Implementation of HAVANA Act of 2021, 80390-80396 [2024-22795]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 89, Number 192 (Thursday, October 3, 2024)]
[Rules and Regulations]
[Pages 80390-80396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22795]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 49

[Docket ID: DoD-2024-OS-0054]
RIN 0790-AL61


Implementation of HAVANA Act of 2021

AGENCY: Office of the Under Secretary of Defense for Personnel and 
Readiness (OUSD(P&R)), Department of Defense (DoD).

ACTION: Direct final rule with request for comments.

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SUMMARY: This rule implements within DoD (the Department) amendments 
made by the Helping American Victims Afflicted by Neurological Attacks 
(HAVANA) Act of 2021, which provide authority for the Secretary of 
State and other agency heads to provide payments to certain individuals 
who have incurred qualifying injuries to the brain. This rule covers 
current and former DoD employees, and dependents of current or former 
DoD employees and is vitally important to those who have experienced 
such injuries.

DATES: This rule will be effective on November 18, 2024 unless comments 
are received that would result in a contrary determination. If 
significant adverse comments are received, the Department will publish 
a timely withdrawal of the rule in the Federal Register. Comments will 
be accepted on or before November 4, 2024.

ADDRESSES: Interested parties may submit comments, identified by docket 
number and/or regulatory identifier number (RIN) and title, by one of 
the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Assistant to 
the Secretary of Defense for Privacy, Civil Liberties, and 
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn: 
Mailbox 24, Suite 08D09, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal

[[Page 80391]]

Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing at https://www.regulations.gov as they are 
received without change, including any personal identifiers or contact 
information.

FOR FURTHER INFORMATION CONTACT: Taiwanna Smith, Director Benefits Wage 
and NAF Policy Line of Business, Defense Civilian Personnel Advisory 
Services, Office of the Under Secretary of Defense for Personnel and 
Readiness at (571) 372-1642.

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--Sec.  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 Sec.  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--Sec.  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

[[Page 80392]]

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.  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 Sec.  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/ (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--Sec.  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

[[Page 80393]]

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--Sec.  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--Sec.  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

[[Page 80394]]

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.

List of Subjects in 32 CFR Part 49

    Government employees; Federal retirees; Health care.


0
Accordingly, for the reasons stated in the preamble, the Department of 
Defense adds 32 CFR part 49 to read as follows:

PART 49--IMPLEMENTATION OF THE HAVANA ACT OF 2021

Sec.
49.1 Purpose and authority.
49.2 Definitions.
49.3 Eligibility for payments by the Department of Defense.
49.4 Consultation with Department of State.
49.5 Procedures.

    Authority: 5 U.S.C. 301; Pub. L. 117-46, 135 STAT. 391; 22 
U.S.C. 2680b.


Sec.  49.1  Purpose and authority.

    (a) Under 22 U.S.C. 2680b(i), the Secretary of Defense may provide 
a payment for a qualifying injury to the brain to a covered employee or 
covered dependent, as defined in this part, who incurred a qualifying 
injury to the brain on or after January 1, 2016. The authority to 
provide such payments is at the discretion of the Secretary of Defense 
or the Secretary's designees.
    (b) These regulations are issued in accordance with 22 U.S.C. 
2680b(i)(4) and apply to covered employees of the Department of Defense 
(current and former employees) and covered dependents.


Sec.  49.2  Definitions.

    For purposes of this part, the following definitions apply:
    Covered dependent. A family member, as defined in this section, of 
a current or former employee of the Department of Defense who, on or 
after January 1, 2016, accompanies the employee, while an employee of 
the Department, to an assigned duty location and becomes injured by 
reason of a qualifying injury to the brain.
    Covered employee. A current or former employee of the Department of 
Defense who, on or after January 1, 2016, becomes injured by reason of 
a qualifying injury incurred while an employee of the Department of 
Defense.
    Employee. For purposes of this part, ``employee'' means an 
individual who has been appointed to a position in the civil service in 
accordance with 5 U.S.C. 2104(a)(1) or 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 a citizen or national of the United States.
    Family member. for the purposes of determining ``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 
and/or physical limitations are incapable of self-support. The term 
``children'' includes natural offspring, step-children, adopted 
children, and 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) Siblings (including stepsiblings, or adoptive siblings) of the 
employee, or the spouse when at the time of the injury such siblings 
were at least 51 percent dependent on the employee for support, 
unmarried and under 21 years of age, or regardless of age, were 
physically and/or mentally incapable of self-support;
    (3) 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; and
    (4) Spouse or domestic partner (as defined in 5 CFR 875.01) at the 
time of the injury.
    Other incident. A new onset of physical manifestations that cannot 
otherwise be readily explained and that is designated under 22 U.S.C. 
2680b.
    Qualifying injury to the brain. 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.
    (1) The individual must have an acute injury to the brain such as, 
but not limited to, a concussion, penetrating injury, or as a 
consequence of an event that leads to permanent alterations in brain 
function as demonstrated by confirming correlative findings on imaging 
studies (to include computed

[[Page 80395]]

tomography scan (CT) or magnetic resonance imaging scan (MRI)) or 
electroencephalogram (EEG); or
    (2) A medical diagnosis of a traumatic brain injury (TBI) that 
required active medical treatment for 12 months or more; or
    (3) 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.


Sec.  49.3  Eligibility for payments by the Department of Defense.

    (a) The Department may provide a payment to covered employees as 
defined in this part, 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 Osteopathic Board of Physical Medicine and Rehabilitation 
(AOBPMR); occurred on or after January 1, 2016; and occurred while the 
employee or former employee was a covered employee of the Department.
    (b) The Department 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 AOBPMR; occurred on or after January 1, 2016; and occurred while the 
covered dependent accompanied an employee of the Department at an 
assigned duty location.
    (c) 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)(4) of this section.
    (d) The amount of 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; DD Form 3220, ``Eligibility Questionnaire for 
HAVANA Act Payments''; and
    (2) Whether the Department of Labor (Workers' Compensation) has 
determined that the requester has no reemployment potential for an 
indefinite future; or the Social Security Administration has approved 
the requester for Social Security Disability Insurance or Supplemental 
Security Income (SSI) for a disability; or a neurologist or physician 
certified by the ABPN, AOBNP, ABPMR, or AOBPMR 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 Level III of the Senior 
Executive Schedule of the year in which the request for payment is 
approved: Base will be 75 percent of Level III pay, and Base Plus will 
be 100 percent of Level III pay.
    (4) If the requester meets any of the criteria listed in paragraph 
(d)(2) of this section, the requester will be eligible to receive a 
Base Plus payment. Requesters whose board-certified physicians confirm 
that the definition of ``qualifying injury to the brain'' has been met 
but has not met any of the criteria listed in paragraph (d)(2), will be 
eligible to receive a Base payment. If a requester who received a Base 
payment later meets any of the criteria listed in paragraph (d)(2), the 
requester may apply for an additional payment that will be the 
difference between the Base and Base Plus payment.


Sec.  49.4  Consultation with Department of State.

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


Sec.  49.5  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 DD Form 3220, 
``Eligibility Questionnaire for HAVANA Act Payments,'' claim form to 
the appropriate email address set forth in paragraph (a)(2) of this 
section. The claim form must be completed by a person eligible to file 
a claim, or by that person's legal guardian, a family member, or 
another individual authorized to act on behalf of the requestor and 
must be signed by a currently certified physician as listed in Sec.  
49.3(a).
    (2) The claim form and any additional documentation must be emailed 
to the following address: [email protected].
    (3) The applicant must furnish additional documentation upon 
request provided that the applicant has access to such additional 
documentation.
    (4) Copies of the claim form, as well as the regulations and other 
information, may be obtained on the Defense Civilian Personnel Advisory 
Service website, https://www.dcpas.osd.mil/havana-act-benefits-program.
    (b) 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.  49.2(f)(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, 
designate ``other incidents'' under 22 U.S.C. 2680b(j) for employees 
and dependents who were not, at the time of the incident, under the 
security responsibility of the Secretary of State or when operational 
control of overseas security responsibility for such employees or 
dependents was delegated to the Secretary of Defense. 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)) for 
incidents affecting employees or dependents who were, at the time of 
the incident, under the security responsibility of the Secretary of 
State.
    (c) Decisions. For covered employees and covered dependents, the 
Director, Defense Civilian Personnel Advisory Service, in their 
discretion may approve payments pursuant to 22 U.S.C. 2680b(i).
    (d) 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 via the DoD HAVANA Act 
mailbox, [email protected], to the 
Deputy Assistant Secretary of Defense for Civilian Personnel Policy, 
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

[[Page 80396]]

applicant in writing of the decision on appeal.

Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-22795 Filed 10-2-24; 8:45 am]
BILLING CODE 6001-FR-P