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 www.regulations.gov 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—§ 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, § 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 § 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—§ 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, ( printed 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 § 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, www.cdc.gov/​chronic-disease/​about/​index.html (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—§ 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. See5 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 ( printed 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—§ 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. See22 U.S.C. 2680b(i)(1)(D) (cross-referencing subparagraph 2680b(e)(4)).

Procedures—§ 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, see22 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 ( printed 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.

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:

91 FR 67476