Federal Register / Vol. 86, No. 20 / Tuesday, February 2, 2021 / Rules and Regulations 7811 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

Executive Order 13771 directs agencies 

to control regulatory costs through a 

budgeting process. This rule has not 

been designated a ‘‘significant 

regulatory action,’’ under Executive 

Order 12866. Accordingly, this rule has 

not been reviewed by the Office of 

Management and Budget (OMB), and 

pursuant to OMB guidance it is exempt 

from the requirements of Executive 

Order 13771. 

This regulatory action determination 

is based on the rule not adding any new 

navigational restrictions, rather the rule 

will remove existing navigational 

restrictions to Sparkman Channel. 

B. Impact on Small Entities 

The Regulatory Flexibility Act of 

1980, 5 U.S.C. 601–612, as amended, 

requires Federal agencies to consider 

the potential impact of regulations on 

small entities during rulemaking. The 

term ‘‘small entities’’ comprises small 

businesses, not-for-profit organizations 

that are independently owned and 

operated and are not dominant in their 

fields, and governmental jurisdictions 

with populations of less than 50,000. 

The Coast Guard received no comments 

from the Small Business Administration 

on this rulemaking. The Coast Guard 

certifies under 5 U.S.C. 605(b) that this 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

While some owners or operators of 

vessels intending to transit Sparkman 

Channel may be small entities, for the 

reasons stated in section V.A above, this 

rule will not have a significant 

economic impact on any vessel owner 

or operator. 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we want to assist small entities in 

understanding this rule. If the rule 

would affect your small business, 

organization, or governmental 

jurisdiction and you have questions 

concerning its provisions or options for 

compliance, please call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 

1–888–REG–FAIR (1–888–734–3247). 

The Coast Guard will not retaliate 

against small entities that question or 

complain about this rule or any policy 

or action of the Coast Guard. 

C. Collection of Information 

This rule will not call for a new 

collection of information under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3520). 

D. Federalism and Indian Tribal 

Governments 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on the States, on the relationship 

between the National Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. We have 

analyzed this rule under that Order and 

have determined that it is consistent 

with the fundamental federalism 

principles and preemption requirements 

described in Executive Order 13132. 

Also, this rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

E. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

F. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Directive 023–01, Rev. 1, associated 

implementing instructions, and 

Environmental Planning COMDTINST 

5090.1 (series), which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f), and have 

determined that this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves 

removing existing regulations 

established in 33 CFR 165.752. It is 

categorically excluded from further 

review under paragraph L60(b) of 

Appendix A, Table 1 of DHS Instruction 

Manual 023–01–001–01, Rev. 1. A 

Memorandum for Record supporting 

this determination is available in the 

docket. For instructions on locating the 

docket, see the ADDRESSES section of 

this preamble. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places or vessels. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine Safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 46 U.S.C. 70034; 33 CFR 1.01– 

1, 6.04–1, and 160.5; Department of 

Homeland Security Delegation No. 01070.1 

§ 165.752 [Removed] 

■ 2. Remove § 165.752 

Dated: January 21, 2021. 

Eric C. Jones, 

Rear Admiral, U.S. Coast Guard, Commander, 

Seventh Coast Guard District. 

[FR Doc. 2021–02103 Filed 2–1–21; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 36 and 42 

RIN 2900–AR08 

Federal Civil Penalties Inflation 

Adjustment Act Amendments 

AGENCY: Department of Veterans Affairs. 


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7812 Federal Register / Vol. 86, No. 20 / Tuesday, February 2, 2021 / Rules and Regulations 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is providing public notice 

of inflationary adjustments to the 

maximum civil monetary penalties 

assessed or enforced by VA, as 

implemented by the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015, for calendar 

year 2021. VA may impose civil 

monetary penalties for false loan 

guaranty certifications. Also, VA may 

impose civil monetary penalties for 

fraudulent claims or written statements 

made in connection with VA programs 

generally. The Federal Civil Penalties 

Inflation Adjustment Act of 1990, as 

amended by the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015, sets forth a formula that 

increases the maximum statutory 

amounts for civil monetary penalties 

and directs VA to give public notice of 

the new maximum amounts by 

regulation. 

DATES: This rule is effective February 2, 

2021. 

FOR FURTHER INFORMATION CONTACT: 

Stephanie Li, Chief, Regulations Team, 

Loan Guaranty Service, Department of 

Veterans Affairs, 810 Vermont Avenue 

NW, Washington, DC 20420, (202) 632– 

8862. (This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: On 

November 2, 2015, the President signed 

into law the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015 (2015 Act) (Pub. L. 114–74, 

sec. 701, 129 Stat. 599), which amended 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990 (Pub. L. 101– 

410, 104 Stat. 890), to improve the 

effectiveness of civil monetary penalties 

and to maintain their deterrent effect. 

The 2015 Act was codified in a note 

following 28 U.S.C. 2461. The 2015 Act 

requires agencies to publish annual 

adjustments for inflation, based on the 

percent change between the Consumer 

Price Index (defined in the Act as the 

Consumer Price Index for all-urban 

consumers (CPI–U) published by the 

Department of Labor) for the month of 

October preceding the date of the 

adjustment and the prior year’s October 

CPI–U. 28 U.S.C. 2461 note, secs. 4(a) 

and (b) and 5(b)(1). This rule 

implements the 2021 calendar year 

inflation adjustment amounts. 

Under 38 U.S.C. 3710(g)(4)(B), VA is 

authorized to levy civil monetary 

penalties against private lenders that 

originate VA-guaranteed loans if a 

lender falsely certifies that they have 

complied with certain credit 

information and loan processing 

standards, as set forth by chapter 37, 

title 38 U.S.C. and part 36, title 38 CFR. 

Under section 3710(g)(4)(B), any lender 

who knowingly and willfully makes 

such a false certification shall be liable 

to the United States Government for a 

civil penalty equal to two times the 

amount of the Secretary’s loss on the 

loan involved or to another appropriate 

amount, not to exceed $10,000, 

whichever is greater. VA implemented 

the penalty amount in 38 CFR 

36.4340(k)(1)(i) and (k)(3). On December 

23, 2020, OMB issued Circular M–21– 

10. This circular reflects that the 

October 2019 CPI–U was 257.346 and 

the October 2020 CPI–U was 260.388, 

resulting in an inflation adjustment 

multiplier of 1.01182. Accordingly, the 

calendar year 2021 inflation revision 

imposes an adjustment from $23,331 to 

$23,607. 

Under 31 U.S.C. 3802, VA can impose 

monetary penalties against any person 

who makes, presents, or submits a claim 

or written statement to VA that the 

person knows or has reason to know is 

false, fictitious, or fraudulent, or who 

engages in other covered conduct. The 

statute permits, in addition to any other 

remedy that may be prescribed by law, 

a civil penalty of not more than $5,000 

for each claim. 31 U.S.C. 3802(a)(1) and 

(2). VA implemented the penalty 

amount in 38 CFR 42.3(a)(1) and (b)(1). 

As previously noted, Circular M–21–10 

reflects an inflation adjustment 

multiplier of 1.01182. Therefore, the 

calendar year 2021 inflation revision 

imposes an adjustment from $11,665 to 

$11,803. 

Accordingly, VA is revising 38 CFR 

36.4340(k)(1)(i) and (3) and 38 CFR 

42.3(a)(1) and (b)(1) to reflect the 2021 

inflationary adjustments for civil 

monetary penalties assessed or enforced 

by VA. 

Administrative Procedure Act 

The Secretary of Veterans Affairs 

finds that there is good cause under 5 

U.S.C. 553(b)(B) and (d)(3) to dispense 

with the opportunity for prior notice 

and public comment and to publish this 

rule with an immediate effective date. 

The 2015 Act requires agencies to make 

annual adjustments for inflation to the 

allowed amounts of civil monetary 

penalties ‘‘notwithstanding section 553 

of title 5, United States Code.’’ 28 U.S.C. 

2461 note, sec. 4(a) and (b). The penalty 

adjustments, and the methodology used 

to determine the adjustments, are set by 

the terms of the 2015 Act. VA has no 

discretion to make changes in those 

areas. Therefore, an opportunity for 

prior notice and public comment and a 

delayed effective date is unnecessary. 

Executive Orders 12866 and 13563 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, when regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. The Office of 

Information and Regulatory Affairs has 

determined that this rule is not a 

significant regulatory action under 

Executive Order 12866. VA’s impact 

analysis can be found as a supporting 

document at http://

www.regulations.gov, usually within 48 

hours after the rulemaking document is 

published. Additionally, a copy of the 

rulemaking and its impact analysis are 

available on VA’s website at http://

www.va.gov/orpm/, by following the 

link for ‘‘VA Regulations Published 

From FY 2004 Through Fiscal Year to 

Date.’’ 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This final rule will have no 

such effect on State, local, and Tribal 

governments, or on the private sector. 

Paperwork Reduction Act 

This final rule contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. (RFA), imposes 

certain requirements on Federal agency 

rules that are subject to the notice and 

comment requirements of the 

Administrative Procedure Act (APA), 5 

U.S.C. 553(b). This final rule is exempt 

from the notice and comment 

requirements of the APA because the 

2015 Act directed the Department to 

issue the annual adjustments without 

regard to section 553 of the APA. 

Therefore, the requirements of the RFA 

applicable to notice and comment 

rulemaking do not apply to this rule. 


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Federal Register / Vol. 86, No. 20 / Tuesday, February 2, 2021 / Rules and Regulations 7813 

Accordingly, the Department is not 

required either to certify that the final 

rule would not have a significant 

economic impact on a substantial 

number of small entities or to conduct 

a regulatory flexibility analysis. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance number and title for the 

program affected by this document is 

64.114, Veterans Housing Guaranteed 

and Insured Loans. 

Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this rule as not a major rule, 

as defined by 5 U.S.C. 804(2). 

List of Subjects 

38 CFR Part 36 

Condominiums, Housing, Individuals 

with disabilities, Loan programs— 

housing and community development, 

Loan programs—veterans, Manufactured 

homes, Mortgage insurance, Reporting 

and recordkeeping requirements, 

Veterans. 

38 CFR Part 42 

Administrative practice and 

procedure, Claims, Fraud, Penalties. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. 

Brooks D. Tucker, Assistant Secretary 

for Congressional and Legislative 

Affairs, Performing the Delegable Duties 

of the Chief of Staff, Department of 

Veterans Affairs, approved this 

document on January 14, 2021, for 

publication. 

Luvenia Potts, 

Regulations Development Coordinator, Office 

of Regulation Policy & Management, Office 

of the Secretary, Department of Veterans 

Affairs. 

Editorial note: This document was 

received for publication by the Office of the 

Federal Register on January 15, 2021. 

For the reasons stated in the 

preamble, the Department of Veterans 

Affairs amends 38 CFR parts 36 and 42 

as set forth below: 

PART 36—LOAN GUARANTY 

■ 1. The authority citation for part 36 

continues to read as follows: 

Authority: 38 U.S.C. 501 and 3720. 

§ 36.4340 [Amended] 

■ 2. In § 36.4340, amend paragraphs 

(k)(1)(i) introductory text and (k)(3) by 

removing ‘‘$23,331’’ and adding in its 

place ‘‘$23,607’’. 

PART 42—STANDARDS 

IMPLEMENTING THE PROGRAM 

FRAUD CIVIL REMEDIES ACT 

■ 3. The authority citation for part 42 

continues to read as follows: 

Authority: Pub. L. 99–509, secs. 6101– 

6104, 100 Stat. 1874, codified at 31 U.S.C. 

3801–3812. 

§ 42.3 [Amended] 

■ 4. In § 42.3, amend paragraphs 

(a)(1)(iv) and (b)(1)(ii) by removing 

‘‘$11,665’’ and adding in its place 

‘‘$11,803’’. 

[FR Doc. 2021–01335 Filed 2–1–21; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 423 

[CMS–4189–F2] 

RIN 0938–AT94 

Medicare Program; Secure Electronic 

Prior Authorization for Medicare Part D 

Program; Delay in Effective Date 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), Department 

of Health and Human Services (HHS). 

ACTION: Final rule; delay in effective 

date. 

SUMMARY: In accordance with the 

memorandum of January 20, 2021 from 

the Assistant to the President and the 

Chief of Staff, entitled ‘‘Regulatory 

Review,’’ this action temporarily delays 

for 60 days the effective date of the 

December 31, 2020 final rule entitled, 

‘‘Medicare Program; Secure Electronic 

Prior Authorization For Medicare Part 

D’’, which published on December 31, 

2020. 

DATES: The effective date of the final 

rule amending 42 CFR part 423 

published at 85 FR 86824 on December 

31, 2020, is delayed from February 1, 

2021, to March 30, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Joella Roland, (410) 786–7638. 

SUPPLEMENTARY INFORMATION: 

Background and Provisions of the Final 

Rule 

The January 20, 2021 memorandum 

from the Assistant to the President and 

Chief of Staff, entitled ‘‘Regulatory 

Freeze Pending Review,’’ instructed 

Federal agencies to delay the effective 

date of rules published in the Federal 

Register, but which have not yet taken 

effect, for a period of 60 days from the 

date of the memorandum. 

The purpose of the final rule is to 

adopt a new standard for certain 

transactions concerning Part D-covered 

drugs prescribed to Part D-eligible 

individuals under the Part D eprescribing program. Under this final 

rule, Part D plan sponsors will be 

required to support version 2017071 of 

the National Council for Prescription 

Drug Programs (NCPDP) SCRIPT 

standard for four electronic Prior 

Authorization (ePA) transactions, and 

prescribers will be required to use that 

standard when performing ePA 

transactions for Part D-covered drugs 

they wish to prescribe to Part D-eligible 

individuals. Part D plans, as defined in 

42 CFR 423.4, include Prescription Drug 

Plans (PDPs) and Medicare Advantage 

Prescription Drug Plans (MA–PDs); Part 

D sponsor, as defined in 42 CFR 423.4, 

means the entity sponsoring a Part D 

plan, MA organization offering a MA– 

PD plan, a Programs of All-Inclusive 

Care for the Elderly (PACE) organization 

sponsoring a PACE plan offering 

qualified prescription drug coverage, 

and a cost plan offering qualified 

prescription drug coverage. The ePA 

transaction standard will provide for the 

electronic transmission of information 

between the prescribing health care 

professional and Part D plan sponsor to 

inform the sponsor’s determination as to 

whether or not a prior authorization 

(PA) should be granted. The NCPDP 

SCRIPT standard version 2017071 was 

adopted as a Part D e-prescribing 

program standard for certain defined 

transactions in the April 16, 2018 final 

rule (83 FR 16440) titled Medicare 

Program; Contract Year 2019 Policy and 

Technical Changes to the Medicare 

Advantage, Medicare Cost Plan, 

Medicare Fee-for-Service, the Medicare 

Prescription Drug Benefit Programs, and 

the PACE Program that became effective 

June 15, 2018. 

The effective date of that rule, which 

would have been February 1, 2021, is 

now effective on March 30, 2021. 

The temporary delay in the effective 

date of this final rule is necessary to 

give Department officials the 

opportunity for further review and 

consideration of new regulations, 

consistent with the memorandum of 


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