SUPPLEMENTARY INFORMATION:

I. Background

This action amends Commerce's regulations at 15 CFR part 3, which implement the HAVANA Act. The HAVANA Act was signed into law on October 8, 2021, and, broadly speaking, it permits agency heads to provide compensation to their employees and other individuals (including former employees and certain dependents) for qualifying brain injuries (Pub. L. 117-46). The HAVANA Act was enacted against the backdrop of several reports of government personnel experiencing “Havana Syndrome,” also known as Anomalous Health Incidents (AHIs).

Under the HAVANA Act, the Secretary of State and other agency heads—including the Secretary of Commerce—“may provide payment to a covered dependent, a dependent of a former employee, a covered employee, a former employee, and a covered individual for a qualifying injury to the brain.” 22 U.S.C. 2680b(i)(2). To that end, the HAVANA Act directs such agency heads to “prescribe regulations to carry out” subsection (i), see22 U.S.C. 2680b(i)(4)(A), and clarifies that such regulations must “include regulations detailing fair and equitable criteria for payment,” see22 U.S.C. 2680(i)(4)(B).

Commerce promulgated the regulations at part 3 via final rule on December 18, 2024 (89 FR 102701), citing 22 U.S.C. 2680b as the underlying statutory authority. Part 3 consists of four sections: § 3.1 addresses the authority for part 3; § 3.2 sets forth definitions for various terms, including one for the term “other incident”; § 3.3 establishes the rules regarding eligibility for payments by Commerce, including the framework for administrative decisions and appeals; and § 3.4 addresses consultation with other agencies as well as the ineligibility of individuals who are current or former employees of other agencies.

On December 18, 2025, Congress amended the HAVANA Act to cover qualifying injuries dating back to September 11, 2001 (Pub. L. 119-60, Sec. 5604). Previously, the start date had been January 1, 2016.

II. Discussion

Commerce is making the following amendments to the regulations at 15 CFR part 3.

First, Commerce is removing the word “sole” from the final sentence of § 3.1(a), which states that “[t]he authority to provide [payments for a qualifying injury to a covered individual] is at the sole discretion of the Secretary or their designee.” 15 CFR 3.1(a). The inclusion of the word “sole” does not track any language from HAVANA Act; the statute, instead, commands Commerce to issue “regulations detailing fair and equitable criteria for payment.” 22 U.S.C. 2680(i)(4)(B). Based on that statutory language, Commerce considers the inclusion of “sole” be both unnecessary and potentially excessive. The elimination of this word will also promote uniformity between part 3 and the HAVANA Act regulations promulgated by DOW at 32 CFR part 49 or by DOJ at 28 CFR part 106, as those other agencies' regulations acknowledge the agency head's discretion but do not use the phrase “sole discretion.”

Second, Commerce is amending § 3.2(f), which sets forth a definition of the term “[o]ther incident,” to include a reference to the designation process under 22 U.S.C. 2680b. Currently, § 3.2(f) defines “[o]ther incident” to mean “[a] new onset of physical manifestations that cannot otherwise be readily explained.” 15 CFR 3.2(f). By comparison, the regulations promulgated by DOW and DOJ define “other incident” to mean “[a] new onset of physical manifestations that cannot otherwise be readily explained and that is designated under 22 U.S.C. 2680b. ” 32 CFR 49.2 (emphasis added); 28 CFR ( printed page 23907) 106.2(e) (same). Commerce has determined that adding the same designation language to § 3.2(f) will enhance clarity, ensure statutory conformity, and promote uniformity.

Third, Commerce is amending §§ 3.2(a)(3) and 3.4 to clarify the intended eligibility rules regarding persons with ties to Commerce and persons with ties to other agencies. Currently, § 3.2(a)(3) establishes a brightline rule that “employees or retired employees of other agencies” are “not considered employees of the Department of Commerce for purposes of this part,” 15 CFR 3.2(a)(3), and § 3.4 similarly establishes that Commerce “will not process payment for employees, former employees, or dependents of current or former employees of other agencies,” 15 CFR 3.4. Neither of these eligibility rules is required by the HAVANA Act. Upon closer review, Commerce finds these sections to be more restrictive than intended. The appropriate framework is that Commerce will consider payment requests tied to an injury suffered while the injured person was working for Commerce, and Commerce will not consider payment requests tied to an injury suffered while the injured person was working for another agency. But, if applied literally, the language of §§ 3.2(a)(3) and 3.4 would render ineligible, among others, (i) any current or retired Commerce employee who previously was an employee of another agency, and (ii) anyone who is a dependent of both an employee of Commerce and an employee of another agency. Commerce is therefore amending §§ 3.2(a)(3) and 3.4 to align with the appropriate, intended framework and to avoid these unintended outcomes. Specifically, Commerce is amending § 3.2(a)(3) to track DOJ's language at 28 CFR 106.2(a)(3), which includes a tie to the “time of the injury,” and Commerce is amending § 3.4 by adding similar language. These amendments will enhance clarity and better fulfill the statutory command to issue “fair and equitable criteria for payment.” 22 U.S.C. 2680(i)(4)(B).

Fourth, Commerce is updating part 3 by replacing all references to “January 1, 2016,” with references to “September 11, 2001,” consistent with the December 18, 2025 amendment to the HAVANA Act (Pub. L. 119-60, Sec. 5604).

III. Classification

A. Administrative Procedure Act

Commerce issues this final rule without prior public notice and comment pursuant to the Administrative Procedure Act's exception for rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. 553(a)(2). Because this rule amends 15 CFR part 3, which pertains to compensation for current and former employees of Commerce (and their dependents), this rule falls within the exception set forth by 5 U.S.C. 553(a)(2).

B. Executive Orders 12866, 14192, 13132

The Office of Management and Budget has determined this rule is not significant pursuant to Executive Order (E.O.) 12866. This final rule is not subject to E.O. 14192 because it is not significant pursuant to E.O. 12866. This rule does not contain policies having federalism implications as the term is defined in E.O. 13132.

C. Regulatory Flexibility Act

Because a notice of proposed rulemaking and an opportunity for public participation are not required to be given for this rule by 5 U.S.C. 553(a)(2), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

D. Paperwork Reduction Act

This rule will not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

For the reasons set forth in the preamble, the Department of Commerce amends 15 CFR part 3 to read as follows:

91 FR 23906