Implementation of HAVANA Act of 2021

Issuing agencies

Abstract

On April 19, 2024, the Department of Justice published an interim final rule to implement the HAVANA Act of 2021. No comments were received on the interim final rule. The HAVANA Act authorizes agency heads to provide payments to certain individuals who have incurred qualifying injuries to the brain. This final rule adopts the interim final rule with minor, non-substantive changes to the titles of certain officials involved in the payment review process and the earliest eligibility date for claims in accordance with statutory changes occurring after issuance of the interim final rule. This rule covers current and former Department of Justice employees and their dependents.

Full Text

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<title>Federal Register, Volume 91 Issue 206 (Tuesday, October 27, 2026)</title>
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[Federal Register Volume 91, Number 206 (Tuesday, October 27, 2026)]
[Rules and Regulations]
[Pages 67476-67480]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21923]


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DEPARTMENT OF JUSTICE

28 CFR Part 106

[JMD Docket No. 157; A.G. Order No. 7256-2026]
RIN 1105-AB71


Implementation of HAVANA Act of 2021

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: On April 19, 2024, the Department of Justice published an 
interim final rule to implement the HAVANA Act of 2021. No comments 
were received on the interim final rule. The HAVANA Act authorizes 
agency heads to provide payments to certain individuals who have 
incurred qualifying injuries to the brain. This

[[Page 67477]]

final rule adopts the interim final rule with minor, non-substantive 
changes to the titles of certain officials involved in the payment 
review process and the earliest eligibility date for claims in 
accordance with statutory changes occurring after issuance of the 
interim final rule. This rule covers current and former Department of 
Justice employees and their dependents.

DATES: This final rule is effective on November 27, 2026.

FOR FURTHER INFORMATION CONTACT: Gordon R. Jimison, Assistant General 
Counsel, Justice Management Division; email: 
<a href="/cdn-cgi/l/email-protection#2c6b435e484342027e02664541455f43426c595f484346024b435a"><span class="__cf_email__" data-cfemail="80c7eff2e4efeeaed2aecae9ede9f3efeec0f5f3e4efeaaee7eff6">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: The Department of Justice (``Department'') 
published an interim final rule titled ``Implementation of HAVANA Act 
of 2021,'' which appeared in the Federal Register on April 19, 2024 (89 
FR 28633). A technical correction to that interim final rule was 
published in the Federal Register on May 3, 2024 (89 FR 36671). That 
correction was effective on May 20, 2024.
    The interim final rule implemented the HAVANA Act of 2021, Public 
Law 117-46, 135 Stat. 391 (2021) (codified at 22 U.S.C. 2680b(i)). The 
HAVANA Act authorizes agency heads to provide payments to certain 
individuals who have incurred qualifying injuries to the brain. The 
interim final rule covers current and former Department of Justice 
employees and their dependents. The comment period on the interim final 
rule closed June 18, 2024.
    The Department received no written or electronic comments on the 
interim final rule during the comment period. Although the Department 
received no comments about the commenting process, the Department was 
concerned that the public may have been hindered from submitting 
electronic comments through the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> because of a technical problem that was discovered 
after the comment period closed. Accordingly, on October 8, 2024, the 
Department reopened the comment period until November 18, 2024. The 
Department received no written or electronic comments during the 
reopened comment period.
    After conclusion of the comment period, the Federal Bureau of 
Investigation (FBI) and the Justice Management Division (JMD) conducted 
reorganizations of their respective components, resulting in changes to 
the titles of certain officials involved in the process set forth in 
the rule. Specifically, in the FBI, the interim final rule referred to 
the ``Executive Assistant Director, Human Resources Branch;'' this 
official is now identified as the ``Operations Director, Human Capital 
Branch.'' In the Justice Management Division, the ``Deputy Assistant 
Attorney General, Human Resources and Administration'' is now known as 
the ``Deputy Assistant Attorney General for Human Capital.''
    This rule implements the HAVANA Act of 2021, Public Law 117-46, 135 
Stat. 391 (2021) (codified at 22 U.S.C. 2680b(i)).

Background and Authority--Sec.  106.1

    In 2016, Department of State employees stationed in Havana, Cuba, 
began reporting a sudden onset of symptoms, including headaches, pain, 
nausea, disequilibrium, and hearing loss, in conjunction with sensory 
events. Federal agencies have called such incidents Anomalous Health 
Incidents (``AHIs''). Since 2016, Federal employees in numerous 
countries reported suspected AHIs. On December 20, 2019, Congress 
authorized the Department of State to pay benefits to employees and 
their dependents for injuries suffered after January 1, 2016, in the 
Republic of Cuba, the People's Republic of China, or other foreign 
countries designated by the Secretary of State, in connection with war, 
insurgency, hostile acts, or terrorist activity, or in connection with 
other incidents designated by the Secretary of State. See Further 
Consolidated Appropriations Act, 2020, Public Law 116-94, div. J, title 
IX, Sec.  901, 133 Stat. 2534, 3079-81 (2019) (codified as amended at 
22 U.S.C. 2680b). These benefits were limited to State Department 
employees only (i.e., not other employees under Chief of Mission 
(``COM'') authority).
    On January 1, 2021, Congress amended this law to authorize other 
Federal Government agencies to provide benefits to their own employees 
under COM authority if they suffered similar injuries. National Defense 
Authorization Act for Fiscal Year 2021, Public Law 116-283, 1110, 134 
Stat. 3388, 3892-93 (2021).
    On October 8, 2021, Congress passed the Helping American Victims 
Afflicted by Neurological Attacks or the HAVANA Act of 2021, Public Law 
117-46, 135 Stat. 391 (2021) (``HAVANA Act''). In the HAVANA Act, 
Congress authorized Federal Government agencies to compensate affected 
current employees, former employees, and their dependents for 
qualifying injuries to the brain. The HAVANA Act also omitted the 
previous law's requirement that the qualifying injury must occur in the 
Republic of Cuba, the People's Republic of China, or another foreign 
country designated by the Secretary of State. The scope of coverage now 
includes a qualifying injury that occurs in any foreign or domestic 
location. The HAVANA Act requires Federal agencies who make payments 
under the HAVANA Act to prescribe implementing regulations not later 
than 180 days after the effective date of the Act. Section 9216 of the 
National Defense Authorization Act for Fiscal Year 2023, Public Law 
117-263, 136 Stat. 2395, 3877 (2022) (codified at 22 U.S.C. 2680b(j)), 
provided agencies with authority to designate incidents affecting 
employees or dependents who are not under the security responsibility 
of the Secretary of State.
    This rule implements section 3 of the HAVANA Act as it applies to 
the Department of Justice (the ``Department''). This rule only applies 
to current and former employees of the Department and their dependents, 
as defined in Sec.  106.2 of this rule.
    On June 30, 2022, the Department of State published an interim 
final rule to implement its requirements under the HAVANA Act, with an 
effective date of August 15, 2022. 87 FR 38981 (June 30, 2022) 
(codified at 22 CFR pt. 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 pt. 135). The Department of 
Justice has independently reviewed the approach implemented by the 
Department of State in these rules and has determined that its approach 
is reasonable and well considered. Accordingly, the Department of 
Justice plans to adopt that approach as appropriate in its regulations 
to ensure consistency of benefits among Federal employees and their 
dependents. In particular, the Department based its final rule on the 
Department of State's definitions and process for the payment of 
benefits.
    On December 18, 2025, Congress amended the HAVANA Act to cover 
qualifying injuries dating back to September 11, 2001, rather than 
January 1, 2016 (Pub. L. 119-60, Sec. 5604).

Definitions--Sec.  106.2

    The rule defines those who are eligible to receive payments: 
covered employees (including current and former employees) and covered 
dependents who on or after September 11, 2001, experience a qualifying 
brain injury. A ``covered employee'' includes all Department employees, 
including employees on Limited Non-Career Appointments, employees on 
Temporary Appointments, personnel hired on Personal Services Contracts,

[[Page 67478]]

and students providing volunteer services under 5 U.S.C. 3111.
    An employee's family member is a covered dependent if, on or after 
September 11, 2001, the family member experiences a qualifying injury. 
The rule defines the family members who are eligible as certain 
dependent children, parents residing with the employee sponsor, 
dependent siblings, or spouses.
    For the purposes of this rule, the Department also adopts the 
Department of State's definition of ``qualifying injury to the brain.'' 
22 CFR 135.2. The Department has determined that the Department of 
State definition is reasonable and well considered. The Department of 
State consulted with the chief medical officers at other Federal 
agencies and experts at civilian medical centers of excellence. There 
is no diagnostic code or criteria for AHIs in the International 
Classification of Diseases, Tenth Revision, Clinical Modification (ICD-
10-CM). Because of the varied symptoms and still nascent understanding 
of how to test or otherwise screen for AHI impacts, the standard 
adopted is broadly inclusive of the types of injuries that have been 
reported to date.
    The definition of ``qualifying injury to the brain'' is based on 
current medical practices related to brain injuries. The individual 
must have: (1) an acute injury to the brain such as a concussion, a 
penetrating injury, or an injury as the consequence of an event that 
leads to permanent alterations in brain function as demonstrated by 
confirming correlative findings on imaging studies; (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 or a physical exam 
or other appropriate testing, that required active medical treatment 
for 12 months or more.
    The first component of the definition of ``qualifying injury to the 
brain'' set forth in Sec.  106.2(d)(2)(i) accounts for a variety of 
observable impacts to an individual, including a concussion or a 
penetrating injury or, absent either of those, permanent alterations in 
brain function as confirmed by a board-certified physician's review of 
a variety of forms of medical imaging evidence. The goal with this 
standard is to ensure there is some documented evidence of impact to 
the brain, while minimally circumscribing what that impact entails. The 
second and third components of the definition (paragraphs (d)(2)(ii)-
(iii) of the definition) 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 reported 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, <a href="https://www.cdc.gov/chronic-disease/about/index.html">https://www.cdc.gov/chronic-disease/about/index.html</a> (last reviewed October 8, 2026). The 
Department notes that applicants who have suffered kinetic or external, 
physically caused injuries to the brain such as the head striking an 
object, the brain undergoing an acceleration or deceleration movement, 
or brain injuries from events such as a blast or explosion, including 
penetrating injuries, may be eligible if the injuries satisfy the other 
requirements of this rule.
    Under the HAVANA Act, the injury must have occurred ``in connection 
with war, insurgency, hostile act, terrorist activity, or other 
incidents designated by the Secretary of State,'' and cannot have been 
``the result of the willful misconduct'' of the covered individual. 22 
U.S.C. 2680b(e)(4)(A)(ii)-(iii), (e)(4)(B)(ii)-(iii), (i)(1)(D). The 
Department will work with an applicant upon the applicant's submission 
of the DS-4316, ``Eligibility Questionnaire for HAVANA Act Payments,'' 
to determine whether his or her alleged incident qualifies.
    The definition of ``other incident'' is a new onset of physical 
manifestations that cannot otherwise be readily explained and that is 
designated under 22 U.S.C. 2680b. The Department will review available 
information on the reported incident. If a physician does not indicate 
that there is a credible alternative explanation for the individual's 
symptoms, and if the information the Department has regarding the 
incident does not provide a credible alternative explanation for the 
incident, that incident will be recommended for designation. Incidents 
for which an alternative explanation has been identified will not be 
recommended for designation. For incidents affecting employees or 
dependents who are not under the security responsibility of the 
Secretary of State, the Department will determine whether to designate 
such incidents.

Eligibility for Payments--Sec.  106.3

    The Department will make available to its workforce information on 
the regulations and the process to apply for HAVANA Act payments. 
Current employees, former employees, and covered dependents (as defined 
in this rule) can apply for consideration. Applicants will be required 
to provide the necessary documentation so the Department may determine 
whether they qualify for payment. The DS-4316, ``Eligibility 
Questionnaire for HAVANA Act Payments,'' is the form associated with 
developing the necessary evidence to submit a claim, and it will be 
available upon request with instructions on how to apply for a HAVANA 
Act payment. A portion of the form must be filled out by a qualified 
physician; the rule specifies certain board certification requirements 
for physicians who can evaluate a qualifying injury to the brain.
    The Department has determined that the payment scheme set forth in 
the Department of State's HAVANA Act regulations, 22 CFR 135.3, is well 
reasoned and provides an effective means of compensating covered 
employees. Accordingly, the Department has adopted it for purposes of 
this rulemaking. Pursuant to this final rule, the Department, in its 
discretion, may authorize a one-time, non-taxable, lump sum payment 
based on, and may not exceed, Level III of the Executive Schedule. See 
5 U.S.C. 5311 et seq. The payment is non-taxable pursuant to 22 U.S.C. 
2680b(g). Payment eligibility and the amount of the payment will be at 
the Department's discretion. The maximum should be awarded only 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 his or her work-related duties. The purpose is to compensate 
individuals only for qualifying brain injuries that meet the criteria 
set forth in this rule. The following factors will be taken into 
account to determine the amount of the payment to be authorized: (1) 
the applicant's responses on the eligibility form; and (2) whether the 
Department of Labor (Office of Workers' Compensation Programs) has 
determined that the applicant has no reemployment potential for the 
indefinite future, the Social Security Administration (``SSA'') has 
approved the applicant for Social Security Disability Insurance or 
Supplemental Security Income benefits, or the applicant's board-
certified physician has certified that the individual requires a full-
time caregiver for activities of daily living, as defined

[[Page 67479]]

by the Katz Index of Independence in Activities of Daily Living.
    The award thresholds are based on, and may not exceed, Level III of 
the Executive Schedule. A Base payment will be 75 percent of Level III 
pay, and a Base+ payment will be 100 percent of Level III pay. The 
specific use of Level III of the Executive Schedule sets the 
compensation at the maximum annual salary potentially available to most 
of the Federal workforce. The Department believes this amount is the 
most it can reasonably compensate each applicant while ensuring funds 
for the total number of applicants it believes will likely receive 
payments. If the applicant meets any of the criteria for severe 
impacts, the applicant will be eligible to receive a Base+ payment. 
Applicants whose board-certified physician confirms that the definition 
of qualifying injury to the brain has been met, but who have not met 
any of the criteria for severe impacts, will be eligible to receive a 
Base payment.
    The criteria established for severe impacts are reflective of the 
Department's objective of ensuring that the individuals most severely 
affected by AHIs (as indicated by a lack of reemployment potential, an 
inability to engage in substantial gainful activity, or the need for a 
full-time caregiver) receive additional payment. The use of the 
Department of Labor's or the SSA's determination is to ensure that both 
Federal employees as well as their dependents have access to a 
mechanism for this determination. The Department recognizes that the 
criteria the Department of Labor and SSA use in their determinations 
are distinct, as well as the fact that the procedural timelines for 
seeking and receiving approval may be different between these agencies. 
The third option, that a board-certified physician certify that the 
individual requires a full-time caregiver for activities of daily 
living, provides an alternative mechanism for all individuals. Finally, 
the Department notes that if an applicant who received a Base payment 
later meets any of the criteria listed for severe impacts, the 
applicant may apply for an additional payment that will be the 
difference between the Base and Base+ payment. As the payments are tied 
to the Executive Schedule payment levels, the amounts will change over 
time based on changes to the Federal salary schedule. Payments will be 
based on the Executive Schedule in effect at the time the payment was 
approved.
    While payments under the HAVANA Act may be in addition to other 
leave benefits, disability benefits, or workers' compensation payments 
that the applicant may be receiving or may be entitled to receive that 
also help augment any loss of income, the Department believes this is 
an appropriate additional payment. This payment scheme is also 
consistent with what is being offered by other Federal agencies and 
will ensure consistency of benefits among affected individuals.
    The Department notes that payments may only be made using amounts 
appropriated in advance specifically for this purpose in the relevant 
fiscal year, unless Congress specifies otherwise. Therefore, payments 
are contingent on appropriated funds, and all payments will be paid out 
on a first-come, first-served basis.

Consultations With the Department of State--Sec.  106.4

    Under the rule, the Department's procedures for determining whether 
an incident has been designated under 22 U.S.C. 2680b include, where 
appropriate, consultation with the Secretary of State. See 22 U.S.C. 
2680b(i)(1)(D) (cross-referencing subparagraph 2680b(e)(4)).

Procedures--Sec.  106.5

    Each Federal agency is responsible for (1) processing applications 
for the HAVANA Act payments; (2) determining or, as necessary, 
consulting with the Secretary of State to determine, whether the 
incident causing the injury may be deemed a designated incident under 
the statute, see 22 U.S.C. 2680b(j); id. 2680b(i)(1)(D) (cross-
referencing subparagraph 2680b(e)(4)); (3) determining eligibility for 
the benefit, determining the amount of the benefit, and processing 
payment of the benefit; and (4) notifying applicants upon receipt of 
their applications and when a decision has been made whether to 
authorize payment.
    The Operations Director, Human Capital Branch, Federal Bureau of 
Investigation (``FBI''), is authorized to approve HAVANA Act payments 
to FBI employees or their covered dependents. The Deputy Assistant 
Attorney General for Human Capital, Justice Management Division 
(``JMD''), is authorized to approve HAVANA Act payments for all other 
Department employees or their covered dependents. If payment is denied 
by the designated FBI or JMD official, the applicant may direct an 
appeal to the Assistant Attorney General for Administration within 60 
days of the notification of denial, but decisions on the amount of 
payment are not appealable.

Regulatory Analysis

    In developing this final rule, the Department considered numerous 
statutes and executive orders applicable to rulemaking. The 
Department's analysis of the applicability of those statutes and 
executive orders to this rule is summarized below.

Congressional Review Act

    This rule is not a major rule as defined by 5 U.S.C. 804 for the 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801-808.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, or 
Tribal governments, in the aggregate, or by the private sector, of $100 
million in any year, and it will not significantly or uniquely affect 
small governments. Therefore, no actions were deemed necessary under 
the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1501 et seq.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
Tribal implications, will not impose substantial direct compliance 
costs on Indian Tribal governments, and will not preempt Tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Regulatory Flexibility Act: Small Business

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

Executive Order 12866, Executive Order 13563, and Executive Order 14192

    The Department provided this final rule to the Office of Management 
and Budget for its review. The Office of Information and Regulatory 
Affairs has designated this rule as ``significant'' under Executive 
Order 12866. The Department has also reviewed the rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866 and finds that the benefits of the rule (in 
providing mechanisms for individuals to obtain compensation for certain 
injuries) outweigh any costs to the public, which are limited, given 
the anticipated small number of individuals with qualifying injuries. 
The

[[Page 67480]]

Department has also considered this rulemaking in light of Executive 
Order 13563 and affirms that this proposed regulation is consistent 
with the guidance therein. This rule merely finalizes an existing 
interim final rule without substantive change and imposes no 
incremental costs. Therefore, it is not a regulatory action under 
Executive Order 14192.

Executive Order 12988

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

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationships between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132, it is determined that this rule does not have sufficient 
federalism implications to require consultations or warrant the 
preparation of a federalism summary impact statement.

Paperwork Reduction Act

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

List of Subjects in 28 CFR Part 106

    Government employees, Federal retirees, Health care.

    Accordingly, the interim rule adding 28 CFR part 106, which was 
published at 89 FR 28633 on April 19, 2024, is adopted as final with 
the following changes:

0
1. The authority citation for part 106 continues to read as follows:

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


Sec.  106.2   [Amended]

0
2. Amend Sec.  106.2 by:
0
a. In paragraph (a)(1) removing the date ``January 1, 2016'' and adding 
in its place the date ``September 11, 2001'';
0
b. In paragraph (b) removing the date ``January 1, 2016'' and adding in 
its place the date ``September 11, 2001''; and
0
c. In paragraph (d):
0
i. Removing the term ``Executive Assistant Director, Human Resources 
Branch'' and adding in its place the term, ``Operations Director, Human 
Capital Branch''; and
0
ii. Removing the term ``Deputy Assistant Attorney General, Human 
Resources and Administration'' and adding in its place the term, 
``Deputy Assistant Attorney General, Human Capital.''

    Dated: October 22, 2026.
Todd Blanche,
Attorney General.
[FR Doc. 2026-21923 Filed 10-26-26; 8:45 am]
BILLING CODE 4410-AR-P


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