[Federal Register Volume 83, Number 10 (Tuesday, January 16, 2018)]
[Rules and Regulations]
[Pages 2062-2065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00614]


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DEPARTMENT OF EDUCATION

34 CFR Parts 36 and 668

[Docket ID ED-2018-OGC-0004]
RIN 1801-AA17


Adjustment of Civil Monetary Penalties for Inflation

AGENCY: Department of Education.

ACTION: Final regulations.

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SUMMARY: The Department of Education (Department) issues these final 
regulations to adjust the Department's civil monetary penalties (CMPs) 
for inflation. An initial ``catch-up'' adjustment was required by the 
Federal Civil Penalties Inflation Adjustment Act Improvements Act of 
2015 (2015 Act), which amended the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Inflation Adjustment Act). These final 
regulations provide the 2018 annual inflation adjustments being made to 
the penalty amounts in the Department's final regulations published in 
the Federal Register on April 20, 2017 (2017 final rule).

DATES: These regulations are effective January 15, 2018. The adjusted 
CMPs established by these regulations are applicable only to civil 
penalties assessed after January 15, 2018, whose associated violations 
occurred after November 2, 2015.

FOR FURTHER INFORMATION CONTACT: Levon Schlichter, U.S. Department of 
Education, Office of the General Counsel, 400 Maryland Avenue SW, Room 
6E235, Washington, DC 20202-2241. Telephone: (202) 453-6387 or by 
email: <a href="/cdn-cgi/l/email-protection#cea2abb8a1a0e0bdada6a2a7ada6baabbc8eabaae0a9a1b8"><span class="__cf_email__" data-cfemail="ec80899a8382c29f8f8480858f8498899eac8988c28b839a">[email protected]</span></a>.
    If you use a telecommunications device for the deaf or a text 
telephone, call the Federal Relay Service, toll free, at 1-800-877-
8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or compact 
disc) on request to the contact person listed in this section.

SUPPLEMENTARY INFORMATION:

Background

    A CMP is defined in the Inflation Adjustment Act (28 U.S.C. 2461 
note) as any penalty, fine, or other sanction that is (1) for a 
specific monetary amount as provided by Federal law, or has a maximum 
amount provided for by Federal law; (2) assessed or enforced by an 
agency pursuant to Federal law; and (3) assessed or enforced pursuant 
to an administrative proceeding or a civil action in the Federal 
courts.
    The Inflation Adjustment Act provides for the regular evaluation of 
CMPs to ensure that they continue to maintain their deterrent value. 
The Inflation Adjustment Act required that each agency issue 
regulations to adjust its CMPs beginning in 1996 and at least every 
four years thereafter. The Department published its most recent cost 
adjustment to its CMPs in the Federal Register on April 20, 2017 (82 FR 
18559), and those adjustments became effective on the date of 
publication.
    The 2015 Act (section 701 of Pub. Law 114-74) amended the Inflation 
Adjustment Act to improve the effectiveness of CMPs and to maintain 
their deterrent effect.
    The 2015 Act requires agencies to: (1) Adjust the level of CMPs 
with an initial ``catch-up'' adjustment through an interim final rule 
(IFR); and (2) make subsequent annual adjustments for inflation. Catch-
up adjustments are based on the percentage change between the Consumer 
Price Index for all Urban Consumers (CPI-U) for the month of October in 
the year the penalty was last adjusted by a statute other than the 
Inflation Adjustment Act, and the October 2015 CPI-U. Annual inflation 
adjustments are based on the percentage change between the October CPI-
U preceding the date of each statutory adjustment, and the prior year's 
October CPI-U.\1\ The Department published an IFR with the initial 
``catch-up'' penalty adjustment amounts on August 1, 2016 (81 FR 
50321).
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    \1\ If a statute that created a penalty is amended to change the 
penalty amount, the Department does not adjust the penalty in the 
year following the adjustment.
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    In these final regulations, based on the CPI-U for the month of 
October 2017, not seasonally adjusted, we are annually adjusting each 
CMP amount by a multiplier for 2018 of 1.02041, as directed by the 
Office of Management and Budget (OMB) Memorandum No. M-18-03 issued on 
December 15, 2017.

The Department's Civil Monetary Penalties

    The following analysis calculates new CMPs for penalty statutes in 
the order in which they appear in 34 CFR 36.2. The penalty amounts are 
being adjusted up based on the multiplier of 1.02041 provided in OMB 
Memorandum No. M-18-03.
    Statute: 20 U.S.C. 1015(c)(5).
    Current Regulations: The CMP for 20 U.S.C. 1015(c)(5) (Section 
131(c)(5) of the Higher Education Act of 1965, as amended (HEA)), as 
last set out in statute in 1998 (Pub. Law 105-244, title I, Sec.  
101(a), October 7, 1998, 112 Stat. 1602), is a fine of up to $25,000 
for failure by an institution of higher education (IHE) to provide 
information on the cost of higher education to the Commissioner of 
Education Statistics. In the 2017 final rule, we increased this amount 
to $36,849.
    New Regulations: The new penalty for this section is $37,601.
    Reason: Using the multiplier of 1.02041 from OMB Memorandum No. M-
18-03, the new penalty is calculated as follows: $36,849 x 1.02041 = 
$37,601.09, which makes the adjusted penalty $37,601, when rounded to 
the nearest dollar.

[[Page 2063]]

    Statute: 20 U.S.C. 1022d(a)(3).
    Current Regulations: The CMP for 20 U.S.C. 1022d(a)(3) (Section 
205(a)(3) of the HEA), as last set out in statute in 2008 (Pub. Law 
110-315, title II, Sec.  201(2), August 14, 2008, 122 Stat. 3147), 
provides for a fine of up to $27,500 for failure by an IHE to provide 
information to the State and the public regarding its teacher-
preparation programs. In the 2017 final rule, we increased this amount 
to $30,694.
    New Regulations: The new penalty for this section is $31,320.
    Reason: Using the multiplier of 1.02041 from OMB Memorandum No. M-
18-03, the new penalty is calculated as follows: $30,694 x 1.02041 = 
$31,320.46, which makes the adjusted penalty $31,320, when rounded to 
the nearest dollar.
    Statute: 20 U.S.C. 1082(g).
    Current Regulations: The CMP for 20 U.S.C. 1082(g) (Section 432(g) 
of the HEA), as last set out in statute in 1986 (Pub. Law 99-498, title 
IV, Sec.  402(a), October 17, 1986, 100 Stat. 1401), provides for a 
fine of up to $25,000 for violations by lenders and guaranty agencies 
of Title IV of the HEA, which authorizes the Federal Family Education 
Loan Program. In the 2017 final rule, we increased this amount to 
$54,789.
    New Regulations: The new penalty for this section is $55,907.
    Reason: Using the multiplier of 1.02041 from OMB Memorandum No. M-
18-03, the new penalty is calculated as follows: $54,789 x 1.02041 = 
$55,907.24, which makes the adjusted penalty $55,907, when rounded to 
the nearest dollar.
    Statute: 20 U.S.C. 1094(c)(3)(B).
    Current Regulations: The CMP for 20 U.S.C. 1094(c)(3)(B) (Section 
487(c)(3)(B) of the HEA), as set out in statute in 1986 (Pub. Law 99-
498, title IV, Sec.  407(a), October 17, 1986, 100 Stat. 1488), 
provides for a fine of up to $25,000 for an IHE's violation of Title IV 
of the HEA or its implementing regulations. Title IV authorizes various 
programs of student financial assistance. In the 2017 final rule, we 
increased this amount to $54,789.
    New Regulations: The new penalty for this section is $55,907.
    Reason: Using the multiplier of 1.02041 from OMB Memorandum No. M-
18-03, the new penalty is calculated as follows: $54,789 x 1.02041 = 
$55,907.24, which makes the adjusted penalty $55,907, when rounded to 
the nearest dollar.
    Statute: 20 U.S.C. 1228c(c)(2)(E).
    Current Regulations: The CMP for 20 U.S.C. 1228c(c)(2)(E) (Section 
429 of the General Education Provisions Act), as set out in statute in 
1994 (Pub. Law 103-382, title II, Sec.  238, October 20, 1994, 108 
Stat. 3918), provides for a fine of up to $1,000 for an educational 
organization's failure to disclose certain information to minor 
students and their parents. In the 2017 final rule, we increased this 
amount to $1,617.
    New Regulations: The new penalty for this section is $1,650.
    Reason: Using the multiplier of 1.02041 from OMB Memorandum No. M-
18-03, the new penalty is calculated as follows: $1,617 x 1.02041 = 
$1,650.00, which makes the adjusted penalty $1,650, when rounded to the 
nearest dollar.
    Statute: 31 U.S.C. 1352(c)(1) and (c)(2)(A).
    Current Regulations: The CMPs for 31 U.S.C. 1352(c)(1) and 
(c)(2)(A), as set out in statute in 1989, provide for a fine of $10,000 
to $100,000 for recipients of Government grants, contracts, etc. that 
improperly lobby Congress or the Executive Branch with respect to the 
award of Government grants and contracts. In the 2017 final rule, we 
increased these amounts to $19,246 to $192,459.
    New Regulations: The new penalties for these sections are $19,639 
to $196,387.
    Reason: Using the multiplier of 1.02041 from OMB Memorandum No. M-
18-03, the new minimum penalty is calculated as follows: $19,246 x 
1.02041 = $19,638.81, which makes the adjusted penalty $19,639, when 
rounded to the nearest dollar. The new maximum penalty is calculated as 
follows: $192,459 x 1.02041 = $196,387.09, which makes the adjusted 
penalty $196,387, when rounded to the nearest dollar.
    Statute: 31 U.S.C. 3802(a)(1) and (a)(2).
    Current Regulations: The CMPs for 31 U.S.C. 3802(a)(1) and (a)(2), 
as set out in statute in 1986 (Pub. Law 99-509, title VI, Sec.  
6103(a), Oct. 21, 1986, 100 Stat. 1937), provide for a fine of up to 
$5,000 for false claims and statements made to the Government. In the 
2017 final rule, we increased this amount to $10,957.
    New Regulations: The new penalty for this section is $11,181.
    Reason: Using the multiplier of 1.02041 from OMB Memorandum No. M-
18-03, the new penalty is calculated as follows: $10,957 x 1.02041 = 
$11,180.63, which makes the adjusted penalty $11,181, when rounded to 
the nearest dollar.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and subject to review by OMB. 
Section 3(f) of Executive Order 12866 defines a significant regulatory 
action as an action likely to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy; productivity; competition; 
jobs; the environment; public health or safety; or State, local, or 
Tribal governments or communities in a material way (also referred to 
as ``economically significant'' regulations);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    We have determined that these final regulations: (1) Exclusively 
implement the annual adjustment; (2) are consistent with OMB Memorandum 
No. M-18-03; and (3) have an annual impact of less than $100 million. 
Therefore, based on OMB Memorandum No. M-18-03, this is not a 
significant regulatory action subject to review by OMB under section 
3(f) of Executive Order 12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account, among other things, and to the extent practicable, the costs 
of cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and

[[Page 2064]]

    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or providing 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations as required by statute and 
in accordance with OMB Memorandum No. M-18-03. The Secretary has no 
discretion to consider alternative approaches as delineated in the 
Executive order. Based on this analysis and the reasons stated in the 
preamble, the Department believes that these final regulations are 
consistent with the principles in Executive Order 13563.
    Under Executive Order 13771, if the Department proposes for notice 
and comment or otherwise promulgates a new regulation that is a 
significant regulatory action under Executive Order 12866 and that 
imposes total costs greater than zero, it must identify two existing 
regulations for elimination. For fiscal year 2018, any new incremental 
costs associated with the new regulation must be fully offset by the 
elimination of existing costs through the repeal of at least two 
regulations. These final regulations are not a significant regulatory 
action. Therefore, the requirements of Executive Order 13771 do not 
apply.

Waiver of Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations. However, section 4(b)(2) of the 2015 
Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 
2018 penalty amounts notwithstanding section 553 of title 5, United 
States Code. Therefore, the requirements of 5 U.S.C. 553 for notice and 
comment and delaying the effective date of a final rule do not apply 
here.

Regulatory Flexibility Act Certification

    The Secretary certifies that these regulations will not have a 
significant economic impact on a substantial number of small entities. 
The formula for the amount of the inflation adjustments is prescribed 
by statute and is not subject to the Secretary's discretion. These CMPs 
are infrequently imposed by the Secretary, and the regulations do not 
involve any special considerations that might affect the imposition of 
CMPs on small entities.

Paperwork Reduction Act of 1995

    These regulations do not contain any information collection 
requirements.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Assessment of Educational Impact

    Based on our own review, we have determined that these regulations 
do not require transmission of information that any other agency or 
authority of the United States gathers or makes available.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Portable Document Format (PDF). To use PDF you 
must have Adobe Acrobat Reader, which is available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects in 34 CFR Part 36

    Claims, Fraud, Penalties.

    Dated: January 10, 2018.
Betsy DeVos,
Secretary of Education.
    For the reasons discussed in the preamble, the Secretary amends 
parts 36 and 668 of title 34 of the Code of Federal Regulations as 
follows:

PART 36--ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION

0
 1. The authority citation for part 36 continues to read as follows:

    Authority: 20 U.S.C. 1221e-3 and 3474; 28 U.S.C. 2461 note, as 
amended by section 701 of Pub. Law 114-74, unless otherwise noted.

0
 2. Section 36.2 is amended by revising Table I to read as follows:


Sec.  36.2   Penalty adjustment.

* * * * *

                      Table I--Section 36.2.--Civil Monetary Penalty Inflation Adjustments
----------------------------------------------------------------------------------------------------------------
                                                                               New maximum (and minimum, if
                Statute                            Description                  applicable) penalty amount
----------------------------------------------------------------------------------------------------------------
20 U.S.C. 1015(c)(5) (Section 131(c)(5)  Provides for a fine, as set by   $37,601.
 of the Higher Education Act of 1965      Congress in 1998, of up to
 (HEA)).                                  $25,000 for failure by an
                                          institution of higher
                                          education (IHE) to provide
                                          information on the cost of
                                          higher education to the
                                          Commissioner of Education
                                          Statistics.
20 U.S.C. 1022d(a)(3) (Section           Provides for a fine, as set by   $31,320.
 205(a)(3) of the HEA).                   Congress in 2008, of up to
                                          $27,500 for failure by an IHE
                                          to provide information to the
                                          State and the public regarding
                                          its teacher-preparation
                                          programs.
20 U.S.C. 1082(g) (Section 432(g) of     Provides for a civil penalty,    $55,907.
 the HEA).                                as set by Congress in 1986, of
                                          up to $25,000 for violations
                                          by lenders and guaranty
                                          agencies of Title IV of the
                                          HEA, which authorizes the
                                          Federal Family Education Loan
                                          Program.
20 U.S.C. 1094(c)(3)(B) (Section         Provides for a civil penalty,    $55,907.
 487(c)(3)(B) of the HEA).                as set by Congress in 1986, of
                                          up to $25,000 for an IHE's
                                          violation of Title IV of the
                                          HEA, which authorizes various
                                          programs of student financial
                                          assistance.

[[Page 2065]]

 
20 U.S.C. 1228c(c)(2)(E) (Section 429    Provides for a civil penalty,    $1,650.
 of the General Education Provisions      as set by Congress in 1994, of
 Act).                                    up to $1,000 for an
                                          educational organization's
                                          failure to disclose certain
                                          information to minor students
                                          and their parents.
31 U.S.C. 1352(c)(1) and (c)(2)(A).....  Provides for a civil penalty,    $19,639 to $196,387.
                                          as set by Congress in 1989, of
                                          $10,000 to $100,000 for
                                          recipients of Government
                                          grants, contracts, etc. that
                                          improperly lobby Congress or
                                          the Executive Branch with
                                          respect to the award of
                                          Government grants and
                                          contracts.
31 U.S.C. 3802(a)(1) and (a)(2)........  Provides for a civil penalty,    $11,181.
                                          as set by Congress in 1986, of
                                          up to $5,000 for false claims
                                          and statements made to the
                                          Government.
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS

0
 3. The authority citation for part 668 continues to read as follows:

    Authority:  20 U.S.C. 1001-1003, 1070a, 1070g, 1085, 1087b, 
1087d, 1087e, 1088, 1091, 1092, 1094, 1099c, and 1099c-1, 1221e-3, 
and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.


Sec.  668.84  [Amended]

0
4. Section 668.84 is amended by, in paragraph (a), removing the number 
``$27,500'' and adding, in its place, the number ``$55,907''.

[FR Doc. 2018-00614 Filed 1-12-18; 8:45 am]
 BILLING CODE 4000-01-P


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