Implementation of HAVANA Act of 2021

SUPPLEMENTARY INFORMATION:

This rule is being published as a direct final rule and is effective 15 days after the comment period expires as the Department for good cause finds it is unnecessary to provide for a period of public comment in accordance with 5 U.S.C. 553(b)(B). Alternatively, because this rule relates to the provision of a benefit, it is exempt from the procedural requirements of the Administrative Procedure Act. Id. 553(a)(2). However, the Department is seeking comment from interested persons on the provisions of this rule and will consider all relevant comments in any subsequent rulemaking. If such comments are received, the direct final rule will be withdrawn, and a proposed rule for comments will be published.

This rule implements section 901(i) of title IX of division J of the Further Consolidated Appropriations Act, 2020 (22 U.S.C. 2680b(i)).

Purpose and Authority—§ 49.1

In 2016, Department of State employees stationed in Havana, Cuba, began reporting a sudden onset of symptoms, including headaches, pain, nausea, disequilibrium, and hearing loss, in conjunction with sensory events. Federal agencies have called such incidents Anomalous Health Incidents (“AHIs”). Since 2016, Federal employees in numerous countries reported suspected AHIs.

Beginning on December 20, 2019, the Department of State was authorized by statute to pay benefits to employees and their dependents for injuries suffered in the Republic of Cuba, the People's Republic of China, or other foreign countries designated by the Secretary of State incurred after January 1, 2016, in connection with certain hostile or other incidents designated by the Secretary of State (Pub. L. 116-94, Division J, Title IX, section 901) (codified in 22 U.S.C. 2680b). These benefits were limited to Department of State employees only ( e.g., not including other U.S. Government employees under Chief of Mission (COM) authority).

On January 1, 2021, this law was amended, authorizing other Federal Government agency heads (such as the Secretary of Defense) to provide benefits to their own employees under COM authority who suffered similar injuries. (Pub. L. 116-283, div. A, title XI, section 1110).

On October 8, 2021, the President signed the “Helping American Victims Afflicted by Neurological Attacks” (HAVANA) Act of 2021 (Pub. L. 117-46). The HAVANA Act amended section 901 to authorize the heads of Federal Government agencies to compensate affected employees, former employees, and their dependents for qualifying injuries to the brain. The HAVANA Act amendments did not require that the qualifying injury occur in the Republic of Cuba, the People's Republic of China, or another foreign country designated by the Secretary of State. Section 9216 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, (Pub. L. 117-263) (codified at 22 U.S.C. 2680b(j)), provided agencies with authority to designate incidents affecting employees or dependents who are not under the security responsibility of the Secretary of State. Section 7803 of the National Defense Authorization Act for Fiscal Year 2024 (Pub. L. 118-31) (50 U.S.C. 3519b note) generally requires each head of an element of the intelligence community to issue regulations and procedures, not later than 180 days after the effective date of the National Defense Authorization Act for Fiscal Year 2024, to implement the authorities in section 901(i) of title IX of division J of the Further Consolidated Appropriations Act, 2020 (22 U.S.C. 2680b(i)) to provide payments to the degree that such authorities are applicable to the head of the element.

This rule implements 22 U.S.C. 2680b(i) as it applies to the Department of Defense. The rule only applies to current and former employees of the DoD, and their dependents as defined in § 49.2 of this rule.

On June 30, 2022, the Department of State published an interim final rule implementing 22 U.S.C. 2680b(i), with an effective date of August 15, 2022. 87 FR 38981 (June 30, 2022) (codified at 22 CFR part 135). The Department of State subsequently published a final rule that became effective on January 25, 2023. 88 FR 4722 (Jan. 25, 2023) (codified at 22 CFR part 135). The Department of Defense has independently reviewed the approach implemented by the Department of State in these rules and has determined that its approach is reasonable and well considered.

Therefore, the Department of Defense will not substantially deviate from the definitions and process established by the Department of State.

Definitions—§ 49.2

The rule defines those who are eligible to receive payments: covered employees (including current and former employees) and covered dependents who on or after January 1, 2016, experience a qualifying brain injury. A “covered employee” includes Department employees who have been appointed in the civil service in accordance with 5 U.S.C. 2105(a)(1), with the exception of employees paid from non-appropriated funds of an instrumentality of the United States under the jurisdiction of the armed forces who are not citizens or nationals of the United States.

An employee's family member is a covered dependent if, on or after January 1, 2016, the family member experiences a qualifying injury. The rule defines the family members who are eligible as certain children, parents residing with the employee sponsor, dependent siblings, and spouses. For the purposes of this rule, the Department also adopts the Department of State's definition of “qualifying injury to the brain.” 22 CFR 135.2. The Department has determined that the Department of State definition is reasonable and well considered. The Department of State consulted with the chief medical officers at other Federal agencies and experts at civilian medical centers of excellence. There is no diagnostic code or criteria for AHIs in the International Classification of Diseases, Tenth Revision, Clinical Modification (ICD-10-CM). Because of the varied symptoms and still nascent understanding of how to test or otherwise screen for AHI impacts, the standard adopted is broadly inclusive of the types of injuries that have been reported to date.

The definition of “qualifying injury to the brain” is based on current medical practices related to brain injuries. The individual must have: (1) an acute injury to the brain such as a concussion, a penetrating injury, or an injury as the consequence of an event that leads to permanent alterations in brain function as demonstrated by confirming correlative findings on imaging studies or electroencephalogram (“EEG”); (2) a medical diagnosis of a traumatic brain injury that required active medical treatment for 12 months or more; or (3) the acute onset of new, persistent, disabling neurologic symptoms, as demonstrated by confirming correlative findings on imaging studies, EEG, a physical exam, or other appropriate testing, that required active medical treatment for 12 months or more.

The first component of the definition of “qualifying injury to the brain” set forth in § 49.2 accounts for a variety of observable impacts to an individual, including a concussion or a penetrating injury or, absent either of those, permanent alterations in brain function as confirmed by a board-certified physician's review of a variety of forms of medical imaging evidence. The goal with this standard is to ensure there is some documented evidence of impact to the brain, while minimally circumscribing what that impact entails. The second and third components of the definition in § 49.2 are intended to provide alternative avenues for demonstrating sustained, long-term impact to the individual. This benefit is intended for individuals who experience long-term consequences, potentially including an inability to gainfully work, as a result of a suspected AHI.

The standard is consistent with that employed by other agencies, including the Department of State. A 12-month threshold of active medical treatment is indicative of a long-term injury. For example, the Centers for Disease Control and Prevention (“CDC”) broadly defines chronic diseases “as conditions that last 1 year or more and require ongoing medical attention or limit activities of daily living or both.” CDC, About Chronic Diseases, https://www.cdc.gov/chronic-disease/about/index.html (last reviewed July 11, 2024). The Department notes that applicants who have suffered kinetic or external, physically caused injuries to the brain such as the head striking an object, the brain undergoing an acceleration or deceleration movement, or brain injuries from events such as a blast or explosion, including penetrating injuries, may be eligible if the injuries satisfy the other requirements of this rule.

To be compensable, the injury must have occurred “in connection with war, insurgency, hostile act, terrorist activity, or other incidents designated by the Secretary of State,” and cannot have been “the result of the willful misconduct” of the covered individual. 22 U.S.C. 2680b(e)(4)(A)(ii)-(iii), (e)(4)(B)(ii)-(iii), (i)(1)(D). The Department will work with an applicant upon the applicant's submission of the Department of Defense (DD) Form 3220, “Eligibility Questionnaire for HAVANA Act Payments,” to determine whether the reported incident qualifies.

The definition of “other incident” is a new onset of physical manifestations that cannot otherwise be readily explained and that is designated under 22 U.S.C. 2680b. The Department will review available information on the reported incident. If a physician does not indicate that there is a credible alternative explanation for the individual's symptoms, and if the information the Department has regarding the incident does not provide a credible alternative explanation for the incident, that incident will be recommended for designation. Incidents for which an alternative explanation has been identified will not be recommended for designation. For incidents affecting employees or dependents who are not under the security responsibility of the Secretary of State, the Secretary of Defense will determine whether to designate such incidents.

Eligibility for Payments by the Department of Defense—§ 49.3

The Department will make available to its workforce information concerning the regulations, and the process to apply for compensation pursuant to 22 U.S.C. 2680b, or “HAVANA Act payments.” Current employees, former employees, and dependents (as defined in this rule) can apply for consideration. Applicants will be required to provide the necessary documentation so the Department may determine whether they qualify for payment. The DD Form 3220, “Eligibility Questionnaire for HAVANA Act Payments,” is the form associated with collecting the necessary evidence to submit a claim, and it will be available upon request with instructions on how to apply for a HAVANA Act payment. A portion of the form must be filled out by a qualified physician; the rule specifies certain board certification requirements for physicians who can evaluate a qualifying injury to the brain. This information will also be publicly available on the Defense Civilian Personnel Advisory Service website, https://www.dcpas.osd.mil/havana-act-benefits-program, which includes methods of contacting the Department for additional information.

The Department of Defense has determined that the payment scheme set forth in the Department of State's HAVANA Act regulations, 22 CFR 135.3, is well reasoned and provides an effective means of compensating covered employees. Accordingly, the Department has adopted it for purposes of this rulemaking. Pursuant to this direct final rule, the Department, in its discretion, may authorize a one-time, non-taxable, lump sum payment based on Level III of the Executive Schedule. See 5 U.S.C. 5311 et seq. Payment eligibility and the amount of the payment will be at the Department's discretion. A Base payment will be 75 percent of Level III pay, and a Base+ payment will be 100 percent of Level III pay. The specific use of Level III of the Executive Schedule sets the compensation at the maximum annual salary potentially available to most of the Federal workforce. The Department believes this amount is the most it can reasonably compensate each applicant while ensuring funds for the total number of applicants it believes will likely receive payments. The payment is non-taxable pursuant to 22 U.S.C. 2680b(g) and will not count as Supplemental Security Income (SSI) income in the month of receipt and from resources the month after receipt, if retained. The maximum should only be awarded where a condition has a consistent, sustained, and exceptionally severe impact on a victim's quality of life or prevents a victim from successfully performing their work-related duties. The purpose is to compensate individuals only for qualifying brain injuries that meet the criteria set forth in this rule. The following factors will be taken into account to determine the amount of the payment to be authorized: (1) the applicant's responses on the eligibility form; (2) whether the Department of Labor (Office of Workers' Compensation Programs) has determined that the applicant has no reemployment potential for an indefinite future, the Social Security Administration (“SSA”) has approved the applicant for Social Security Disability Insurance or SSI benefits based on disability, or (3) the applicant's board-certified physician has certified that the individual requires a full-time caregiver for activities of daily living, as defined by the Katz Index of Independence in Activities of Daily Living.

If the applicant meets any of the criteria for severe impacts, the applicant will be eligible to receive a Base+ payment. Applicants whose board-certified physician confirms that the definition of qualifying injury to the brain has been met, but who have not met any of the criteria for severe impacts, will be eligible to receive a Base payment. The criteria established for severe impacts are reflective of the Department's objective of ensuring that the individuals most severely affected by AHIs (as indicated by a lack of reemployment potential, an inability to engage in substantial gainful activity, or the need for a full-time caregiver) receive a larger payment. The use of the Department of Labor's or the SSA's determination is to ensure that both Federal employees as well as their dependents have access to a mechanism for this determination.

The Department recognizes that the criteria the Department of Labor and SSA use in their determinations are distinct, as well as the fact that the procedural timelines for seeking and receiving approval may be different between these agencies. The third factor, that a board-certified physician certify that the individual requires a full-time caregiver for activities of daily living, provides an alternative mechanism for all individuals to meet the criteria. Finally, the Department notes that if an applicant who received a Base payment later meets any of the criteria listed for severe impacts, the applicant may apply for an additional payment that will be the difference between the Base and Base+ payment. As the payments are tied to the Executive Schedule payment levels, the amounts will change over time based on changes to the Federal salary schedule. Payments will be based on the Executive Schedule in effect at the time the payment was approved.

While HAVANA Act payments may be in addition to other leave benefits, disability benefits, or workers' compensation payments that the applicant may be receiving or may be entitled to receive that also help augment any loss of income, the Department believes this is an appropriate additional payment. This payment scheme is also consistent with what is being offered by other Federal agencies and will ensure consistency of HAVANA Act benefits among affected individuals.

The Department notes that payments may only be made using amounts appropriated in advance specifically for this purpose in the relevant fiscal year. Therefore, payments are contingent on appropriated funds, and all payments will be paid out on a first-come, first-serve basis.

Consultations With Department of State—§ 49.4

Under the rule, the Department's procedures for determining whether an incident has been designated under 22 U.S.C. 2680b include, where appropriate, consultation with the Secretary of State. See 22 U.S.C. 2680b(i)(1)(D) (cross-referencing subparagraph 2680b(e)(4)).

Procedures—§ 49.5

DoD is responsible for (1) processing applications by DoD employees and their dependents for payments pursuant to 22 U.S.C. 2680b(i); (2) determining or, as necessary, consulting with the Secretary of State to determine, whether the incident causing the injury may be deemed a designated incident under the statute, see 22 U.S.C. 2680b(j); id. 2680b(i)(1)(D) (cross-referencing subparagraph 2680b(e)(4)); (3) determining eligibility for the benefit, determining the amount of the benefit, and processing payment of the benefit; and (4) notifying applicants upon receipt of their applications and when a decision has been made whether to authorize payment.

The Director, Defense Civilian Personnel Advisory Service, is authorized to approve HAVANA Act payments to DoD employees or their dependents. If payment is denied, the applicant may direct an appeal to the Deputy Assistant Secretary of Defense for Civilian Personnel Policy within 60 days of the notification of denial, but decisions on the amount of payment are not appealable.

Direct Final Rule

This rule is being published as a direct final rule as the Department does not expect to receive any significant adverse comments. If such comments are received, this direct final rule will be withdrawn and a proposed rule for comments will be published. If no such comments are received, this direct final rule will become effective 15 days after the comment period expires.

For purposes of this rulemaking, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, the Department will consider whether the comment raises an issue serious enough to warrant a substantive response had it been submitted in a standard notice-and-comment process. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how this direct final rule would be ineffective without the addition.

Regulatory Analysis

Administrative Procedure Act

Pursuant to section 2680b of title 22, United States Code, the DoD may provide a monetary benefit to current and former DoD employees and their dependents who have suffered a qualifying injury to the brain as a result war, insurgency, hostile act, terrorist activity, or other incidents designated by the Secretary of State or Secretary of Defense (for designations related to employees or dependents who, at the time of the incident, were not under the security responsibility of the Secretary of State or when operational control of overseas security responsibility for such employees or dependents had been delegated to the Secretary of Defense). The policy promulgated by this rule is vitally important to those who have experienced such injuries. This rule is being published as a direct final rule and is effective 15 days after the comment period expires as the Department for good cause finds it is unnecessary to provide for a period of public comment. 5 U.S.C. 553(b)(B). Alternatively, because this rule relates to the provision of a benefit, it is exempt from the procedural requirements of the Administrative Procedure Act. Id. 553(a)(2). However, the Department is seeking comment from interested persons on the provisions of this rule and will consider all relevant comments in any subsequent rulemaking.

Congressional Review Act

The Office of Information and Regulatory Affairs has determined that this rule does not meet the criteria set forth 5 U.S.C. 804(2) for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808).

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million in any year; and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

Regulatory Flexibility Act: Small Business

The Under Secretary of Defense for Personnel and Readiness (USD(P&R)) certifies that this rulemaking will not have an impact on a substantial number of small entities. A regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).

Executive Order 12866 (as Amended by Executive Order 14094) and Executive Order 13563

The Department of Defense has provided this direct final rule to the Office of Management and Budget (OMB) for its review. OMB has designated this rule as a “significant” regulatory action under Executive Order 12866, as amended. Potential causes of AHI are being investigated but remain unknown. Given the nature of the incidents, it is difficult to accurately estimate future incidents and number of individuals affected. For fiscal year (FY) 2025, the Department estimates it will pay up to $4 million in total. After FY 2025, the Department estimates it will pay up to $3 million each fiscal year.

The Department has also reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866, Executive Order 13563, and Executive Order 14094, and finds that the benefits of the rule (in providing mechanisms for individuals to obtain compensation for certain injuries) outweigh any costs to the public, which are minimal.

Executive Order 12988

The Department of Defense has reviewed this rule in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Executive Orders 12372 and 13132

This rule will not have substantial direct effect on the states, on the relationships between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Executive Order 12372, regarding intergovernmental consultation on federal programs and activities does not apply to this regulation.

Paperwork Reduction Act

This rule imposes reporting and/or recordkeeping requirements under the Paperwork Reduction Act of 1995. DoD has submitted for OMB review and approval the following information collection— Eligibility Questionnaire for HAVANA Act Payments. To review this collection, including all background materials, please visit https://www.reginfo.gov/public/do/PRAMain and use the search function to enter the title of the collection.

Accordingly, for the reasons stated in the preamble, the Department of Defense adds 32 CFR part 49 to read as follows:

[FR Doc. 2024-22795 Filed 10-2-24; 8:45 am]

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