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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 102701-102703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29993]

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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 3

[Docket No. 241210-0320]
RIN 0605-AA64

Implementation of HAVANA Act of 2021

AGENCY: Department of Commerce.

[[Page 102702]]

ACTION: Final rule.

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

DATES: This final rule is effective December 18, 2024.

ADDRESSES: Public comments and materials associated with this final 
rule are available through the Federal eRulemaking Portal at http://www.Regulations.gov, Docket No. DOC-2023-0001.

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

SUPPLEMENTARY INFORMATION:

Background

    This rule implements the Helping American Victims Affected by 
Neurological Attacks (HAVANA) Act of 2021, Public Law 117-46, codified 
in 22 U.S.C. 2680b(i), which (among other things) required Department 
heads to prescribe regulations implementing the HAVANA Act for covered 
individuals. The Department published an interim final rule (IFR) on 
April 19, 2023 (88 FR 24110), which laid out the process for HAVANA Act 
claimants to submit claims for payment for a qualifying injury to the 
brain suffered by current and former employees of the Department, and 
dependents of current or former employees. Under the IFR, the criteria 
for a qualifying injury to the brain are based on current medical 
practices related to brain injuries. Further, the injury must have 
occurred in connection with certain hostile acts or other incidents 
designated by the Secretary of State or the Secretary of Commerce. 
Further background is contained in the preamble to the IFR. The IFR 
provided for 30 days of public comment, and the Department provides 
responses to those comments below.

Responses to Comments

    The Department received a total of eight public comment submissions 
in response to the IFR. Many comments provided input on multiple 
subjects. The Department received identical comment submissions from 
four commentors. All comments are addressed below.
    Several commentors focused on the Department's definition of 
``qualifying injury to the brain.'' First, numerous commentors urged 
the Department to adopt a broad definition of a ``qualifying injury to 
the brain.'' Under the IFR, individuals may be eligible for a HAVANA 
Act payment if they meet one of three criteria under the definition of 
``qualifying injury to the brain'': (1) 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 (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.
    The Department believes that this definition is broad and flexible 
enough to cover a wide range of brain injuries. The Department also 
notes that this definition is consistent with regulations issued by the 
State Department (Jan. 25, 2023, at 88 FR 4722). Therefore, this final 
rule does not change the IFR definition of ``qualifying injury to the 
brain.''
    Multiple comments requested that the Department remove the 
requirement that an individual receive 12 months of active medical 
treatment before they are eligible for a HAVANA Act payment. Of the 
three criteria for a qualifying brain injury, as set forth above, only 
(2) and (3) require 12 months of treatment. Under (1), 12 months of 
treatment is not required if an individual demonstrates permanent 
alterations in brain function with confirming correlative findings on 
imaging studies. The Department believes that the requirement for 12 
months of treatment, which is consistent with State Department 
regulations (Jan. 25, 2023, at 88 FR 4722), demonstrates that an 
individual suffers from a chronic condition even if that individual 
does not demonstrate a permanent condition. Further, even if a covered 
individual has not yet received 12-months or more of treatment as 
outlined in (2) or (3), the covered individual may nevertheless qualify 
at a later time if treatment lasts for twelve months or more.
    A number of comments asked that the Department establish an 
eligibility threshold for benefits that does not rest in whole or in 
part on the contemporaneous diagnosis of a brain injury. Instead, the 
commentors urged the Department to allow claimants to establish 
eligibility based on the presence of one or more of the symptoms that 
have come to be associated with Anomalous Head Injuries. The Department 
does not believe that it is appropriate to grant claims without 
appropriate medical documentation of a qualifying injury to the brain. 
The Department also notes that the standard that it uses to determine 
payment eligibility is consistent with the standard used by the 
Department of State.
    One comment asked that the Department recognize a ``qualifying 
brain injury'' even when an individual is receiving ongoing treatment; 
or the treatment was ``split up'' or the individual was diagnosed years 
later. Nothing in the IFR prevents the payment of compensation under 
such circumstances, provided that the definition of a ``qualifying 
brain injury'' is otherwise met.
    One comment focused on the date of the injury, expressing a belief 
that the Department should compensate individuals who suffered 
qualifying injuries prior to January 1, 2016. The Department is unable 
to accept this suggestion. The HAVANA Act specifies that payments are 
for injuries occurring on or after January 1, 2016. The Department does 
not have the authority to provide payments for injuries occurring prior 
to that date without an amendment to the HAVANA Act or additional 
legislative action.
    In addition to the comments discussed above concerning the 
Department's definition of a ``qualifying brain injury,'' multiple 
comments urged that the final rule incorporate some mechanism to 
facilitate changes to the Department's framework for determining 
eligibility for payment based on science or diagnostic breakthroughs. 
The Department declines to incorporate such a mechanism into this final 
rule but may conduct rulemaking in the future in accordance with 
existing laws and regulations, should circumstances so dictate.
    One comment urged the Department to provide reasons for a denial of 
requests for benefits to a claimant and develop a meaningful appeals 
process that employees can use in the event of a denial of benefits. 
Under the IFR, the Department already provides claimants who have been 
denied a payment with the reason for the denial. Additionally, the 
Department believes that its current appeals process, which provides 
for

[[Page 102703]]

higher-level review of any denial, offers adequate and meaningful 
review of denials.
    One comment, seeking to ensure greater transparency about the 
Department's decision-making process, raised concerns with the use of 
non-public information maintained by the State Department in the 
Department's consultation process with the State Department. 
Consultation with the State Department may assist the Department in 
determining, in part, a claimant's eligibility for benefits under the 
HAVANA Act. In particular, because a qualifying injury to the brain 
must have occurred in connection with war, insurgency, hostile act, 
terrorist activity, or other incidents designated by the Secretary of 
State or the Secretary of Commerce, consultation with the State 
Department may assist in determining whether an injury is connected to 
an incident designated by the Secretary of State. However, the State 
Department, not the Department of Commerce, determines whether such 
information is administratively controlled or made publicly available.

Regulatory Analysis

Administrative Procedure Act

    Because this rule is a matter relating to agency management or 
personnel or to public property, loans, grants, benefits, or contracts, 
it is exempt from the requirements of 5 U.S.C. 553. See 5 U.S.C. 
553(a)(2). Furthermore, because this final rule does not change the 
regulatory provisions previously implemented by the IFR, a delay in 
effective date is unnecessary and therefore the Department finds good 
cause for this rule to take effect immediately. Furthermore, because 
this final rule does not change the regulatory provisions previously 
implemented by the IFR, a delay in effective date is unnecessary and 
therefore the Department finds good cause for this rule to take effect 
immediately. See 5 U.S.C. 553 (d)(3).

Regulatory Flexibility Act

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

Executive Order 12866 and Executive Order 13563

    This rule has been determined to be a significant regulatory action 
under Executive Order 12866, as amended by Executive Order 14094.
    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 
proposed regulation is consistent with the guidance therein.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501, et seq.) (PRA), the information collection associated with this 
final rule was approved by the Office of Management and Budget (OMB) 
under OMB Control Number 0690-0037. Notwithstanding any other provision 
of the law, no person is required to respond to, nor shall any person 
be subject to a penalty for failure to comply with, a collection of 
information subject to the requirements of the PRA, unless that 
collection of information displays a currently valid OMB Control 
Number.
    Accordingly, the Department of Commerce adopts the interim rule 
published April 19, 2023, at 88 FR 24110, as final without change.

    Dated: December 13, 2024.
Jeremy Pelter,
Deputy Assistant Secretary for Administration, performing the non-
exclusive functions and duties of the Chief Financial Officer and 
Assistant Secretary of Commerce for Administration, U.S. Department of 
Commerce.
[FR Doc. 2024-29993 Filed 12-17-24; 8:45 am]
BILLING CODE 3510-17-P
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