sector based on its historical harvest performance through 2023. NMFS did not evaluate the 2020 performance of the jig sectors in the Western and Central GOA because directed fishing was prohibited for all Pacific cod sectors in 2020 (84 FR 70438, December 23, 2019). Because of the closure, catch for the jig sectors could not reach 90 percent of the annual allocation that is required for a performance increase in the following year's allocation (87 FR 74102, December 2, 2022). For 2024 and 2025, NMFS allocates the jig sector 3.5 percent of the annual Pacific cod TAC in the Western GOA. The 2024 and 2025 allocations consist of a base allocation of 1.5 percent of the Western GOA Pacific cod TAC and performance increases of 2.0 percent. For 2024 and 2025, NMFS allocates the jig sector 2.0 percent of the annual Pacific cod TAC in the Central GOA. The 2024 and 2025 allocations consist of a base allocation of 1.0 percent of the Central GOA Pacific cod TAC and a performance increase of 1.0 percent. The 2025 allocations of the annual Pacific cod TACs in the Western and Central GOA to jig gear may change based on the harvest performance of the sector in 2024, which NMFS will evaluate in the 2025 and 2026 harvest specifications.

For 2024 and 2025, NMFS is apportioning the jig sector allocations for the Western and Central GOA between the A season (60 percent) and the B season (40 percent), pursuant to § 679.20(a)(12)(i). This is the same jig sector seasonal apportionment implemented in prior groundfish harvest specifications for the GOA and is consistent with Amendment 83 to the FMP (76 FR 44700, July 26, 2011).

Tables 5 and 6 list the seasonal apportionments and allocations of the 2024 and 2025 Pacific cod TACs.

Section 679.20(a)(4)(i) and (ii) require allocations of sablefish TACs for each of the regulatory areas and districts to fixed and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to fixed gear, and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, 95 percent of the TAC is allocated to fixed gear, and 5 percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may only be used to support incidental catch of sablefish using trawl gear while directed fishing for other target species (§ 679.20(a)(4)(i)).

In recognition of the prohibition against trawl gear in the SEO District of the Eastern Regulatory Area, the Council recommended, and NMFS approves, specifying for incidental catch the allocation of 5 percent of the combined Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District of the Eastern Regulatory Area. The remainder of the WYK District sablefish TAC is allocated to vessels using fixed gear. NMFS allocates 100 percent of the sablefish TAC in the SEO District to vessels using fixed gear. This results in 2024 allocations of 412 mt to trawl gear and 2,514 mt to fixed gear in the WYK District, a 2024 allocation of 5,320 mt to fixed gear in the SEO District, and a 2025 allocation of 414 mt to trawl gear in the WYK District. Table 7 lists the allocations of the 2024 sablefish TACs to fixed and trawl gear. Table 8 lists the allocations of the 2025 sablefish TACs to trawl gear.

The Council recommended that a trawl sablefish TAC be established for 2 years so that retention of incidental catch of sablefish by trawl gear could commence in January in the second year of the groundfish harvest specifications. Both the 2024 and 2025 trawl allocations are specified in these final harvest specifications in tables 7 and 8, respectively.

The Council also recommended that the fixed gear sablefish TAC be established annually to ensure that this Individual Fishing Quota (IFQ) fishery is conducted concurrently with the halibut IFQ fishery and is based on the most recent survey information. Since there is an annual assessment for sablefish and since the final harvest specifications are expected to be published before the IFQ season begins in March 2024, NMFS specifies the fixed gear sablefish TAC annually, rather than for 2 years, to ensure that the sablefish IFQ fishery is conducted concurrently with the halibut IFQ fishery. Concurrent sablefish and halibut IFQ fisheries reduce the potential for discards of halibut and sablefish in those fisheries. Accordingly, table 7 lists the 2024 fixed gear allocations, and the 2025 fixed gear allocations will be specified in the 2025 and 2026 harvest specifications.

With the exception of the trawl gear allocations that are provided to the Rockfish Program (see table 28c to 50 CFR part 679), directed fishing for sablefish with trawl gear in the GOA is closed during the fishing year. Also, fishing for groundfish with trawl gear is prohibited prior to January 20 (§ 679.23(c)). Therefore, it is not likely that the sablefish allocation to trawl gear will be reached before the effective date of these final 2024 and 2025 harvest specifications.

These final 2024 and 2025 harvest specifications for the GOA include the fishery cooperative allocations and sideboard limitations established by the Rockfish Program. Rockfish Program participants are primarily trawl CVs and trawl CPs, with limited participation by vessels using longline gear. The Rockfish Program assigns quota share and cooperative quota to participants for primary species (Pacific ocean perch, northern rockfish, and dusky rockfish) and secondary species (Pacific cod, rougheye and blackspotted rockfish, sablefish, shortraker rockfish, and thornyhead rockfish), allows a participant holding a LLP license with rockfish quota share to form a rockfish cooperative with other persons, and allows holders of CP LLP licenses to opt out of the fishery. The Rockfish Program also has an entry-level fishery for rockfish primary species for vessels using longline gear. Longline gear includes hook-and-line, jig, troll, and handline gear.

Under the Rockfish Program, rockfish primary species in the Central GOA are allocated to participants after deducting for incidental catch needs in other directed groundfish fisheries (§ 679.81(a)(2)). Participants in the Rockfish Program also receive a portion of the Central GOA TAC of specific secondary species. In addition to groundfish species, the Rockfish Program assigns a portion of the halibut PSC limit (191.4 mt) from the third season deep-water species fishery allowance for the GOA trawl fisheries to Rockfish Program participants (§ 679.81(d) and table 28d to 50 CFR part 679). The Rockfish Program also establishes sideboard limits to restrict the ability of harvesters operating under the Rockfish Program to increase their participation in other, non-Rockfish Program fisheries. These restrictions and halibut PSC limits are discussed in the Rockfish Program Groundfish Sideboard and Halibut PSC Limitations section of this rule.

Section 679.81(a)(2)(ii) and table 28e to 50 CFR part 679 require allocations of 5 mt of Pacific ocean perch, 5 mt of northern rockfish, and 50 mt of dusky rockfish to the entry-level longline fishery in 2024 and 2025. The allocations for the entry-level longline fishery may increase incrementally each year if the catch in the previous year exceeds 90 percent of the allocation of a species. The incremental increase in the allocation would continue each year until it reaches the maximum percent of the TAC assigned to the Rockfish Program for that species. In 2023, the catch of Pacific ocean perch, northern rockfish, and dusky rockfish did not attain the 90 percent threshold, and the final allocations for 2024 therefore remain the same as the 2023 allocations. The remainder of the TACs for the rockfish primary species are allocated to the CV and CP cooperatives (§ 679.81(a)(2)(iii)). Table 9 lists the allocations of the 2024 and 2025 TACs for each rockfish primary species to the entry-level longline fishery, the potential incremental increases for future years, and the maximum percent of the TACs assigned to the Rockfish Program that may be allocated to the rockfish entry-level longline fishery.

Section 679.81 requires allocations of rockfish primary species among various sectors of the Rockfish Program. Tables 10 and 11 list the final 2024 and 2025 allocations of rockfish primary species in the Central GOA to the entry-level longline fishery, and rockfish CV and CP cooperatives in the Rockfish Program. NMFS also is setting aside incidental catch amounts (ICAs) for other directed fisheries in the Central GOA of 3,500 mt of Pacific ocean perch, 300 mt of northern rockfish, and 250 mt of dusky rockfish. These amounts are based on recent average incidental catches of these species in the Central GOA by other groundfish fisheries.

Allocations among vessels belonging to CV or CP cooperatives are not included in these final harvest specifications. Rockfish Program applications for CV cooperatives and CP cooperatives are not due to NMFS until March 1 of each calendar year; therefore, NMFS cannot calculate 2024 and 2025 allocations in conjunction with these final harvest specifications (§ 679.81(f)). After receiving the Rockfish Program applications, NMFS will calculate the 2024 allocations for CV and CP cooperatives, as set forth in § 679.81(b), (c), and (e). NMFS will announce the 2024 allocations after March 1.

Section 679.81(c) and table 28c to 50 CFR part 679 require allocations of rockfish secondary species to CV and CP cooperatives in the Central GOA. CV cooperatives receive allocations of Pacific cod, sablefish from the trawl gear allocation, and thornyhead rockfish. CP cooperatives receive allocations of sablefish from the trawl gear allocation, rougheye and blackspotted rockfish, shortraker rockfish, and thornyhead rockfish. Tables 12 and 13 list the apportionments of the 2024 and 2025 TACs of rockfish secondary species in the Central GOA to CV and CP cooperatives.

Section 679.21(d) establishes annual halibut PSC limit apportionments to trawl gear and hook-and-line gear and authorizes the establishment of apportionments for pot gear. In December 2023 the Council recommended and NMFS approves halibut PSC limits of 1,705 mt for trawl gear, 256 mt for hook-and-line gear, and 9 mt for the demersal shelf rockfish (DSR) rockfish fishery in the SEO District for both 2024 and 2025, consistent with § 679.21.

The DSR fishery in the SEO District is defined at § 679.21(d)(2)(ii)(A). This fishery is apportioned 9 mt of the halibut PSC limit in recognition of its small-scale harvests of groundfish (§ 679.21(d)(2)(i)(A)). The separate halibut PSC limit for the DSR fishery is intended to prevent that fishery from being impacted from the halibut PSC incurred by other GOA fisheries. NMFS estimates low halibut bycatch in the DSR fishery because: (1) the duration of the DSR fishery and the gear soak times are short; (2) the DSR fishery occurs in the winter when there is less overlap in the distribution of DSR and halibut; and (3) the directed commercial DSR fishery has a low DSR TAC. The State of Alaska sets the commercial GHL for the DSR fishery after deducting estimates of DSR incidental catch in all fisheries (including halibut and subsistence) and allocation to the sport DSR fishery. In 2023, the commercial GHL fishery for DSR was closed due to concerns about declining DSR biomass.

The FMP authorizes the Council and NMFS to exempt specific gear from the halibut PSC limits. NMFS, after consultation with the Council, exempts pot gear, the sablefish IFQ fixed gear fishery categories, and jig gear from the non-trawl halibut PSC limit for 2024 and 2025. The Council recommended, and NMFS approves, these exemptions because: (1) the pot gear fisheries have low annual halibut bycatch mortality; (2) IFQ program regulations prohibit discard of halibut if any halibut IFQ permit holder on board a catcher vessel holds unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)); (3) some sablefish IFQ fishermen hold halibut IFQ permits and are therefore required to retain the halibut they catch while fishing sablefish IFQ; and (4) NMFS estimates negligible halibut mortality for the jig gear fisheries given the small amount of groundfish harvested by jig gear, the selective nature of jig gear, and the high survival rates of halibut caught and released with jig gear.

The best information available on estimated halibut bycatch consists of data collected by fisheries observers during 2023. The estimated halibut bycatch mortality through December 31, 2023 is 289 mt for trawl gear and 37 mt for hook-and-line gear for a total halibut mortality of 326 mt. The estimated halibut bycatch mortality was calculated using groundfish and halibut catch data from the NMFS Alaska Region's catch accounting system. This accounting system contains historical and recent catch information compiled from each Alaska groundfish fishery.

Section 679.21(d)(4)(i) and (ii) authorize NMFS to seasonally apportion the halibut PSC limits after consultation with the Council. The FMP and regulations require that the Council and NMFS consider the following information in seasonally apportioning halibut PSC limits: (1) seasonal distribution of halibut; (2) seasonal distribution of target groundfish species relative to halibut distribution; (3) expected halibut bycatch needs on a seasonal basis relative to changes in halibut biomass and expected catch of target groundfish species; (4) expected bycatch rates on a seasonal basis; (5) expected changes in directed groundfish fishing seasons; (6) expected actual start of fishing effort; and (7) economic effects of establishing seasonal halibut allocations on segments of the target groundfish industry. The Council considered information from the 2023 SAFE report, NMFS catch data, State of Alaska catch data, International Pacific Halibut Commission (IPHC) stock assessment and mortality data, and public testimony when apportioning the halibut PSC limits. NMFS concurs with the Council's recommendations listed in table 14, which shows the final 2024 and 2025 Pacific halibut PSC limits, allowances, and apportionments.

Section 679.21(d)(4)(iii) and (iv) specify that any unused amounts, or overages, of a seasonal apportionment of a halibut PSC limit will be added to, or deducted from, the next respective seasonal apportionment within the fishing year.

Section 679.21(d)(3)(ii) authorizes further apportionment of the trawl halibut PSC limit to trawl fishery categories listed in § 679.21(d)(3)(iii). The annual apportionments are based on each category's proportional share of the anticipated halibut bycatch mortality during the fishing year and optimization of the total amount of groundfish harvest under the halibut PSC limit. The fishery categories for the trawl halibut PSC limits are: (1) a deep-water species fishery, composed of sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder; and (2) a shallow-water species fishery, composed of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species” (sharks and octopuses) (§ 679.21(d)(3)(iii)). Halibut mortality incurred while directed fishing for skates with trawl gear accrues towards the shallow-water species fishery halibut PSC limit (69 FR 26320, May 12, 2004).

NMFS will combine available trawl halibut PSC limit apportionments during a portion of the second season deep-water and shallow-water species fisheries for use in either fishery from May 15 through June 30 (§ 679.21(d)(4)(iii)(D)). This is intended to maintain groundfish harvest while minimizing halibut bycatch by these sectors to the extent practicable. This provides the deep-water and shallow-water species trawl fisheries additional flexibility and the incentive to participate in fisheries at times of the year that may have lower halibut PSC rates relative to other times of the year.

Table 15 lists the final 2024 and 2025 apportionments of trawl halibut PSC limits between the trawl gear deep-water and shallow-water species fishery categories.

Table 28d to 50 CFR part 679 specifies the amount of the trawl halibut PSC limit that is assigned to the CV and CP sectors that are participating in the Rockfish Program. This includes 117.3 mt of halibut PSC limit to the CV sector and 74.1 mt of halibut PSC limit to the CP sector. These amounts are assigned from the trawl deep-water species fishery's halibut PSC third seasonal apportionment. After the combined CV and CP halibut PSC limit allocation of 191.4 mt to the Rockfish Program, 148.6 mt remains for the trawl deep-water species fishery's halibut PSC third seasonal apportionment.

Section 679.21(d)(4)(iii)(B) limits the amount of the halibut PSC limit assigned to Rockfish Program participants that could be re-apportioned to the last seasonal apportionment for the general GOA trawl fisheries during the current fishing year to no more than 55 percent of the unused annual halibut PSC limit apportioned to Rockfish Program participants. The remainder of the unused Rockfish Program halibut PSC limit is unavailable for use by any person for the remainder of the fishing year (§ 679.21(d)(4)(iii)(C)).

Section 679.21(d)(2)(i)(B) requires that the “other hook-and-line fishery” halibut PSC limit apportionment to vessels using hook-and-line gear must be apportioned between CVs and CPs in accordance with § 679.21(d)(2)(iii) in conjunction with these harvest specifications. The halibut PSC apportionment is based on the Western and Central GOA Pacific cod allocations, which vary annually based on the proportion of the Pacific cod biomass between the Western, Central, and Eastern GOA. Updated information in the final 2023 SAFE report describes this distributional calculation, which apportions ABC among GOA regulatory areas on the basis of the three most recent stock surveys. For 2024 and 2025, the distribution of the total GOA Pacific cod ABC is 27.1 percent to the Western GOA, 63.8 percent to the Central GOA, and 9.1 percent to the Eastern GOA. Therefore, the calculations made in accordance with § 679.21(d)(2)(iii) incorporate the most recent information on GOA Pacific cod distribution and allocations with respect to establishing the annual halibut PSC limits for the CV and CP hook-and-line sectors of the “other hook-and-line fishery.” Additionally, the annual halibut PSC limits for both the CV and CP sectors of the “other hook-and-line fishery” are divided into three seasonal apportionments, using seasonal percentages of 86 percent, 2 percent, and 12 percent.

For 2024 and 2025, NMFS apportions halibut PSC limits of 149 mt and 107 mt to the hook-and-line CV and hook-and-line CP sectors, respectively. Table 16 lists the final 2024 and 2025 apportionments of halibut PSC limits between the hook-and-line CV and the hook-and-line CP sectors of the “other hook-and-line fishery.”

No later than November 1 of each year, NMFS will calculate the projected unused amount of halibut PSC limit by either of the CV or CP hook-and-line sectors that comprise the two sectors of the “other hook-and-line fishery” for the remainder of the year. The projected unused amount of halibut PSC limit is made available to the other sector for the remainder of that fishing year (§ 679.21(d)(2)(iii)(C)), if NMFS determines that an additional amount of halibut PSC is necessary for that sector to continue its directed fishing operations.

The IPHC annually assesses the abundance and potential yield of the Pacific halibut stock using all available data from the commercial and sport fisheries, other removals, and scientific surveys. Additional information on the Pacific halibut stock assessment may be found in the IPHC's 2023 Pacific halibut stock assessment (December 2023), available on the IPHC website at https://www.iphc.int. The IPHC considered the 2023 Pacific halibut stock assessment at its January 2024 annual meeting when it set the 2024 commercial halibut fishery catch limits.

To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut incidental catch rates, halibut discard mortality rates (DMRs), and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. Halibut incidental catch rates are based on observed estimates of halibut incidental catch in the groundfish fishery. DMRs are estimates of the proportion of incidentally caught halibut that do not survive after being returned to the sea. The cumulative halibut mortality that accrues to a particular halibut PSC limit is the product of a DMR multiplied by the estimated halibut PSC. DMRs are estimated using the best scientific information available in conjunction with the annual GOA stock assessment process. The DMR methodology and findings are included as an appendix to the annual GOA groundfish SAFE report.

In 2016, the DMR estimation methodology underwent revisions per the Council's directive. An interagency halibut working group (IPHC, Council, and NMFS staff) developed improved estimation methods that have undergone review by the GOA Plan Team, SSC, and the Council. A summary of the revised methodology is contained in the GOA proposed 2017 and 2018 harvest specifications (81 FR 87881, December 6, 2016), and the comprehensive discussion of the working group's statistical methodology is available from the Council (see ADDRESSES ). The DMR working group's revised methodology is intended to improve estimation accuracy, transparency, and transferability in the methodology used for calculating DMRs. The working group will continue to consider improvements to the methodology used to calculate halibut mortality, including potential changes to the reference period (the period of data used for calculating the DMRs). The new methodology continues to ensure that NMFS is using DMRs that accurately reflect halibut mortality, which will inform the sectors of their estimated halibut mortality and allow sectors to respond with methods that could reduce mortality and, eventually, the DMR for that sector.

At the December 2023 meeting, the SSC, AP, and Council concurred with the revised DMR estimation methodology, and NMFS adopts for 2024 and 2025 the DMRs calculated under the revised methodology, which uses an updated 2-year and 4-year reference period depending on data availability. The final 2024 and 2025 DMRs in this rule are unchanged from the DMRs in the proposed 2024 and 2025 harvest specifications (88 FR 85184, December 7, 2023). Table 17 lists these final 2024 and 2025 DMRs.

There are Chinook salmon PSC limits for the directed pollock trawl fishery in the Western and Central GOA. NMFS is required to close the directed pollock fishery in the Western and Central Regulatory Areas of the GOA if the applicable Chinook salmon PSC limit in that regulatory area will be reached (§ 679.21(h)(8)). The annual Chinook salmon PSC limits in the directed pollock fishery of 6,684 salmon in the Western GOA and 18,316 salmon in the Central GOA are set at § 679.21(h)(2).

There is also an established initial annual PSC limit of 7,500 Chinook salmon for the trawl non-pollock groundfish fisheries in the Western and Central GOA. This limit is apportioned among the 3 sectors that conduct directed fishing for groundfish species other than pollock: 3,600 Chinook salmon to trawl CPs; 1,200 Chinook salmon to trawl CVs participating in the Rockfish Program; and 2,700 Chinook salmon to trawl CVs not participating in the Rockfish Program (§ 679.21(h)(4)). NMFS will monitor the Chinook salmon PSC in the trawl non-pollock groundfish fisheries and close an applicable sector if it will reach its Chinook salmon PSC limit.

The Chinook salmon PSC limit for two sectors, trawl CPs and trawl CVs not participating in the Rockfish Program, may be increased in subsequent years based on the performance of these two sectors and their ability to minimize their use of their respective Chinook salmon PSC limits during a calendar year. If either or both of these 2 sectors limited its use of Chinook salmon PSC to the specified threshold amount (3,120 for trawl CPs and 2,340 for Non-Rockfish Program trawl CVs), that sector will receive an incremental increase to its Chinook salmon PSC limit (§ 679.21(h)(4)). In 2023, the trawl CP sector did not exceed 3,120 Chinook salmon PSC; therefore, the 2024 trawl CP sector Chinook salmon PSC limit will be 4,080 Chinook salmon. In 2023, the Non-Rockfish Program trawl CV sector did not exceed 2,340 Chinook salmon PSC; therefore, the 2024 Non-Rockfish Program trawl CV sector Chinook salmon PSC limit will be 3,060 Chinook salmon.

Section 679.64 establishes groundfish harvesting and processing sideboard limitations on AFA CPs and CVs in the GOA. These sideboard limits are necessary to protect the interests of fishermen and processors who do not directly benefit from the AFA as compared to those fishermen and processors who receive exclusive harvesting and processing privileges under the AFA. Section 679.7(k)(1)(ii) prohibits listed AFA CPs and CPs designated on a listed AFA CP permit from harvesting any species of groundfish in the GOA. Additionally, § 679.7(k)(1)(iv) prohibits listed AFA CPs and CPs designated on a listed AFA CP permit from processing any pollock harvested in a directed pollock fishery in the GOA and any groundfish harvested in Statistical Area 630 of the GOA.

AFA CVs that are less than 125 feet (38.1 meters) length overall, have annual landings of pollock in the Bering Sea and Aleutian Islands of less than 5,100 mt, and have made at least 40 landings of GOA groundfish from 1995 through 1997 are exempt from GOA CV groundfish sideboard limits (§ 679.64(b)(2)(ii)). Sideboard limits for non-exempt AFA CVs in the GOA are based on their traditional harvest levels of TAC in groundfish fisheries covered by the FMP. Section 679.64(b)(3)(iv) establishes the CV groundfish sideboard limits in the GOA based on the aggregate retained catch by non-exempt AFA CVs of each sideboard species from 2009 through 2019 divided by the TAC for that species available to catcher vessels from 2009 through 2019. Under the PCTC Program, NMFS modified the calculation of the sideboard ratios for non-exempt AFA CVs, using the qualifying years of 2009 through 2019 (88 FR 53704, August 8, 2023). Previously, sideboard limits were based on the ratio of catch to the TAC during the years 1995 through 1997.

Non-exempt AFA CVs are prohibited in regulation from directed fishing for specific groundfish species or species groups subject to sideboard limits (§ 679.20(d)(1)(iv)(D) and Table 56 to 50 CFR part 679) (84 FR 2723, February 8, 2019). Under the PCTC Program, NMFS also promulgated regulations to prohibit non-exempt AFA CVs from directed fishing for additional groundfish species or species groups subject to sideboard limits (88 FR 53704, August 8, 2023). All of these prohibitions are found in the revised Table 56 to 50 CFR part 679. Sideboard limits for species or species groups not listed in Table 56 continue to be calculated and included in the GOA annual harvest specifications.

Tables 18 and 19 list the final 2024 and 2025 groundfish sideboard limits for non-exempt AFA CVs. NMFS will deduct all targeted or incidental catch of sideboard species made by non-exempt AFA CVs from the sideboard limits listed in tables 18 and 19.

The non-exempt AFA catcher vessels and the associated LLP licenses PSC limit for halibut in the GOA will be an annual amount based on a static ratio of 0.072, which was derived from the aggregate retained groundfish catch by non-exempt AFA CVs in each PSC target category from 2009 through 2019 (§ 679.64(b)(4)(ii)). This change was implemented with the PCTC Program (88 FR 53704, August 8, 2023). Prior to the PCTC Program, the halibut PSC sideboard limits for non-exempt AFA CVs in the GOA were based on the aggregate retained groundfish catch by non-exempt AFA CVs in each PSC target category from 1995 through 1997 divided by the retained catch of all vessels in that fishery from 1995 through 1997. Table 20 lists the final 2024 and 2025 non-exempt AFA CV halibut PSC sideboard limits for vessels using trawl gear in the GOA.