[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