Disaster Assistance Loan Program Statutory Updates (rule, 88 FR 24107, April 19, 2023)
Summary
A direct final rule from the U.S. Small Business Administration (SBA) amending the disaster assistance regulations to reflect changes made to the Small Business Act by several recent statutes. It was published in the Federal Register on April 19, 2023 (Vol. 88, No. 75). It provides two new types of disaster declaration authority and revises primary eligibility for the Military Reservist Economic Injury Disaster Loan (MREIDL) program. SBA revises 13 CFR 123.3, including a paragraph on the authority under section 1110(f) of the CARES Act to declare an economic injury disaster following a presidential emergency declaration under Section 501(b) of the Stafford Act. The rule is effective June 5, 2023 unless significant adverse comment is received by May 19, 2023.
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Cite this document
“Disaster Assistance Loan Program Statutory Updates (rule, 88 FR 24107, April 19, 2023).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/disaster-assistance-loan-program-statutory-updates-rule-88-fr-24107-ap-d5c617ab94/
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24107
Rules and Regulations Federal Register
Vol. 88, No. 75
Wednesday, April 19, 2023
This section of the FEDERAL REGISTER information and make the final business concern, private nonprofit
contains regulatory documents having general determination whether it will publish organization, or small agricultural
applicability and legal effect, most of which the information. cooperative in the rural area has
are keyed to and codified in the Code of incurred ‘‘significant damage.’’ The
FOR FURTHER INFORMATION CONTACT: Eric
Federal Regulations, which is published under Disaster Assistance for Rural
50 titles pursuant to 44 U.S.C. 1510.
Wall, Office of Disaster Recovery and
Resilience, 409 3rd St. SW, Washington, Communities Act defines ‘‘rural area’’ as
The Code of Federal Regulations is sold by DC 20416, (202) 205–6739. any county or other political
the Superintendent of Documents. SUPPLEMENTARY INFORMATION: subdivision of a State, the District of
Columbia, or a territory or possession of
I. Background the United States that is designated as
SMALL BUSINESS ADMINISTRATION This direct final rule implements a rural area by the Bureau of the Census.
regulatory changes required by three The Act defines ‘‘significant damage’’ as
13 CFR Part 123 recent laws amending the Small uninsured losses of 40 percent or more
RIN 3245–AH33 Business Act: The Disaster Assistance of the estimated fair replacement value
for Rural Communities Act, Public Law or pre-disaster fair market value of the
Disaster Assistance Loan Program 117–249 (December 20, 2022); the damaged property, whichever is lower.
Statutory Updates Coronavirus Aid, Relief, and Economic SBA has incorporated these new
AGENCY: U.S. Small Business
Security Act (CARES Act), Public Law statutory definitions into new
Administration. 116–136 (March 27, 2020); and the § 123.3(a)(6).
National Defense Authorization Act for SBA is also adding paragraph (a)(7) to
ACTION: Direct final rule.
Fiscal Year 2020 (NDAA 2020), Public describe SBA’s new declaration
SUMMARY: SBA is amending the disaster Law 116–92 (December 20, 2019). SBA authority authorized by the CARES Act.
assistance regulations to reflect changes has already implemented all of these 15 U.S.C. 636(b)(2)(D). Section 1110(f)
made to the Small Business Act by statutory changes except for the new of the CARES Act provides SBA the
several recent statutes. These changes rural declaration authority authorized authority to declare an economic injury
provide two new types of disaster by the Disaster Assistance for Rural disaster following a declaration of an
declaration authority and revise Communities Act, which requires SBA emergency involving Federal primary
eligibility for the Military Reservist to issue implementing regulations responsibility under Section 501(b) of
Economic Injury Disaster Loan within 120 days after enactment. The the Stafford Act by the President. 42
(MREIDL) program. This direct final specific regulatory changes are further U.S.C. 5191(b). When the President
rule conforms the regulations to the Act described below. makes such a declaration, SBA will
by adopting the new statutory II. Description of Regulatory Changes ‘‘deem that such an emergency affects
requirements without change. each State or subdivision thereof
SBA is revising 13 CFR 123.3, How (including counties), and that each State
DATES: This rule is effective June 5, 2023
are disaster declarations made?, by or subdivision has sufficient economic
without further action, unless
adding two additional ways SBA is damage to small business concerns to
significant adverse comment is received
authorized to declare disasters. New qualify for assistance under this
by May 19, 2023. If significant adverse
paragraph (a)(6) describes SBA’s paragraph and [SBA] shall accept
comment is received, SBA will publish
declaration authority under the Disaster
a timely withdrawal of the rule in the applications for such assistance
Assistance for Rural Communities Act.
Federal Register. immediately.’’ See second proviso of
15 U.S.C. 636(b)(16). Under this new
ADDRESSES: You may submit comments, paragraph following 15 U.S.C.
authority, SBA is authorized to declare
identified by number SBA–2023–0001 636(b)(2)(E). This means that after the
a disaster in a ‘‘rural area’’ upon request
through the Federal eRulemaking Portal: President declares an emergency
by the Governor of the State or the Chief
http://www.regulations.gov. Follow the involving Federal primary responsibility
Executive of the Indian tribal
instructions for submitting comments. under Section 501(b) of the Stafford Act,
government in which the rural area is
SBA will post all comments on SBA will immediately make an
located if the following conditions are
www.regulations.gov. If you wish to economic injury disaster declaration
met: (1) the rural area has received a
submit confidential business major disaster declaration from the using this new authority. Once SBA
information (CBI) as defined in the User President under Section 401 of the makes this declaration, small businesses
Notice at www.regulations.gov, please Robert T. Stafford Disaster Relief and and nonprofit organizations of any size
send an email to Eric Wall at eric.wall@ Emergency Assistance Act (the Stafford would be eligible to apply for economic
sba.gov and highlight the information Act) (42 U.S.C. 5170),1 (2) individual injury disaster loans.
that you consider to be CBI and explain assistance under section 408 of the SBA is revising 13 CFR 123.4, What
why you believe SBA should hold this Stafford Act was not authorized for the is a disaster area and why is it
information as confidential. All other rural area, and (3) any home, small important?, to provide that contiguous
comments must be submitted through counties are not included in the disaster
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the Federal eRulemaking Portal 1 SBA notes that the Senate Report to the Disaster area for rural disaster declarations. SBA
described above. Highlight the Assistance for Rural Communities Act states that is adopting this interpretation based on
information that you consider to be CBI Congress intends that SBA’s rural disaster clear Congressional intent, as stated in
and explain why you believe SBA declaration authority is triggered solely in the Senate Report to the Disaster
situations where the President has declared a major
should hold this information as disaster limited to public assistance only. S. Rep. Assistance for Rural Communities Act:
confidential. SBA will review the No. 117–103, Section I (May 3, 2022). ‘‘The SBA declaration authorized under
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24108 Federal Register / Vol. 88, No. 75 / Wednesday, April 19, 2023 / Rules and Regulations
paragraph 16 of section 7(b) may not be member of a reserve component of the rural disaster declaration authority, all
applied to contiguous counties.’’ S. Rep. Armed Forces ordered to active service. of the changes are already in effect—
No. 117–103, Section IV (May 3, 2022). SBA is also revising paragraph (c) to SBA is merely updating the regulations
When SBA makes a rural disaster remove the definition of ‘‘period of in order to conform to the statute. In
declaration, physical and economic military conflict’’ and replace it with the implementing the rural disaster
injury disaster loans will be available definition of ‘‘active service’’, as declaration authority, SBA is adopting
only in the declared disaster area, not in provided in the NDAA 2020. regulations that conform to the statute
any counties or political subdivisions SBA is revising 13 CFR 123.501, and legislative history without any
that are contiguous to the declared area. Under what circumstances is our extraneous interpretation. Because the
SBA is also revising this provision to business eligible to be considered for a changes in this rule are prescribed by
state that when SBA issues an economic Military Reservist Economic Injury statute, SBA does not expect significant
injury disaster declaration in response Disaster Loan?, to remove the words adverse comments.
to a determination of an emergency ‘‘active duty’’ and replace them with
involving Federal primary responsibility ‘‘active service’’ in paragraph (a). SBA is Compliance With Executive Orders
by the President, the disaster area shall also revising paragraph (c) to remove the 12866, 12988, 13132, 13175, the
include each State or subdivision requirement that the essential employee Congressional Review Act (5 U.S.C.
thereof (including counties) included in be called to active duty during a 801–808), Paperwork Reduction Act (44
the President’s emergency military conflict and replace it with the U.S.C., Ch. 35), and the Regulatory
determination. If the President requirement that the essential employee Flexibility Act (5 U.S.C. 601–612)
determines that a nation-wide be called to active service for a period Executive Orders 12866 and 13563
emergency exists, then SBA will issue a of more than 30 consecutive days. The Office of Management and Budget
nation-wide economic injury disaster SBA is similarly revising 13 CFR
has determined that this rule is not a
declaration. 123.507, Under what circumstances will
significant regulatory action under
SBA is revising several sections in 13 SBA consider waiving the $2 million
Executive Order 12866, and a
CFR part 123, subpart F, Military loan limit?, to remove the requirement
Regulatory Impact Analysis is not
Reservist Economic Injury Disaster that the essential employee be called to
required. No action is warranted for
Loans, to reflect changes made by Sec. active duty during a military conflict
Executive Order 13563 as the rule is not
877 of the NDAA 2020. The NDAA 2020 and replace it with the requirement that
significant and no Regulatory Impact
expanded eligibility for Military the essential employee be called to
Analysis is required.
Reservist Economic Injury Disaster active service for a period of more than
Loans (MREIDLs) from reservists called 30 consecutive days. Executive Order 12988
to ‘‘active duty’’ to reservists called to Finally, SBA is revising §§ 123.503, This action meets applicable
‘‘active service.’’ The term ‘‘active 123.504(a) and (f), 123.505, 123.506, standards set forth in sections 3(a) and
service’’ has the meaning given in 10 123.507, and 123.511 to remove the 3(b)(2) of Executive Order 12988, Civil
U.S.C. 101(d)(3) and includes both words ‘‘active duty’’ and replace them Justice Reform, to minimize litigation,
‘‘active duty’’ and ‘‘full time National with ‘‘active service.’’ All of the changes eliminate ambiguity, and reduce
Guard duty.’’ 2 The NDAA also removed to 13 CFR subpart F have already been burden. The action does not have
the requirement that the reservist be implemented; this direct final rule preemptive effect or retroactive effect.
serving during a ‘‘period of military merely updates the regulations to reflect
conflict’’ and replaced it with the current statutory requirements. Executive Order 13132
requirement that the reservist be serving This rule does not have federalism
II. Justification for Direct Final Rule
for a period of more than 30 consecutive implications as defined in Executive
days.3 Agencies typically utilize direct final Order 13132. It will not have substantial
SBA is revising 13 CFR 123.500, rulemakings for routine, non- direct effects on the States, on the
Definitions, paragraph (b) to reflect the controversial regulatory actions that are relationship between the National
new definition of military reservist as a unlikely to receive adverse comments. Government and the States, or on the
In direct final rulemaking, an agency distribution of power and
2 ‘‘Active duty’’ is defined as full-time duty in the publishes a final rule with a statement responsibilities among the various
active military service of the United States. Such that the rule will go into effect unless
term includes full-time training duty, annual levels of government, as specified in the
training duty, and attendance, while in the active
the agency receives significant adverse Executive Order. As such it does not
military service, at a school designated as a service comment within a specified period. warrant the preparation of a Federalism
school by law or by the Secretary of the military Significant adverse comments are Assessment.
department concerned. 10 U.S.C. 101(d)(1). The comments that provide strong
term ‘‘full-time National Guard duty’’ means Executive Order 13175
training or other duty, other than inactive duty,
justifications why the rule should not be
performed by a member of the Army National adopted or for changing the rule. If the This rule does not have tribal
Guard of the United States or the Air National agency receives no significant adverse implications under Executive Order
Guard of the United States in the member’s status comment in response to the direct final 13175, Consultation and Coordination
as a member of the National Guard of a State or
territory, the Commonwealth of Puerto Rico, or the
rule, the rule goes into effect. If the with Indian Tribal Governments,
District of Columbia under section 316, 502, 503, agency receives significant adverse because it does not have a substantial
504, or 505 of title 32 [32 USCS §§ 316, 502, 503, comment, the agency withdraws the direct effect on one or more Indian
504, or 505] for which the member is entitled to pay direct final rule and may instead issue tribes, on the relationship between the
from the United States or for which the member has
waived pay from the United States. 10 U.S.C.
a proposed rulemaking. Federal Government and Indian tribes,
101(d)(5). SBA has determined that the or on the distribution of power and
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3 ‘‘Period of military conflict’’ was defined as (i) regulatory changes addressed in this responsibilities between the Federal
a period of war declared by the Congress; (ii) a direct final rulemaking are routine, non- Government and Indian tribes.
period of national emergency declared by the controversial, and not likely to result in
Congress or by the President; or (iii) a period of a
adverse comments. SBA is Congressional Review Act
contingency operation, as defined in section 101(a)
of title 10, United States Code. See Sec. 402(a) of implementing changes required by Subtitle E of the Small Business
Public Law 106–50, (August 17, 1999). statute and, with the exception of the Regulatory Enforcement Fairness Act of
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Federal Register / Vol. 88, No. 75 / Wednesday, April 19, 2023 / Rules and Regulations 24109
1996, also known as the Congressional Authority: 15 U.S.C. 632, 634(b)(6), 636(b), include contiguous counties for both
Review Act or CRA, generally provides 636(d), 657n, and 9009. physical, economic injury and, in some
that before a rule may take effect, the ■ 2. Amend § 123.3 by revising cases IDAP assistance. Rural disaster
agency promulgating the rule must paragraph (a) introductory text and declarations do not include assistance
submit a rule report, which includes a adding paragraphs (a)(6) and (7) to read for contiguous counties. Contiguous
copy of the rule, to each House of the as follows: counties or other political subdivisions
Congress and to the Comptroller General are those land areas which abut the land
of the United States. SBA will submit a § 123.3 How are disaster declarations area of the declared disaster area
report containing this rule and other made? without geographic separation other
required information to the U.S. Senate, (a) There are seven ways in which than by a minor body of water, not to
the U.S. House of Representatives, and disaster declarations are issued which exceed one mile between the land areas
the Comptroller General of the United make SBA disaster loans possible: of such counties. When SBA issues an
States. A major rule under the CRA * * * * * economic injury disaster declaration in
cannot take effect until 60 days after it (6) SBA makes a physical disaster response to a determination of an
is published in the Federal Register. declaration in a rural area (rural disaster emergency involving Federal primary
The Office of Information and declaration) upon request from the responsibility by the President, the
Regulatory Affairs has determined that Governor of the State or the Chief disaster area shall include each State or
this rule is not a ‘‘major rule’’ as defined Executive of the Indian tribal subdivision thereof (including counties)
by 5 U.S.C. 804(2). Therefore, this rule government in which the rural area is included in the President’s emergency
is not subject to the 60-day restriction. located. Rural area means any county or determination.
Paperwork Reduction Act, 44 U.S.C. other political subdivision of a State, the ■ 4. Amend § 123.500 by revising
Ch. 35 District of Columbia, or a territory or paragraphs (b) and (c) to read as follows:
possession of the United States that is
SBA has determined that this rule designated as a rural area by the Bureau § 123.500 Definitions.
does not impose additional reporting or of the Census. The following conditions * * * * *
recordkeeping requirements under the must be met: (b) Military reservist is a member of a
Paperwork Reduction Act, 44 U.S.C., (i) The President has declared a Major reserve component of the Armed Forces
Chapter 35. Disaster for the rural area, but has not ordered to active service.
Regulatory Flexibility Act, 5 U.S.C. 601 authorized individual assistance; and
(c) Active service has the meaning
(ii) Any home, small business
given in 10 U.S.C. 101(d)(3):
The Regulatory Flexibility Act (RFA), concern, private nonprofit organization,
5 U.S.C. 601–612, generally requires or small agricultural cooperative in the (1) Service on active duty; or
that when an agency issues a proposed rural area has incurred significant (2) Full-time National Guard duty.
rule, or a final rule pursuant to section damage. Significant damage means * * * * *
553(b) of the APA or another law, the uninsured losses of 40 percent or more ■ 5. Amend § 123.501 by revising
agency must prepare a regulatory of the estimated fair replacement value paragraphs (a) and (c) to read as follows:
flexibility analysis that meets the or pre-disaster fair market value of the
requirements of the RFA and publish damaged property, whichever is lower. § 123.501 Under what circumstances is
such analysis in the Federal Register. 5 (7) SBA makes an economic injury our business eligible to be considered for
U.S.C. 603, 604. disaster declaration in response to a a Military Reservist Economic Injury
Rules that are exempt from notice and determination of an emergency Disaster Loan?
comment are also exempt from the RFA involving Federal primary responsibility * * * * *
requirements, including conducting a by the President. (a) It is a small business as defined in
regulatory flexibility analysis, such as * * * * * 13 CFR part 121 when the essential
when—among other exceptions—the ■ 3. Revise § 123.4 to read as follows: employee was called to active service,
agency for good cause finds that notice * * * * *
and public procedure are impracticable, § 123.4 What is a disaster area and why is
it important? (c) The essential employee has been
unnecessary, or contrary to the public
called-up to active service for a period
interest. SBA Office of Advocacy Guide: Each disaster declaration defines the of more than 30 consecutive days,
How to Comply with the Regulatory geographical areas affected by the
Flexibility Act, Ch. 1. p. 9. Since this disaster. Only those victims located in * * * * *
rule is exempt from notice and the declared disaster area are eligible to ■ 6. Amend § 123.507 by revising
comment, SBA is not required to apply for SBA disaster loans. When the paragraph (b) to read as follows:
conduct a regulatory flexibility analysis. President declares a major disaster, the
Federal Emergency Management Agency § 123.507 Under what circumstances will
List of Subjects in 13 CFR Part 123 SBA consider waiving the $2 million loan
defines the disaster area. In major limit?
Disaster assistance, Loan mitigation, disasters, economic injury disaster loans
Loan programs—physical disaster and IDAP loans may be made for * * * * *
(home, business). victims in contiguous counties or other (b) Your small business is in
political subdivisions, provided, imminent danger of going out of
For the reasons set forth in the
however that with respect to major business as a result of one or more
preamble, the SBA amends 13 CFR part
disasters which authorize public essential employees being called up to
123 as follows:
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assistance only, SBA shall not make active service for a period of more than
PART 123—DISASTER LOAN economic injury disaster or IDAP loans 30 consecutive days, and a loan in
PROGRAM in counties contiguous to the disaster excess of $2 million is necessary to
area. Except for rural disaster reopen or keep open the small business;
■ 1. The authority citation for part 123 declarations (as defined in § 123.3), and
is revised to read as follows: disaster declarations issued by SBA * * * * *
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24110 Federal Register / Vol. 88, No. 75 / Wednesday, April 19, 2023 / Rules and Regulations
§ 123.503, 123.504, 123.505, 123.506, 123.511 concerning the process for submitting Definitions
[Amended] comments should be submitted to Anna The rule follows the definitional
■ 7. In addition to the amendments set Kelley at 202–482–2200 or anna.kelley@ template provided in the HAVANA Act
forth above, in part 123, remove the trade.gov. The information collection and its predecessors. The rule defines
words ‘‘active duty’’ and add in their form associated with this rule, certain categories of individuals as
place the words ‘‘active service’’ in the Eligibility Questionnaire for HAVANA employees, as well as those who are not
following places: Act Patients, is available at https:// considered employees.
■ a. Section 123.503; www.Regulations.gov under Docket No. The term ‘‘covered employee’’
■ b. Section 123.504(a) (three places) DOC–2023–0001 and at https:// captures Department Foreign Service
and (f); www.commerce.gov/havana-act. and Civil Service employees (regardless
■ c. Section 123.505 heading and text; FOR FURTHER INFORMATION CONTACT: of the nature of their appointment), as
■ d. Section 123.506; and Charles Cutshall, Chief Privacy Officer, well as National Oceanic and
■ e. Section 123.511 (two places). at 202–482–5735 or ccutshall@doc.gov. Atmospheric Administration
Isabella Casillas Guzman, SUPPLEMENTARY INFORMATION: Commissioned Corps Officers and
Administrator. students providing voluntary services
Background
[FR Doc. 2023–08010 Filed 4–18–23; 8:45 am]
under 5 U.S.C. 3111 who, on or after
On December 20, 2019, Congress gave January 1, 2016, became injured by a
BILLING CODE P
authority (Pub. L. 116–94, division J, qualifying injury to the brain while they
title IX, section 901) to the Department were an employee of the Department.
of State to pay benefits to certain The term ‘‘covered individual’’
DEPARTMENT OF COMMERCE individuals for injuries suffered after captures any former employee of the
January 1, 2016 in the Republic of Cuba, Department (including retired or
Office of the Secretary
the People’s Republic of China or separated employees) who, on or after
another foreign country designated by January 1, 2016, became injured by a
15 CFR Part 3
the Department of State, in connection qualifying injury to the brain while they
[Docket No. 230412–0101] with certain injuries designated by the were an employee of the Department.
RIN 0605–AA64 Secretary of State. These benefits were The term ‘‘covered dependent’’
limited to Department of State captures a family member of a
Implementation of HAVANA Act of employees, their dependents and other Department current or former employee
2021 individuals affiliated with the who, on or after January 1, 2016, became
Department of State. injured by reason of a qualifying injury
AGENCY: Department of Commerce. On January 1, 2021, Congress to the brain while the dependent’s
ACTION: Interim final rule; request for amended that law (Pub. L. 116–283, div. sponsor was an employee of the
comments. A, title XI, section 1110), authorizing Department. For purposes of
other Federal Government agencies determining whether an individual is a
SUMMARY: This rule implements the (such as the Department) to provide covered dependent, the term ‘‘family
HAVANA Act of 2021 (the Act) for the similar benefits to their own employees members’’ includes unmarried children
Department of Commerce (Department). for those injuries. Those provisions are under 21 years of age (or certain other
The Act provides the authority for the codified at 22 U.S.C. 2680b. children) at the time of injury; parents;
Secretary of Commerce and other On October 8, 2021, the ‘‘Helping sisters and brothers; and spouses. Step-
agency heads to provide payments to American Victims Afflicted by parents and step-siblings are included
certain individuals who have incurred Neurological Attacks’’ (HAVANA) Act in the definition.
qualifying injuries to the brain. The rule of 2021 became law (Pub. L. 117–46). In The definition of ‘‘qualifying injury to
covers current and former Department the latest Act, Congress authorized the brain’’ is based on current medical
employees, and dependents of current Federal Government agencies to practices related to brain injuries.
or former employees. compensate affected current employees, Further, the injury must have occurred
DATES: former employees, and their dependents in connection with certain hostile acts,
Effective date: This interim final rule for qualifying injuries to the brain. including war, terrorist activity, or other
is effective on April 19, 2023. Section 3 of the HAVANA Act of 2021 incidents designated by the Secretary of
Comments due date: To be assured of removed the requirement in Public Law State or the Secretary of Commerce, as
consideration, written comments on the 116–94, division J, title IX, section 901, permitted by law, and must not have
interim final rule must be received no that the qualifying injury occur in ‘‘the been the result of the willful
later than May 19, 2023. Republic of Cuba, People’s Republic of misconduct of the individual. The
ADDRESSES: Submit comments on this China, or other foreign country individual must have: an acute injury to
interim final rule through the Federal designated by the Secretary of State’’ for the brain such as, but not limited to, a
eRulemaking Portal at https:// the purpose of making a payment under concussion, penetrating injury, or as the
www.Regulations.gov, Docket No. DOC– the HAVANA Act. The Act also requires consequence of an event that leads to
2023–0001. All comments submitted the Department (and other agencies) to permanent alterations in brain function
during the comment period permitted ‘‘prescribe regulations’’ implementing as demonstrated by confirming
by this document will be a matter of the HAVANA Act not later than 180 correlative findings on imaging studies
public record and will generally be days after the effective date of the Act. (to include computed tomography scan
available on the Federal eRulemaking This interim final rule implements the (CT), or magnetic resonance imaging
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Portal at https://www.Regulations.gov. HAVANA Act of 2021. scan (MRI)), or electroencephalogram
Comments may also be submitted by The regulation herein applies only to (EEG); or a medical diagnosis of a
mail to: HAVANA Rule Comments, current and former employees of the traumatic brain injury (TBI) that
Attention: Anna Kelley, Rooms 1844– Department, and dependents of current required active medical treatment for 12
1846, 1401 Constitution Avenue NW, or former employees, as defined in § 3.2 months or more; or acute onset of new
Washington, DC 20230. Any questions of this rule. persistent, disabling neurologic
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