Implementation of HAVANA Act of 2021, 91529-91532 [2024-27112]

Agencies

• DEPARTMENT OF AGRICULTURE
• Office of the Secretary

[Federal Register Volume 89, Number 224 (Wednesday, November 20, 2024)]
[Rules and Regulations]
[Pages 91529-91532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27112]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 89, No. 224 / Wednesday, November 20, 2024 / 
Rules and Regulations

[[Page 91529]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 1

[Docket No. USDA-2024-0007]
RIN 0503-AA80


Implementation of HAVANA Act of 2021

AGENCY: Office of the Secretary, USDA.

ACTION: Interim final rule and request for comments.

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

DATES: Effective November 20, 2024. We will consider all comments that 
we receive on or before January 21, 2025.

ADDRESSES: You may submit comments by going to https://www.regulations.gov and searching for Docket ID: USDA-2024-0007. Follow 
the online instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Mr. John Decato, Office of Human 
Resources Management,1400 Independence Avenue SW, Washington, DC 20250; 
email [email protected], phone (202) 720-6706.

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 U.S. Department of Agriculture [USDA]) 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 that 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 for USDA.
    The regulation herein applies only to current and former employees 
of USDA, and dependents of current or former employees, as defined in 
Sec.  1.901 of this rule.

Definitions

    This 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) 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 
current or former Department 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. Stepparents and stepsiblings 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 Agriculture, 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 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

[[Page 91530]]

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 1.902 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.  1.902, 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.

Immediate Action

    Immediate action is necessary in order to ensure expeditious 
payments are made to injured persons. Under these circumstances, prior 
notice and opportunity for public comment are contrary to the public 
interest and there is good cause under 5 U.S.C. 553 for making this 
action effective less than 30 days after publication in the Federal 
Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Orders 12866 and 13563

    The Office of Management and Budget has determined that this 
regulatory action does not meet the criteria for significant regulatory 
action pursuant to Executive Order 12866, Regulatory Planning and 
Review.
    Potential causes of AHI are being investigated but remain unknown. 
Given the nature of the incidents, it is difficult to accurately 
estimate future

[[Page 91531]]

incidents and numbers of individuals affected.
    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.

Regulatory Flexibility Act

    This rule applies only to certain individuals who are current or 
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.).

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 1405-0250.

List of Subjects in 7 CFR Part 1

    Administrative practice and procedure, Antitrust, Claims, 
Cooperatives, Courts, Equal access to justice, Fraud, Freedom of 
information, Government employees, Indemnity payments, Lawyers, Motion 
pictures, Penalties, Privacy.

    Accordingly, we are amending 7 CFR part 1 as follows:

PART 1--ADMINISTRATIVE REGULATIONS

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 5 U.S.C. 301, unless otherwise noted.


0
2. Add subpart Q to read as follows:
Subpart Q--Implementation of the HAVANA Act of 2021
Sec.
1.900 Authority.
1.901 Definitions.
1.902 Eligibility for payments by the Department of Agriculture.
1.903 Consultation with other agencies.

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

Subpart Q--Implementation of the HAVANA Act of 2021


Sec.  1.900  Authority.

    (a) Under section 3 of the HAVANA Act of 2021 (22 U.S.C. 2680b), 
the Secretary of Agriculture 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 the Secretary's 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 Agriculture and their covered dependents.


Sec.  1.901  Definitions.

    (a) Covered employee. (1) An employee of the Department of 
Agriculture 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 
Agriculture for the purposes of this part: Department of Agriculture 
employees in the Foreign Service and Department of Agriculture 
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 
Agriculture for purposes of this part: Employees or retired employees 
of other agencies.
    (b) Covered dependent. A family member of a Department of 
Agriculture 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 
Agriculture as specified in paragraph (a)(2) of this section.
    (c) Covered individual. A former employee of the Department of 
Agriculture 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 Agriculture 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, as these 
terms are defined in 5 CFR 875.101;
    (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 or domestic partner at the time of injury.
    (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 Agriculture, as permitted by law, and was not the 
result of the willful misconduct of the individual; and
    (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.
    (g) Requestor. A requestor is a covered employee, a covered 
individual, or a

[[Page 91532]]

covered dependent who applies for payment under this subpart.


Sec.  1.902  Eligibility for payments by the Department of Agriculture.

    (a) The Department of Agriculture may provide a payment to covered 
individuals, as defined in this Sec.  1.901, 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 Agriculture.
    (b) The Department of Agriculture 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 Agriculture 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 was a family member of the 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.

Xochitl Torres Small,
Deputy Secretary, U.S. Department of Agriculture.
[FR Doc. 2024-27112 Filed 11-19-24; 8:45 am]
BILLING CODE 3410-90-P