Implementation of HAVANA Act of 2021, 28633-28638 [2024-08336]

Agencies

• Department of Justice

[Federal Register Volume 89, Number 77 (Friday, April 19, 2024)]
[Rules and Regulations]
[Pages 28633-28638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08336]


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DEPARTMENT OF JUSTICE

28 CFR Part 106

[JMD Docket No. 157; A.G. Order No. 5922-2024]
RIN 1105-AB71


Implementation of HAVANA Act of 2021

AGENCY: Department of Justice.

ACTION: Interim final rule; request for comments.

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SUMMARY: This rule provides implementation by the Department of Justice 
of the HAVANA Act of 2021. The HAVANA Act authorizes agency heads to 
provide payments to certain individuals who have incurred qualifying 
injuries to the brain. This rule covers current and former Department 
of Justice employees and their dependents.

DATES: This interim final rule is effective on May 20, 2024.
    Comments: Electronic comments must be submitted, and written 
comments must be postmarked, on or before June 18, 2024. Commenters 
should be aware that the electronic Federal Docket Management System 
will not accept comments after 11:59 p.m. Eastern Time on the last day 
of the comment period.

ADDRESSES: If you wish to provide comments regarding this interim final 
rule, you must submit comments, referencing RIN 1105-AB71 or JMD Docket 
No. 157, by one of the two methods below:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments.
     Mail: Paper comments that duplicate an electronic 
submission are unnecessary. If you wish to submit a paper comment in 
lieu of an electronic submission, please direct the mail/shipment to: 
General Counsel, Justice Management Division, U.S. Department of 
Justice, Two Constitution Square (2CON), 145 N St. NE, Suite 8E.500, 
Washington, DC 20530. To ensure proper handling, please reference the 
agency name and RIN 1105-AB71 or JMD Docket No. 157 on your 
correspondence. Mailed items must be postmarked or otherwise indicate a 
shipping date on or before the submission deadline.

FOR FURTHER INFORMATION CONTACT: Morton J. Posner, General Counsel, 
Justice Management Division, (202) 514-3452.

SUPPLEMENTARY INFORMATION:  This rule implements the HAVANA Act of 
2021, Public Law 117-46, 135 Stat. 391 (2021) (codified at 22 U.S.C. 
2680b(i)).

Background and Authority--Sec.  106.1

    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. On December 20, 2019, Congress 
authorized the Department of State to pay benefits to employees and 
their dependents for injuries suffered after January 1, 2016, in the 
Republic of Cuba, the People's Republic of China, or other foreign 
countries designated by the Secretary of State, in connection with war, 
insurgency, hostile acts, or terrorist activity, or in connection with 
other incidents designated by the Secretary of State. See Further 
Consolidated Appropriations Act, 2020, Public Law 116-94, div. J, title 
IX, section 901, 133

[[Page 28634]]

Stat. 2534, 3079-81 (2019) (codified as amended at 22 U.S.C. 2680b). 
These benefits were limited to State Department employees only (i.e., 
not other employees under Chief of Mission (``COM'') authority).
    On January 1, 2021, Congress amended this law to authorize other 
Federal Government agencies to provide benefits to their own employees 
under COM authority if they suffered similar injuries. National Defense 
Authorization Act for Fiscal Year 2021, Public Law 116-283, section 
1110, 134 Stat. 3388, 3892-93 (2021).
    On October 8, 2021, Congress passed the Helping American Victims 
Affected by Neurological Attacks or the HAVANA Act of 2021, Public Law 
117-46, 135 Stat. 391 (2021) (``HAVANA Act''). In the HAVANA Act, 
Congress authorized Federal Government agencies to compensate affected 
current employees, former employees, and their dependents for 
qualifying injuries to the brain. The HAVANA Act also omitted the 
previous law's requirement that the qualifying injury must occur in the 
Republic of Cuba, the People's Republic of China, or another foreign 
country designated by the Secretary of State. The scope of coverage now 
includes a qualifying injury that occurs in any foreign or domestic 
location. The HAVANA Act requires Federal agencies who make payments 
under the HAVANA Act to prescribe implementing regulations not later 
than 180 days after the effective date of the Act. Section 9216 of the 
National Defense Authorization Act for Fiscal Year 2023, Public Law 
117-263, 136 Stat. 2395, 3877 (2022) (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.
    This rule implements section 3 of the HAVANA Act as it applies to 
the Department of Justice (the ``Department''). This rule only applies 
to current and former employees of the Department and their dependents, 
as defined in Sec.  106.2 of this rule.
    On June 30, 2022, the Department of State published an interim 
final rule to implement its requirements under the HAVANA Act, 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 
Justice 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. Accordingly, the Department of 
Justice plans to adopt that approach as appropriate in its regulations 
to ensure consistency of benefits among Federal employees and their 
dependents. In particular, the Department has based its interim final 
rule on the Department of State's definitions and process for the 
payment of benefits.

Definitions--Sec.  106.2

    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 all Department employees, 
including employees on Limited Non-Career Appointments, employees on 
Temporary Appointments, personnel hired on Personal Services Contracts, 
and students providing volunteer services under 5 U.S.C. 3111.
    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, or 
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 Sec.  106.2(d)(2)(i) 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 (paragraphs (d)(2)(ii) 
and (iii)) 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/chronicdisease/about/index.htm (last reviewed July 21, 2022). 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.
    Under the HAVANA Act, 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 DS-4316, ``Eligibility Questionnaire for

[[Page 28635]]

HAVANA Act Payments,'' to determine whether their alleged 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 Department will determine whether to designate 
such incidents.

Eligibility for Payments--Sec.  106.3

    The Department will make available to its workforce information on 
the regulations and the process to apply for 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 DS-4316, ``Eligibility 
Questionnaire for HAVANA Act Payments,'' is the form associated with 
developing 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.
    The Department 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 interim 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. The payment is non-taxable pursuant to 22 U.S.C. 2680b(g). 
Payment eligibility and the amount of the payment will be at the 
Department's discretion. 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; and (2) whether the 
Department of Labor (Office of Workers' Compensation Programs) has 
determined that the applicant has no reemployment potential, the Social 
Security Administration (``SSA'') has approved the applicant for Social 
Security Disability Insurance or Supplemental Security Income benefits, 
or 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.
    The award thresholds are based on Level III of the Executive 
Schedule. 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. 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 additional 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 option, 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. 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 payments under the HAVANA Act 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 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, unless Congress specifies otherwise. Therefore, payments 
are contingent on appropriated funds, and all payments will be paid out 
on a first-come, first-served basis.

Consultations With the Department of State--Sec.  106.4

    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--Sec.  106.5

    Each Federal agency is responsible for (1) processing applications 
for the HAVANA Act payments; (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

[[Page 28636]]

receipt of their applications and when a decision has been made whether 
to authorize payment.
    The Executive Assistant Director, Human Resources Branch, Federal 
Bureau of Investigation (``FBI''), is authorized to approve HAVANA Act 
payments to FBI employees or their dependents. The Deputy Assistant 
Attorney General, Human Resources and Administration, Justice 
Management Division (``JMD''), is authorized to approve HAVANA Act 
payments for all other Department employees or their dependents. If 
payment is denied by the designated FBI or JMD official, the applicant 
may direct an appeal to the Assistant Attorney General for 
Administration within 60 days of the notification of denial, but 
decisions on the amount of payment are not appealable.

Regulatory Analysis

Administrative Procedure Act

    This rule is being published as an interim final rule. Because this 
rule is a matter relating to public benefits, it is exempt from 
requirements for notice-and-comment rulemaking. See 5 U.S.C. 553(a)(2). 
Because the rule is exempt from section 553 of title 5 of the United 
States code, the provisions of section 553(d) do not apply. 
Nevertheless, the rule will go into effect 30 days after publication. 
However, the Department is seeking 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.

Congressional Review Act

    This rule is not a major rule as defined by 5 U.S.C. 804 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, 2 U.S.C. 
1501 et seq.

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 preempt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Regulatory Flexibility Act: Small Business

    A regulatory flexibility analysis is not required under the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because the 
Department was not required to issue a notice of proposed rulemaking.

Executive Order 12866 and Executive Order 13563

    The Department provided this interim final rule to the Office of 
Management and Budget for its review. The Office of Information and 
Regulatory Affairs has designated this rule as ``significant'' under 
Executive Order 12866. The Department has also 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, which are 
limited, given the anticipated small number of individuals with 
qualifying injuries. The Department has also considered this rulemaking 
in light of Executive Order 13563 and affirms that this proposed 
regulation is consistent with the guidance therein.

Executive Order 12988

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

Executive Order 13132

    This rule will not have substantial direct effects 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.

Paperwork Reduction Act

    This rulemaking is related to an information collection for the DS-
4316, ``Eligibility Questionnaire for HAVANA Act Payments,'' OMB 
Control Number 1405-0250.

List of Subjects in 28 CFR Part 106

    Government employees, Federal retirees, Health care.

0
Accordingly, for the reasons stated in the preamble, the Department 
adds part 106, title 28, Code of Federal Regulations, to read as 
follows:

PART 106--IMPLEMENTATION OF THE HAVANA ACT OF 2021

Sec.
106.1 Authority.
106.2 Definitions.
106.3 Eligibility for payments by the Department of Justice.
106.4 Consultation.
106.5 Procedures.

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


Sec.  106.1  Authority.

    (1) Under section 3 of the HAVANA Act of 2021, Public Law 117-46, 
135 Stat. 391 (2021) (codified at 22 U.S.C. 2680b(i)), the Attorney 
General or other agency heads may provide a payment to a covered 
employee or covered dependent who experiences a qualifying injury to 
the brain on or after January 1, 2016. The authority to provide such 
payments is at the discretion of the Attorney General or the Attorney 
General's designees.
    (2) These regulations are issued in accordance with 22 U.S.C. 
2680b(i)(4) and apply to covered employees (current and former 
employees) and covered dependents.


Sec.  106.2  Definitions.

    For purposes of this part, the following definitions apply:
    (a) Covered employee. (1) A current or former employee of the 
Department who, on or after January 1, 2016, became injured by reason 
of a qualifying injury while they were employed by the Department.
    (2) The following are considered covered employees for the purposes 
of this rule: Department of Justice employees as defined in 5 U.S.C. 
2105, including employees on Limited Non-Career Appointments, employees 
on Temporary Appointments, personnel hired on Personal Services 
Contracts, and students providing volunteer services under 5 U.S.C. 
3111.
    (3) The following are not considered employees of the Department 
for purposes of this rule: employees or retired employees who were 
employed by other agencies at the time of the injury.
    (b) Covered dependent. A family member, as defined in paragraph (c) 
of this section, of a current or former employee of the Department who, 
on or after January 1, 2016, became injured by

[[Page 28637]]

reason of a qualifying injury while their relative was an employee of 
the Department in a position listed in paragraph (a)(2) of this 
section.
    (c) Family member. For purposes of determining who is a ``covered 
dependent,'' a family member is defined as follows:
    (1) Children who at the time of the injury are unmarried and under 
21 years of age or, regardless of age, are unmarried and due to mental 
or physical limitations are incapable of self-support. The term 
``children'' includes natural offspring; stepchildren; adopted 
children; those under permanent legal guardianship, or comparable 
permanent custody arrangement, of the employee, spouse, or domestic 
partner as defined in 5 CFR 875.101 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 as defined in 
5 CFR 875.101, when normally residing with the employee at the time of 
the injury;
    (3) Sisters and brothers (including stepsisters or stepbrothers, or 
adoptive sisters or brothers) of the employee or the spouse when at the 
time of the injury such sisters and brothers are at least 51 percent 
dependent on the employee or spouse for support, unmarried and under 21 
years of age, or, regardless of age, are physically or mentally 
incapable of self-support; and
    (4) Spouse or domestic partner at the time of the injury.
    (d) Qualifying injury to the brain. (1) An injury to the brain that 
occurred in connection with war, insurgency, hostile act, terrorist 
activity, or other incidents designated under 22 U.S.C. 2680b, and that 
was not the result of the willful misconduct of the covered employee or 
covered dependent.
    (2) The individual must have:
    (i) 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 where such alterations 
are demonstrated by confirming correlative findings on imaging studies 
(including computed tomography scan (CT) or magnetic resonance imaging 
scan (MRI)), or electroencephalogram (EEG);
    (ii) A medical diagnosis of a traumatic brain injury 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 (including CT or MRI), EEG, physical exam, or other appropriate 
testing, that required active medical treatment for 12 months or more.
    (e) Other incident. A new onset of physical manifestations that 
cannot otherwise be readily explained and that is designated under 22 
U.S.C. 2680b.


Sec.  106.3  Eligibility for payments by the Department of Justice.

    (a) The Department may, in its discretion, provide a payment to an 
employee, covered dependent, or former employee if that person suffered 
a qualifying injury to the brain that was assessed and diagnosed in 
person by a physician who is currently a neurologist certified by the 
American Board of Psychology and Neurology (ABPN) or a physician 
certified by the American Osteopathic Board of Neurology and Psychiatry 
(AOBNP), the American Board of Physical Medicine and Rehabilitation 
(ABPMR), or the American Osteopathic Board of Physical Medicine and 
Rehabilitation (AOBPMR); occurred on or after January 1, 2016; and, for 
an employee or former employee, occurred while the employee or former 
employee was a covered employee of the Department or, for a covered 
dependent, occurred while the covered dependent's relative was an 
employee of the Department in a position listed in Sec.  106.2(a)(2).
    (b) Payment for a qualifying injury to the brain will be a non-
taxable, one-time lump sum payment, unless a second payment is 
authorized under paragraph (d) of this section.
    (c) The amount of the payment is at the Department's discretion. 
The Department will determine the amount paid to each eligible person 
based on the following factors:
    (1) The responses on the ``Eligibility Questionnaire for HAVANA Act 
Payments'' form; and
    (2) Whether the Department of Labor (Office of Workers' 
Compensation Programs) has determined that the applicant has no 
reemployment potential, or the Social Security Administration has 
approved the applicant for Social Security Disability Insurance or 
Supplemental Security Income benefits, or the applicant's ABPN-
certified neurologist or the applicant's AOBNP-, 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 in Activities of Daily Living.
    (d) The award thresholds are based on Level III of the Executive 
Schedule: Base will be 75 percent of Level III pay, and Base+ will be 
100 percent of Level III pay. If the applicant meets any of the 
criteria listed in paragraph (c)(2) of this section, the applicant will 
be eligible to receive a Base+ payment. Applicants whose board-
certified physician (as described in paragraph (a) of this section) 
confirms that the definition of ``qualifying injury to the brain'' has 
been met, but who have not met any of the criteria listed in paragraph 
(c)(2) of this section, will be eligible to receive a Base payment. If 
an applicant who received a Base payment later meets any of the 
criteria listed in paragraph (c)(2) of this section, the applicant may 
apply for an additional payment that will be the difference between the 
Base and Base+ payment.


Sec.  106.4  Consultation.

    When a covered employee or covered dependent seeks payment for an 
incident that occurred overseas under Chief of Mission security 
responsibility, the Department will coordinate with the Department of 
State as appropriate in evaluating whether the incident is an ``other 
incident'' under the HAVANA Act or should be so designated.


Sec.  106.5  Procedures.

    (a) Application. (1) A covered employee or covered dependent may 
apply for a HAVANA Act payment if the covered individual has sustained 
a qualifying injury to the brain on or after January 1, 2016. To apply 
for the benefit, the applicant must submit the ``Eligibility 
Questionnaire for HAVANA Act Payments'' claim form to the appropriate 
email address or fax number set forth in this paragraph (a). The claim 
form must be completed by a person eligible to file a claim under the 
HAVANA Act or by that person's legal guardian and must be signed by a 
currently certified physician as listed in Sec.  106.3(a) of this part. 
The claim form must be emailed or faxed to the following address: 
[email protected] or fax number (202) 323-9420 (covered FBI 
employees and dependents) or [email protected] or fax number 
(202) 616-3200 (covered DOJ employees and dependents).
    (2) The applicant must furnish additional documentation upon 
request.
    (3) Copies of the claim form, as well as the regulations and other 
information, may be obtained by

[[Page 28638]]

requesting the document or publications via an email to 
[email protected] (covered FBI employees and dependents) or 
[email protected] (covered DOJ employees and dependents).
    (b) Review. For FBI covered employees and dependents, the Human 
Resources Division (HRD) of the FBI is responsible for reviewing the 
applications to determine their completeness. For other DOJ covered 
employees and dependents, the Justice Management Division (JMD) is 
responsible for reviewing the applications to determine their 
completeness.
    (c) Other incident. The Department will determine whether a covered 
employee or covered dependent has a qualifying injury to the brain as 
set forth in Sec.  106.2, and whether the incident causing the injury 
was in connection with war, insurgency, hostile act, or terrorist 
activity. The Department will as appropriate or necessary make a 
recommendation to the Secretary of State that the incident should be 
deemed an ``other incident designated by the Secretary of State'' for 
purposes of 22 U.S.C. 2680b(i)(1)(D) (cross-referencing subparagraph 
2680b(e)(4)); or, for incidents affecting employees or dependents who 
are not under the security responsibility of the Secretary of State, 
the Department will as appropriate or necessary designate such 
incidents, under authority set forth in 22 U.S.C. 2680b(j).
    (d) Decisions. For FBI covered employees and covered dependents, 
the Executive Assistant Director, Human Resources Branch, FBI, in their 
discretion may approve payments under the HAVANA Act. For all other 
Departmental covered employees and covered dependents, the Deputy 
Assistant Attorney General, Human Resources and Administration, JMD, in 
their discretion may approve payments under the HAVANA Act.
    (e) Appeals. In the event of a decision to deny an application for 
payment under the HAVANA Act, the Department will notify the applicant 
in writing. Applicants may direct an appeal to the Assistant Attorney 
General for Administration within 60 days of the date of the 
notification of the denial. However, decisions concerning the amount 
paid are not subject to appeal. The Department will notify the 
applicant in writing of the decision on appeal.

    Dated: April 15, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-08336 Filed 4-18-24; 8:45 am]
BILLING CODE 4410-AR-P