Rule2024-27112
Implementation of HAVANA Act of 2021
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 20, 2024
Effective
November 20, 2024
Issuing agencies
Agriculture Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 224 (Wednesday, November 20, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.regulations.gov">http://www.regulations.gov</a> 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 <a href="/cdn-cgi/l/email-protection#f6bc999e98d8b29395978299b683859297d8919980"><span class="__cf_email__" data-cfemail="9ad0f5f2f4b4defff9fbeef5daefe9fefbb4fdf5ec">[email protected]</span></a>, 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
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