Implementation of HAVANA Act of 2021, 24110-24113 [2023-08284]

Agencies

• DEPARTMENT OF COMMERCE
• Office of the Secretary

[Federal Register Volume 88, Number 75 (Wednesday, April 19, 2023)]
[Rules and Regulations]
[Pages 24110-24113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08284]


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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 3

[Docket No. 230412-0101]
RIN 0605-AA64


Implementation of HAVANA Act of 2021

AGENCY: Department of Commerce.

ACTION: Interim final rule; request for comments.

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SUMMARY:  This rule implements the HAVANA Act of 2021 (the Act) for the 
Department of Commerce (Department). The Act provides the authority for 
the Secretary of Commerce and other agency heads to provide payments to 
certain individuals who have incurred qualifying injuries to the brain. 
The rule covers current and former Department employees, and dependents 
of current or former employees.

DATES: 
    Effective date: This interim final rule is effective on April 19, 
2023.
    Comments due date: To be assured of consideration, written comments 
on the interim final rule must be received no later than May 19, 2023.

ADDRESSES: Submit comments on this interim final rule through the 
Federal eRulemaking Portal at https://www.Regulations.gov, Docket No. 
DOC-2023-0001. All comments submitted during the comment period 
permitted by this document will be a matter of public record and will 
generally be available on the Federal eRulemaking Portal at https://www.Regulations.gov.
    Comments may also be submitted by mail to: HAVANA Rule Comments, 
Attention: Anna Kelley, Rooms 1844-1846, 1401 Constitution Avenue NW, 
Washington, DC 20230. Any questions concerning the process for 
submitting comments should be submitted to Anna Kelley at 202-482-2200 
or [email protected]. The information collection form associated 
with this rule, Eligibility Questionnaire for HAVANA Act Patients, is 
available at https://www.Regulations.gov under Docket No. DOC-2023-0001 
and at https://www.commerce.gov/havana-act.

FOR FURTHER INFORMATION CONTACT: Charles Cutshall, Chief Privacy 
Officer, at 202-482-5735 or [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On December 20, 2019, Congress gave authority (Pub. L. 116-94, 
division J, title IX, section 901) to the Department of State to pay 
benefits to certain individuals for injuries suffered after January 1, 
2016 in the Republic of Cuba, the People's Republic of China or another 
foreign country designated by the Department of State, in connection 
with certain injuries designated by the Secretary of State. These 
benefits were limited to Department of State employees, their 
dependents and other individuals affiliated with the Department of 
State.
    On January 1, 2021, Congress amended that law (Pub. L. 116-283, 
div. A, title XI, section 1110), authorizing other Federal Government 
agencies (such as the Department) to provide similar benefits to their 
own employees for those injuries. Those provisions are codified at 22 
U.S.C. 2680b.
    On October 8, 2021, the ``Helping American Victims Afflicted by 
Neurological Attacks'' (HAVANA) Act of 2021 became law (Pub. L. 117-
46). In the latest Act, Congress authorized Federal Government agencies 
to compensate affected current employees, former employees, and their 
dependents for qualifying injuries to the brain. Section 3 of the 
HAVANA Act of 2021 removed the requirement in Public Law 116-94, 
division J, title IX, section 901, that the qualifying injury occur in 
``the Republic of Cuba, People's Republic of China, or other foreign 
country designated by the Secretary of State'' for the purpose of 
making a payment under the HAVANA Act. The Act also requires the 
Department (and other agencies) to ``prescribe regulations'' 
implementing the HAVANA Act not later than 180 days after the effective 
date of the Act. This interim final rule implements the HAVANA Act of 
2021.
    The regulation herein applies only to current and former employees 
of the Department, and dependents of current or former employees, as 
defined in Sec.  3.2 of this rule.

Definitions

    The rule follows the definitional template provided in the HAVANA 
Act and its predecessors. The rule defines certain categories of 
individuals as employees, as well as those who are not considered 
employees.
    The term ``covered employee'' captures Department Foreign Service 
and Civil Service employees (regardless of the nature of their 
appointment), as well as National Oceanic and Atmospheric 
Administration Commissioned Corps Officers and students providing 
voluntary services under 5 U.S.C. 3111 who, on or after January 1, 
2016, became injured by a qualifying injury to the brain while they 
were an employee of the Department.
    The term ``covered individual'' captures any former employee of the 
Department (including retired or separated employees) who, on or after 
January 1, 2016, became injured by a qualifying injury to the brain 
while they were an employee of the Department.
    The term ``covered dependent'' captures a family member of a 
Department current or former employee who, on or after January 1, 2016, 
became injured by reason of a qualifying injury to the brain while the 
dependent's sponsor was an employee of the Department. For purposes of 
determining whether an individual is a covered dependent, the term 
``family members'' includes unmarried children under 21 years of age 
(or certain other children) at the time of injury; parents; sisters and 
brothers; and spouses. Step-parents and step-siblings are included in 
the definition.
    The definition of ``qualifying injury to the brain'' is based on 
current medical practices related to brain injuries. Further, the 
injury must have occurred in connection with certain hostile acts, 
including war, terrorist activity, or other incidents designated by the 
Secretary of State or the Secretary of Commerce, as permitted by law, 
and must not have been the result of the willful misconduct of the 
individual. The individual must have: an acute injury to the brain such 
as, but not limited to, a concussion, penetrating injury, or as the 
consequence of an event that leads to permanent alterations in brain 
function as demonstrated by confirming correlative findings on imaging 
studies (to include computed tomography scan (CT), or magnetic 
resonance imaging scan (MRI)), or electroencephalogram (EEG); or a 
medical diagnosis of a traumatic brain injury (TBI) that required 
active medical treatment for 12 months or more; or acute onset of new 
persistent, disabling neurologic

[[Page 24111]]

symptoms as demonstrated by confirming correlative findings on imaging 
studies (to include CT, MRI), EEG, physical exam, or other appropriate 
testing, and that required active medical treatment for 12 months or 
more.
    In implementing this definition of ``qualifying injury to the 
brain,'' the Department adopts the standard set forth by the Department 
of State in its January 25, 2023, regulations implementing the HAVANA 
Act (see 88 FR 4722). With regard to these standards, this definition 
accounts for a variety of observable impacts to an individual, 
including either a concussion, a penetrating injury, or absent either 
of those, the ability of an appropriately certified physician to review 
one of a variety of forms of medical imaging evidence indicating 
permanent alterations in brain function. This will ensure there is some 
documented evidence of impact to the brain, while minimally 
circumscribing what that impact entails. The definition of ``qualifying 
injury to the brain'' will provide multiple avenues for demonstrating 
sustained, long-term impact to the individual. Establishing a 12-month 
threshold of active medical treatment is indicative of a long-term 
injury which the Department believes must be demonstrated prior to the 
awarding of benefits. 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.''
    The definition of ``other incident'' is a new onset of physical 
manifestations that cannot otherwise be explained.

Eligibility for Payments

    The Department will communicate with its entire workforce to inform 
them of the rule, regulations, and process for requesting payment. The 
Department will work together with potential recipients to provide the 
necessary documentation to qualify for payment. The Department believes 
these efforts will ensure all potential requestors will be able to 
identify themselves to the Department and begin the process of 
requesting a payment. However, Form CD-350, the form associated with 
developing the necessary evidence to submit a claim, will also be 
publicly hosted on the Department's public-facing website with 
instructions on how to contact the Department if a requestor believes 
they are eligible for a HAVANA Act payment.
    Section 3.3 states the conditions required before the Department 
will consider payments to current or former employees and dependents of 
current or former employees: the qualifying injury to the brain for a 
former employee must have occurred on or after January 1, 2016, and 
while the former employee was an employee of the Department; and for a 
dependent, the injury must have occurred on or after January 1, 2016, 
and while the dependent's sponsor was an employee of the Department. 
The Director, Office of Human Resources Management, must approve any 
HAVANA Act payment.
    Payments will be a one-time, non-taxable, lump sum payment, based 
on the annual salary of an Executive Schedule III employee (see 5 
U.S.C. 5311 et seq.). The payment is non-taxable pursuant to 22 U.S.C. 
2680b(g). As indicated in Sec.  3.3, in determining the amount of the 
payment, the Department will consider (1) the responses on Form CD-350 
and (2) whether the Department of Labor, Office of Workers' 
Compensation Programs (DOL) has determined that the requestor has no 
reemployment potential, or the Social Security Administration (SSA) has 
approved the requestor for Social Security Disability Insurance or 
Supplemental Security Insurance, or the requestor'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.
    The award thresholds are based on the annual rate of basic pay for 
Level III of the Executive Schedule (ES). A Base payment will be 75 
percent of Level III pay and a Base Plus payment will be 100 percent of 
Level III pay. If the requestor meets any of the criteria listed in (2) 
in the paragraph immediately above, the requestor will be eligible to 
receive a Base Plus payment. Requestors with a documented ``qualifying 
injury to the brain'' but who do not meet any of the criteria listed in 
(2) in the paragraph immediately above will be eligible to receive a 
Base payment. The criteria established in (2) in the paragraph 
immediately above are reflective of the Department's objective of 
ensuring that the individuals most severely affected by anomalous 
health incidents (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 additional payment. The 
specific use of the DOL or the SSA determinations is to ensure that 
both current and former Federal employees as well as covered dependents 
have access to a mechanism for this determination. The Department 
recognizes that criteria DOL and SSA use in their disability 
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 option, that a board-certified physician 
certifies 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), provides an alternative 
mechanism for all individuals. Finally, the Department notes that if a 
requestor who received a Base payment later meets any of the criteria 
listed in (2) above, the requestor may apply for an additional payment 
that will be the difference between the Base and Base Plus payment. As 
the payments are tied to the Executive Schedule, the amounts may change 
over time based on increases to that Schedule.
    The Department may consult with the appropriate officials in other 
Federal agencies to identify their current and former covered 
employees, and current and former dependents who reported an anomalous 
health incident. The Department will not process payment for employees, 
former employees, or dependents of current or former employees of other 
agencies. While payments under the HAVANA Act may be on top of other 
leave, disability, or workers' compensation payments the requestor is 
receiving or may be entitled to receive that also help augment any loss 
of income, the Department believes this is an appropriate additional 
payment. The Department also believes this amount is the most it can 
reasonably compensate each requestor while ensuring available funds for 
all expected payments. The Department also notes that, because payments 
are contingent on appropriated funds, all payments will be paid out on 
a first come, first served basis. This is also in accordance with 
compensation awarded by the Department of State under the HAVANA Act.

Regulatory Analysis

Administrative Procedure Act

    This rule is being published as an interim final rule and is 
effective immediately upon publication. Because this rule is a matter 
relating to public benefits, it is exempt from the requirements of 5 
U.S.C. 553. See 5 U.S.C. 553(a)(2). In particular, the provisions of 
sections 553(b), 553(c), and 553(d) for advance notice, opportunity for 
comment, and delay in the effective date do not apply. It is in the 
public interest for this rule to become effective as soon as 
practicable in order to ensure expeditious payments

[[Page 24112]]

to injured persons. The Department seeks comment from interested 
persons on the provisions of this rule and will consider all relevant 
comments in determining whether additional rulemaking is warranted 
under the provisions of the HAVANA Act.

Regulatory Flexibility Act

    The Chief Counsel for Regulations for the Department certifies that 
this rulemaking will not have a significant impact on a substantial 
number of small entities. This rule applies only to certain individuals 
who are current and former Department employees and family members who 
are eligible for payments as a result of certain injuries. Therefore, 
the rule will provide for payments to certain individuals, and is 
therefore not expected to impact any small entities. As a result, a 
regulatory flexibility analysis is not required under the Regulatory 
Flexibility Act (5 U.S.C. 601, et seq.), and none has been prepared.

Executive Order 12866 and Executive Order 13563

    This rule has been determined to be significant under Executive 
Order 12866. 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 numbers of individuals 
affected. For fiscal year (FY) 2023, the Department has been authorized 
to spend up to $5 million to pay claims that it finds to be 
substantiated.
    The Department has reviewed the rule to ensure its consistency with 
the regulatory philosophy and principles set forth in Executive Order 
12866 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. The Department has also considered this 
rulemaking in light of Executive Order 13563 and affirms that this 
regulation is consistent with the guidance therein.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501, et seq.) (PRA), the information collection associated with this 
rule, Form CD-350, the Eligibility Questionnaire for HAVANA Act 
Patients, was approved by the Office of Management and Budget (OMB) for 
clearance under a 6-month emergency authorization under OMB Control 
Number 0690-0037. Form CD-350 has been uploaded to this rule's docket 
on regulations.gov (see ADDRESSES section above). The Department of 
Commerce intends to request approval for a full 3-year OMB clearance to 
cover the Eligibility Questionnaire for HAVANA Act Patients information 
collection request. Notwithstanding any other provision of the law, no 
person is required to respond to, nor shall any person be subject to a 
penalty for failure to comply with, a collection of information subject 
to the requirements of the PRA, unless that collection of information 
displays a currently valid OMB Control Number.

List of Subjects in 15 CFR Part 3

    Federal retirees, Government employees, Health care.


0
Accordingly, for the reasons stated in the preamble, the Department 
adds part 3 to subtitle A of title 15, Code of Federal Regulations, to 
read as follows:

PART 3--IMPLEMENTATION OF THE HAVANA ACT OF 2021

Sec.
3.1 Authority.
3.2 Definitions.
3.3 Eligibility for payments by the Department of Commerce.
3.4 Consultation with other agencies.

    Authority:  22 U.S.C. 2680b.


Sec.  3.1   Authority.

    (a) Under section 3 of the HAVANA Act of 2021 (Pub. L. 117-46), 
codified in 22 U.S.C. 2680b, the Secretary of Commerce or other agency 
heads may provide a payment for a qualifying injury to the brain to a 
covered employee or covered dependent, who incurred a qualifying injury 
to the brain on or after January 1, 2016. The authority to provide such 
payments is at the sole discretion of the Secretary or their designee.
    (b) The regulations in this part are issued in accordance with 22 
U.S.C. 2680b(i)(4) and also apply to former covered employees of the 
Department of Commerce and their covered dependents.


Sec.  3.2   Definitions.

    (a) Covered employee. (1) An employee of the Department of Commerce 
who, on or after January 1, 2016, becomes injured by reason of a 
qualifying injury to the brain.
    (2) The following are considered employees of the Department of 
Commerce for the purposes of this part: Department of Commerce 
employees in the Foreign Service, National Oceanic and Atmospheric 
Administration Commissioned Corps Officers, and Department of Commerce 
employees who meet the definition of ``employee'' set forth in 5 U.S.C. 
2105(a), including students providing volunteer service under 5 U.S.C. 
3111.
    (3) The following are not considered employees of the Department of 
Commerce for purposes of this part: employees or retired employees of 
other agencies.
    (b) Covered dependent. A family member of a Department of Commerce 
current or former employee who, on or after January 1, 2016, becomes 
injured by reason of a qualifying injury to the brain while the 
dependent's sponsor was an employee of the Department of Commerce as 
specified in paragraph (a)(2) of this section.
    (c) Covered individual. A former employee of the Department of 
Commerce who, on or after January 1, 2016, becomes injured by reason of 
a qualifying injury to the brain while they were an employee of the 
Department of Commerce as specified in paragraph (a)(2) of this 
section.
    (d) Family member. For purposes of determining ``covered 
dependent,'' a family member is defined as follows:
    (1) Children who are unmarried and under 21 years of age at the 
time of the qualifying injury or, regardless of age, are unmarried and 
due to mental and/or physical limitations are incapable of self-
support. The term ``children'' must include natural offspring, step-
children, adopted children, and those under permanent legal 
guardianship (at least until age 18), or comparable permanent custody 
arrangement, of the employee or spouse or domestic partner when 
dependent upon and normally residing with the guardian or custodial 
party, and U.S. citizen children placed for adoption if a U.S. court 
grants temporary guardianship of the child to the employee and 
specifically authorizes the child to reside with the employee in the 
country of assignment before the adoption is finalized;
    (2) Parents (including stepparents and legally adoptive parents) of 
the employee or of the spouse or of the domestic partner;
    (3) Sisters and brothers (including stepsisters or stepbrothers, or 
adoptive sisters or brothers) of the employee, or of the spouse when 
such sisters and brothers are at least 51 percent dependent on the 
employee for support, unmarried and under 21 years of age, or 
regardless of age, are physically and/or mentally incapable of self-
support; and
    (4) Spouse.
    (e) Qualifying injury to the brain. (1) The injury must have 
occurred in connection with war, insurgency, hostile act, terrorist 
activity, or other incidents designated by the Secretary of State or 
the Secretary of Commerce, as permitted by law, and was not the result 
of the willful misconduct of the individual; and

[[Page 24113]]

    (2) The individual must have:
    (i) An acute injury to the brain such as, but not limited to, a 
concussion, penetrating injury, or as the consequence of an event that 
leads to permanent alterations in brain function as demonstrated by 
confirming correlative findings on imaging studies (to include computed 
tomography scan (CT), or magnetic resonance imaging scan (MRI)), or 
electroencephalogram (EEG); or
    (ii) A medical diagnosis of a traumatic brain injury (TBI) that 
required active medical treatment for 12 months or more; or
    (iii) Acute onset of new persistent, disabling neurologic symptoms 
as demonstrated by confirming correlative findings on imaging studies 
(to include CT or MRI), or EEG, or physical exam, or other appropriate 
testing, and that required active medical treatment for 12 months or 
more.
    (f) Other incident. A new onset of physical manifestations that 
cannot otherwise be readily explained.


Sec.  3.3  Eligibility for payments by the Department of Commerce.

    (a) The Department of Commerce may provide a payment to covered 
individuals, as defined this section, if the qualifying injury to the 
brain was assessed and diagnosed in person by a currently board-
certified physician from the American Board of Psychiatry and Neurology 
(ABPN), the American Osteopathic Board of Neurology and Psychiatry 
(AOBNP), the American Board of Physical Medicine and Rehabilitation 
(ABPMR), or the American Board of Physical Medicine and Rehabilitation 
(AOBPMR); and occurred on or after January 1, 2016, and while the 
individual was a covered employee of the Department of Commerce.
    (b) The Department of Commerce may provide a payment to covered 
employees, as defined in this section, if the qualifying injury to the 
brain was assessed and diagnosed in person by a currently board-
certified physician from ABPN, AOBNP, ABPMR, or AOBPMR; and occurred on 
or after January 1, 2016, and while the employee was a covered employee 
of the Department.
    (c) The Department of Commerce may provide a payment to a covered 
dependent, if the qualifying injury to the brain was assessed and 
diagnosed in person by a currently board-certified physician from the 
ABPN, AOBNP, ABPMR, or AOBMR; and occurred on or after January 1, 2016, 
and while the dependent's sponsor was a covered employee of the 
Department.
    (d) Payment for a qualifying injury to the brain will be a non-
taxable, one-time lump sum payment.
    (e) The Department will determine the amount paid to each eligible 
person based on the following factors:
    (1) The responses on Form CD-350, ``Eligibility Questionnaire for 
HAVANA Act Payments''; and
    (2) Whether the Department of Labor has determined that the 
requestor has no reemployment potential, or the Social Security 
Administration has approved the requestor for Social Security 
Disability Insurance or Supplemental Security Insurance (SSI) benefits; 
or the requestor's ABPN, AOBPN, ABPMR, or AOBPMR-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 of Daily Living.
    (3) The award thresholds are based on the Level III of the 
Executive Schedule: Base payment will be 75 percent of Level III pay, 
and Base Plus payment will be 100 percent of Level III pay. If the 
requestor meets any of the criteria listed in paragraph (e)(2) of this 
section, the requestor will be eligible to receive a Base Plus payment. 
Requestors who are otherwise eligible for payment for a qualifying 
injury to the brain (defined in Sec.  3.2(e)) but do not meet any of 
the criteria listed in paragraph (e)(2) of this section will be 
eligible to receive a Base payment. If a requestor who received a Base 
payment later meets any of the criteria listed in paragraph (e)(2) of 
this section, the requestor may apply for an additional payment that 
will be the difference between the Base and Base Plus payment.
    (f) The Director, Office of Human Resources Management may approve 
payments under this section. The Office of Human Resources Management 
will notify individuals of the decision in writing.
    (g) An appeal of a decision made by the Director, Office of Human 
Resources Management may be directed to the Deputy Assistant Secretary 
for Administration in writing. The Deputy Assistant Secretary for 
Administration is the final appeal authority. The Office of Human 
Resources Management will notify individuals of the decision in 
writing.


Sec.  3.4  Consultation with other agencies.

    The Department may consult with the appropriate officials in other 
Federal agencies to identify their current and former covered 
employees, and current and former dependents who reported an anomalous 
health incident. The Department will not process payment for employees, 
former employees, or dependents of current or former employees of other 
agencies.

    Dated: April 14, 2023.
Jeremy Pelter,
Acting Chief Financial Officer and Assistant Secretary of Commerce for 
Administration, U.S. Department of Commerce.
[FR Doc. 2023-08284 Filed 4-18-23; 8:45 am]
BILLING CODE 3510-17-P