28440 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

DEPARTMENT OF JUSTICE

Office of Justice Programs

Office of Juvenile Justice and

Delinquency Prevention

28 CFR Part 31

[OJP No. 1000F]

RIN 1121–AA28

Formula Grants

May 22, 1995.

AGENCY: Office of Justice Programs,

Office of Juvenile Justice and

Delinquency Prevention, Justice.

ACTION: Republication.

SUMMARY: This document is published

to consolidate the Formula Grants

Regulation for ease of use by grantees.

This document reflects the

consolidation of the revisions to the

Formula Grants Regulation published in

the Federal Register on March 10, 1995

and corrections published on April 21,

1995.

EFFECTIVE DATE: The final regulation

became effective on March 10, 1995.

FOR FURTHER INFORMATION CONTACT:

Roberta Dorn, Director, State Relations

and Assistance Division, Office of

Juvenile Justice and Delinquency

Prevention, 633 Indiana Avenue, NW.,

Room 543, Washington, DC 20531; (202)

307–5924.

SUPPLEMENTARY INFORMATION: This

document contains the entire text of the

Formula Grants Regulation, 28 CFR Part

31, including recently made changes

and corrections. On March 10, 1995, the

Office of Juvenile Justice and

Delinquency Prevention (OJJDP)

published in the Federal Register the

final Formula Grants Regulation

revising 28 CFR part 31. The regulation

revisions provided clarification and

guidance to States in the formulation,

submission and implementation of the

State Formula Grants Program under

Part B of Title II of the Juvenile Justice

and Delinquency Prevention Act of

1974, as amended by the Juvenile

Justice and Delinquency Prevention

Amendments of 1992 (Pub. L. 102–586,

November 18, 1992). On April 21, 1995

(60 FR 19847), OJJDP published in the

Federal Register corrections to the final

Regulation because the Final

Regulation, as published on March 10,

1995 (60 FR 13330), was an earlier draft

version that was materially different

from the final draft that was intended to

be published.

The major changes to the Final

Regulation made in the March 10, 1995

revision and subsequent April 21, 1995

correction implemented the 1992

reauthorization statutory amendments

that impact the Formula Grants

Program. These statutory changes

include: a formula grant fund allocation

minimum base for participating States

and territories; elimination of the

‘‘substantial compliance criteria’’ with

respect to the deinstitutionalization of

status offenders and jail and lockup

removal requirements because full

compliance is required; a requirement

that there be separate juvenile and adult

staff with respect to management,

security and direct care in juvenile

detention facilities that are collocated

with an adult jail or lockup. The final

Regulation includes the requirement

that collocated juvenile detention

facilities approved by the State and

concurred with by OJJDP on or before

June 30, 1995, be reviewed against the

regulatory criteria and OJJDP policies in

effect at the time of the initial approval

and concurrence. Facilities approved

after the effective date of the Regulation

and prior to July 1, 1995, will be

reviewed against the regulatory criteria

in effect on the day before the effective

date of the Regulation. For collocated

juvenile detention facilities considered

after June 30, 1995, OJJDP’s concurrence

is limited to one year and, thereafter,

will be reviewed on an annual basis.

The Regulation eliminated the

requirement that in order for a

collocated juvenile detention facility to

receive OJJDP’s initial and subsequent

concurrences, the facility could only

provide secure custody for juvenile

criminal-type offenders, status offenders

accused of violating a valid court order,

and adjudicated delinquents and valid

court order violators who are awaiting

disposition hearings or transfer to a long

term juvenile correctional facility.

Executive Order 12866

This final regulation in not a

‘‘significant regulatory action’’ for

purposes of Executive Order 12866

because it does not result in: (1) an

annual effect on the economy of $100

million or more or adversely affect in a

material way the economy, a sector of

the economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local or tribal

governments or communities; (2) create

a serious inconsistency or otherwise

interfere with action taken or planned

by another agency; (3) materially alter

the budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients

thereof; and (4) does not raise novel

legal or policy issues arising out of legal

mandates, the President’s priorities or

the principles of Executive Order 12866.

Regulatory Flexibility Act

This final regulation, does not have a

‘‘significant’’ economic impact on a

substantial number of small ‘‘entities’’,

as defined by the Regulatory Flexibility

Act (Pub. L. 96–354).

Paperwork Reduction Act

No collection of information

requirements are contained in or

effected by this regulation (See the

Paperwork Reduction Act, 44 U.S.C.

3504(h)).

Intergovernmental Review of Federal

Programs

In accordance with Executive Order

12372 and the Department of Justice’s

implementing regulation 28 CFR Part

31, States must submit formula grant

applications to the State ‘‘Single Point

of Contact,’’ if one exists. The State may

take up to 60 days from the application

date to comment on the application.

List of Subjects in 28 CFR Part 31

Grant programs—law, Juvenile

delinquency, Reporting and

recordkeeping r equirements.

For the reasons set out in the

preamble, Title 28, Chapter I, Part 31 of

the Code of Federal Regulations is

republished for the convenience of the

reader as follows:

PART 31–FORMULA GRANTS

Subpart A—General Provisions

Sec.

31.1 General.

31.2 Statutory authority.

31.3 Formula Grant Plan and Applications.

Subpart B—Eligible Applicants

31.100 Eligibility.

31.101 Designation of State Agency.

31.102 State agency structure.

31.103 Membership of supervisory board.

Subpart C—General Requirements

31.200 General.

31.201 Audit.

31.202 Civil rights.

31.203 Open meetings and public access to

records.

Subpart D—Juvenile Justice Act

Requirements

31.300 General.

31.301 Funding.

31.302 Applicant State agency.

31.303 Substantive requirements.

31.304 Definitions.

Subpart E—General Conditions and

Assurances

31.400 Compliance with statute.

31.401 Compliance with other Federal laws,

orders, circulars.

31.402 Application on file.

31.403 Civil rights requirements.

Authority: 42 U.S.C. 5601 et seq.
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28441

Subpart A—General Provisions

§ 31.1 General.

This part defines eligibility and sets

forth requirements for application for

and administration of formula grants to

State governments authorized by part B,

subpart I, of the Juvenile Justice and

Delinquency Prevention Act.

§ 31.2 Statutory authority.

The Statute establishing the Office of

Juvenile Justice and Delinquency

Prevention and giving authority to make

grants for juvenile justice and

delinquency prevention improvement

programs is the Juvenile Justice and

Delinquency Prevention Act of 1974, as

amended (42 U.S.C. 5601 et seq.).

§ 31.3 Formula grant plan and applications

Formula Grant Applications for each

Fiscal Year should be submitted to

OJJDP by August 1st (60 days prior to

the beginning of the fiscal year) or

within 60 days after the States are

officially notified of the fiscal year

formula grant allocations. Beginning

with FY 1995 and each subsequent

fiscal year, all Formula Grant

Applications are due no later than

March 31 of the fiscal year for which the

funds are allocated.

Subpart B—Eligible Applicants

§ 31.100 Eligibility.

All States as defined by section 103(7)

of the JJDP Act.

§ 31.101 Designation of State agency.

The Chief Executive of each State

which chooses to apply for a formula

grant shall establish or designate a State

agency as the sole agency for

supervising the preparation and

administration of the plan. The plan

must demonstrate compliance with

administrative and supervisory board

membership requirements established

by the OJJDP Administrator pursuant to

Section 299 (c) of the JJDP Act. States

must have available for review a copy of

the State law or executive order

establishing the State agency and its

authority.

§ 31.102 State agency structure.

The State agency may be a discrete

unit of State government or a division

or other component of an existing State

crime commission, planning agency or

other appropriate unit of State

government. Details of organization and

structure are matters of State discretion,

provided that the agency:

(a) Is a definable entity in the

executive branch with the requisite

authority to carry out the

responsibilities imposed by the JJDP

Act;

(b) Has a supervisory board (i.e., a

board of directors, commission,

committee, council, or other policy

board) which has responsibility for

supervising the preparation and

administration of the plan and its

implementation; and

(c) Has sufficient staff and staff

capability to carry out the board’s

policies and the agency’s duties and

responsibilities to administer the

program, develop the plan, process

applications, administer grants awarded

under the plan, monitor and evaluate

programs and projects, provide

administration/support services, and

perform such accountability functions

as are necessary to the administration of

Federal funds, such as grant close-out

and audit of subgrant and contract

funds. At a minimum, one full-time

Juvenile Justice Specialist must be

assigned to the Formula Grants Program

by the State agency. Where the State

does not currently provide or maintain

a full-time Juvenile Justice Specialist,

the plan must clearly establish and

document that the program and

administrative support staff resources

currently assigned to the program will

temporarily meet the adequate staff

requirement, and provide an assurance

that at least one full-time Juvenile

Justice Specialist will be assigned to the

Formula Grants Program by the end of

FY 1995 (September 30, 1995).

§ 31.103 Membership of supervisory

board.

The State advisory group appointed

under section 223(a)(3) may operate as

the supervisory board for the State

agency, at the discretion of the

Governor. Where, however, a State has

continuously maintained a broad-based

law enforcement and criminal justice

supervisory board (council) meeting all

the requirements of section 402(b)(2) of

the Justice System Improvement Act of

1979, and wishes to maintain such a

board, such composition shall continue

to be acceptable provided that the

board’s membership includes the

chairman and at least two additional

citizen members of the State advisory

group. For purposes of this requirement

a citizen member is defined as any

person who is not a full-time

government employee or elected

official. Any executive committee of

such a board must include the same

proportion of juvenile justice advisory

group members as are included in the

total board membership. Any other

proposed supervisory board

membership is subject to case by case

review and approval of the OJJDP

Administrator and will require, at a

minimum, ‘‘balanced representation’’ of

juvenile justice interests.

Subpart C—General Requirements

§ 31.200 General.

This subpart sets forth general

requirements applicable to formula

grant recipients under the JJDP Act of

1974, as amended. Applicants must

assure compliance or submit necessary

information on these requirements.

§ 31.201 Audit.

The State must assure that it adheres

to the audit requirements enumerated in

the ‘‘Financial and Administrative

Guide for Grants, Guide Manual 7100.1

(current edition). Chapter 8 of the

Manual contains a comprehensive

statement of audit policies and

requirements relative to grantees and

subgrantees.

§ 31.202 Civil rights.

(a) To carry out the State’s Federal

civil rights responsibilities the plan

must:

(1) Designate a civil rights contact

person who has lead responsibility in

insuring that all applicable civil rights

requirements, assurances, and

conditions are met and who shall act as

liaison in all civil rights matters with

OJJDP and the OJP Office of Civil Rights

Compliance (OCRC); and

(2) Provide the Council’s Equal

Employment Opportunity Program

(EEOP), if required to maintain one

under 28 CFR 42.301, et seq., where the

application is for $500,000 or more.

(b) The application must provide

assurance that the State will:

(1) Require that every applicant

required to formulate an EEOP in

accordance with 28 CFR 42.201 et seq.,

submit a certification to the State that it

has a current EEOP on file, which meets

the requirement therein;

(2) Require that every criminal or

juvenile justice agency applying for a

grant of $500,000 or more submit a copy

of its EEOP (if required to maintain one

under 28 CFR 42.301, et seq.) to OCRC

at the time it submits its application to

the State;

(3) Inform the public and subgrantees

of affected persons’ rights to file a

complaint of discrimination with OCRC

for investigation;

(4) Cooperate with OCRC during

compliance reviews of recipients

located within the State; and

(5) Comply, and that its subgrantees

and contractors will comply with the

requirement that, in the event that a

Federal or State court or administrative

agency makes a finding of
28442 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

discrimination of the basis of race,

color, religion, national origin, or sex

(after a due process hearing) against a

State or a subgrantee or contractor, the

affected recipient or contractor will

forward a copy of the finding to OCRC.

§ 31.203 Open meetings and public access

to records.

The State must assure that the State

agency, its supervisory board

established pursuant to section 299(c)

and the State advisory group established

pursuant to section 223(a)(3) will follow

applicable State open meeting and

public access laws and regulations in

the conduct of meetings and the

maintenance of records relating to their

functions.

Subpart D—Juvenile Justice Act

Requirements

§ 31.300 General.

This subpart sets forth specific JJDP

Act requirements for application and

receipt of formula grants.

§ 31.301 Funding.

(a) Allocation to States. Funds shall

be allocated annually among the States

on the basis of relative population of

persons under age eighteen. If the

amount allocated for Title II (other than

parts D and E) of the JJDP Act is less

than $75 million, the amount allocated

to each State will not be less than

$325,000, nor more than $400,000,

provided that no State receives less than

its allocation for FY 1992. The

territories will receive not less than

$75,000 or more than $100,000. If the

amount appropriated for Title II (other

than parts D and E) is $75 million or

more, the amount allocated for each

State will be not less than $400,000, nor

more than $600,000, provided that parts

D and E have been funded in the full

amounts authorized. For the Territories,

the amount is fixed at $100,000. For

each of FY’s 1994 and 1995, the

minimum allocation is established at

$600,000 for States and $100,000 for

Territories.

(b) Funds for Local Use. At least twothirds of the formula grant application

to the state (other than the section

222(d) State Advisory Group set aside)

must be used for programs by local

government, local private agencies, and

eligible Indian tribes, unless the State

applies for and is granted a waiver by

the OJJDP. The proportion of passthrough funds to be made available to

eligible Indian tribes shall be based

upon that proportion of the state youth

population under 18 years of age who

reside in geographical areas where the

tribes perform law enforcement

functions. Pursuant to section

223(a)(5)(C) of the JJDP Act, each of the

standards set forth in paragraphs

(b)(1)(i) through (111) of this section

must be met in order to establish the

eligibility of Indian tribes to receive

pass through funds:

(1) (i) The tribal entity must be

recognized by the Secretary of the

Interior as an Indian tribe that performs

law enforcement functions as defined in

paragraph (b) (2) of this section.

(ii) The tribal entity must agree to

attempt to comply with the

requirements of section 223(a)(12)(A),

(13), and (14) of the JJDP Act; and

(iii) The tribal entity must identify the

juvenile justice needs to be served by

these funds within the geographical area

where the tribe performs law

enforcement functions.

(2) ‘‘Law enforcement functions’’ are

deemed to include those activities

pertaining to the custody of children,

including, but not limited to, police

efforts to prevent, control, or reduce

crime and delinquency or to apprehend

criminal and delinquent offenders, and/

or activities of adult and juvenile

corrections, probation, or parole

authorities.

(3) To carry out this requirement,

OJJDP will annually provide each state

with the most recent Bureau of Census

statistics on the number of persons

under age 18 living within the state, and

the number of persons under age 18

who reside in geographical areas where

Indian tribes perform law enforcement

functions.

(4) Pass-through funds available to

tribal entities under section 223(a)(5)(C)

shall be made available within states to

Indian tribes, combinations of Indian

tribes, or to an organization or

organizations designated by such

tribe(s), that meet the standards set forth

in paragraphs (b)(1)(i)–(iii) of this

section. Where the relative number of

persons under age 18 within a

geographic area where an Indian tribe

performs law enforcement functions is

too small to warrant an individual

subgrant or subgrants, the state may,

after consultation with the eligible

tribe(s), make pass-through funds

available to a combination of eligible

tribes within the state, or to an

organization or organizations designated

by and representing a group of

qualifying tribes, or target the funds on

the larger tribal jurisdictions within the

state.

(5) Consistent with section 223(a)(4)

of the JJDP Act, the state must provide

for consultation with Indian tribes or a

combination of eligible tribes within the

state, or an organization or organizations

designated by qualifying tribes, in the

development of a state plan which

adequately takes into account the

juvenile justice needs and requests of

those Indian tribes within the state.

(c) Match. Formula grants under the

JJDP Act shall be 100% of approved

costs, with the exception of planning

and administration funds, which require

a 100 percent cash match (dollar for

dollar), and construction projects

funded under section 299C(a)(2) which

also require a 100 percent cash match.

(d) Funds for Administration. Not

more than ten percent of the total

annual Formula Grant award may be

utilized to develop the annual juvenile

justice plan and pay for administrative

expenses, including project monitoring.

These funds are to be matched on a

dollar for dollar basis. The State shall

make available needed funds for

planning and administration to units of

local government on an equitable basis.

Each annual application must identify

uses of such funds.

(e) Nonparticipating States. Pursuant

to section 223(d), the OJJDP

Administrator shall endeavor to make

the fund allotment under section 222(a),

of a State which chooses not to

participate or loses its eligibility to

participate in the formula grant

program, directly available to local

public and private nonprofit agencies

within the nonparticipating State. The

funds may be used only for the

purpose(s) of achieving

deinstitutionalization of status offenders

and nonoffenders, separation of

juveniles from incarcerated adults,

removal of juveniles from adult jails and

lockups, and reducing the

disproportionate confinement of

minority youth in secure facilities.

Absent a request for extension which

demonstrates compelling circumstances

justifying the reallocation of formula

grant funds back to the State to which

the funds were initially allocated, or the

proceedings under section 223(d),

formula grant funds allocated to a State

which has failed to submit an

application, plan, or monitoring data

establishing its eligibility for the funds

will, beginning with FY 1995 be

reallocated to the nonparticipating State

program on September 30 of the fiscal

year for which the funds were

appropriated. Reallocated funds will be

competitively awarded to eligible

recipients pursuant to program

announcements published in the

Federal Register.

§ 31.302 Applicant State agency.

(a) Pursuant to section 223(a)(1),

section 223(a)(2) and section 299(c) of

the JJDP Act, the State must assure that

the State agency approved under section

299(c) has been designated as the sole
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28443

agency for supervising the preparation

and administration of the plan and has

the authority to implement the plan.

(b) Advisory Group. Pursuant to

section 223(a)(3) of the JJDP Act, the

Chief Executive:

(1) Shall establish an advisory group

pursuant to section 223(a)(3) of the JJDP

Act. The State shall provide a list of all

current advisory group members,

indicating their respective dates of

appointment and how each member

meets the membership requirements

specified in this section of the Act.

(2) Should consider, in meeting the

statutory membership requirements of

section 223(A)(3) (A)–(E), appointing at

least one member who represents each

of the following: A locally elected

official representing general purpose

local government; a law enforcement

officer; representatives of juvenile

justice agencies, including a juvenile or

family court judge, a probation officer,

a prosecutor, and a person who

routinely provides legal representation

to youth in juvenile court; a public

agency representative concerned with

delinquency prevention and treatment;

a representative from a private, nonprofit organization, such as a parents

group, concerned with teenage drug and

alcohol abuse; a high school principal;

a recreation director; a volunteer who

works with delinquent or at risk youth;

a person with a special focus on the

family; a youth worker experienced

with programs that offer alternatives to

incarceration; persons with special

competence in addressing programs of

school violence and vandalism and

alternatives to expulsion and

suspension; and persons with

knowledge concerning learning

disabilities, child abuse, neglect, and

youth violence.

(c) The State shall assure that it

complies with the Advisory Group

financial support requirement of section

222(d) and the composition and

function requirements of section

223(a)(3) of the JJDP Act.

§ 31.303 Substantive requirements.

(a) Assurances. The State must certify

through the provision of assurances that

it has complied and will comply (as

appropriate) with sections 223(a)(1), (2),

(3), (4), (5), (6), (7), (8), (9), (10), (11),

(16), (17), (18), (19), (20), (21), (22), and

(25), and sections 229 and 261(d), in

formulating and implementing the State

plan. The Formula Grant Application kit

provides a form and guidance for the

provision of assurances. OJJDP

interprets the section 223(a)(16)

assurance as satisfied by an affirmation

that State law and/or policy clearly

require equitable treatment on the

required bases; or by providing in the

State plan that the State agency will

require an assurance of equitable

treatment by all Formula Grant subgrant

and contract recipients, and establish as

a program goal, in conjunction with the

State Advisory Group, the adoption and

implementation of a statewide juvenile

justice policy that all youth in the

juvenile justice system will be treated

equitably without regard to gender, race,

family income, and mentally,

emotionally, or physically handicapping

conditions. OJJDP interprets the section

223(a)(25) assurance as satisfied by a

provision in the State plan for the State

agency and the State Advisory Group to

promulgate policies and budget

priorities that require the funding of

programs that are part of a

comprehensive and coordinated

community system of services as set

forth in section 103(19) of the JJDP Act.

This requirement is applicable when a

State’s formula grant for any fiscal year

exceeds 105 percent of the State’s

formula grant for FY 1992.

(b) Serious Juvenile Offender

Emphasis. Pursuant to sections

101(a)(10) and 223(a)(10) of the JJDP

Act, OJJDP encourages States that have

identified serious and violent juvenile

offenders as a priority problem to

allocate formula grant funds to programs

designed for serious and violent

juvenile offenders at a level consistent

with the extent of the problem as

identified through the State planning

process. Particular attention should be

given to improving prosecution,

sentencing procedures, providing

resources necessary for effective

rehabilitation, and facilitating the

coordination of services between the

juvenile justice and criminal justice

systems.

(c) Deinstitutionalization of Status

Offenders and Non-Offenders. Pursuant

to section 223(a)(12)(A) of the JJDP Act,

the State shall:

(1) Describe its plan, procedure, and

timetable covering the three-year

planning cycle, for assuring that the

requirements of this section are met.

Refer to § 31.303(f)(3) for the rules

related to the valid court order

exception to this Act requirement.

(2) Describe the barriers the State

faces in achieving full compliance with

the provisions of this requirement.

(3) Federal Wards. Apply this

requirement to alien juveniles under

Federal jurisdiction who are held in

State or local facilities.

(4) DSO compliance. Those States

which, based upon the most recently

submitted monitoring report, have been

found to be in full compliance with

section 223(a)(12)(A) may, in lieu of

addressing paragraphs (c)(1) and (2) of

this section, provide an assurance that

adequate plans and resources are

available to maintain full compliance.

(5) Submit the report required under

section 223(a)(12)(B) of the Act as part

of the annual monitoring report required

by section 223(a)(15) of the Act.

(d) Contact with incarcerated adults.

(1) Pursuant to section 223(a)(13) of

the JJDP Act the State shall:

(i) Separation. Describe its plan and

procedure, covering the three-year

planning cycle, for assuring that the

requirements of this section are met.

The term ‘‘contact’’ is defined to include

any sight and sound contact between

juveniles in a secure custody status and

incarcerated adults, including inmate

trustees. Sound contact is further

defined to mean any oral

communication between incarcerated

adults and juveniles. Separation must be

accomplished in all secure areas of the

facility which include, but are not

limited to: sallyports within the secure

perimeter of the facility, other entry

areas, all passageways (hallways),

admissions, sleeping, toilet and shower,

dining, recreational, educational,

vocational, health care, and other areas

as appropriate.

(ii) In those instances where accused

juvenile criminal-type offenders are

authorized to be temporarily detained in

facilities where adults are confined, the

State must set forth the procedures for

assuring no sight or sound contact

between such juveniles and confined

adults.

(iii) Describe the barriers which may

hinder the separation of alleged or

adjudicated criminal type offenders,

status offenders and non-offenders from

incarcerated adults in any particular

jail, lockup, detention or correctional

facility.

(iv) Those States which, based upon

the most recently submitted monitoring

report, have been found to be in

compliance with section 223(a)(13) may,

in lieu of addressing paragraphs

(d)(1)(i), (ii), and (iii) of this section,

provide an assurance that adequate

plans and resources are available to

maintain compliance.

(v) Assure that adjudicated offenders

are not reclassified administratively and

transferred to an adult (criminal)

correctional authority to avoid the

intent of segregating adults and

juveniles in correctional facilities. This

does not prohibit or restrict waiver of

juveniles to criminal court for

prosecution, according to State law. It

does, however, preclude a State from

administratively transferring a juvenile

offender to an adult correctional

authority or a transfer within a mixed
28444 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

juvenile and adult facility for placement

with adult criminals either before or

after a juvenile reaches the statutory age

of majority. It also precludes a State

from transferring adult offenders to

juvenile correctional authority for

placement.

(2) Implementation. The requirement

of this provision is to be planned and

implemented immediately by each

State.

(e) Removal of Juveniles From Adult

Jails and Lockups. Pursuant to section

223(a)(14)of the JJDP Act, the State

shall:

(1) Describe its plan, procedure, and

timetable for assuring that requirements

of this section will be met beginning

after December 8, 1985. Refer to

§ 31.303(f)(4) to determine the

regulatory exception to this

requirement.

(2) Describe the barriers which the

State faces in removing all juveniles

from adult jails and lockups. This

requirement excepts only those

juveniles formally waived or transferred

to criminal court and against whom

criminal felony charges have been filed,

or juveniles over whom a criminal court

has original or concurrent jurisdiction

and such court’s jurisdiction has been

invoked through the filing of criminal

felony charges.

(3) Collocated facilities.

(i) Determine whether or not a facility

in which juveniles are detained or

confined is an adult jail or lockup. The

JJDP Act prohibits the secure custody of

juveniles in adult jails and lockups,

except as otherwise provided under the

Act and implementing OJJDP

regulations. Juvenile facilities collocated

with adult facilities are considered adult

jails or lockups unless the paragraph

(e)(3)(i)(D)(1)–(4) criteria established in

this section are complied with and the

determinations and concurrences set

forth in paragraph (e)(3)(ii), (iii), and (iv)

of this section have been made.

(A) A collocated facility is a juvenile

facility located in the same building as

an adult jail or lockup, or is part of a

related complex of buildings located on

the same grounds as an adult jail or

lockup. A complex of buildings is

considered ‘‘related’’ when it shares

physical features such as walls and

fences, or services beyond mechanical

services (heating, air conditioning,

water and sewer), or the specialized

services that are allowable under

paragraph (e)(3)(i)(D)(3) of this section.

(B) The State, with OJJDP

concurrence, must determine whether a

collocated facility qualifies as a separate

juvenile detention facility under the

four criteria set forth in Paragraph

(e)(3)(i)(D)(1)–(4) of this section for the

purpose of monitoring compliance with

section 223(a)12(A), (13) and (14) of the

JJDP Act.

(C) A needs based analysis must

precede a jurisdiction’s request for State

approval and be included with the

request for OJJDP concurrence that a

collocated facility qualifies as a juvenile

detention facility. The needs based

analysis should include, but is not

limited to, consideration of such factors

as excessive travel time to an existing

juvenile detention center, crowding in

an existing facility (despite the use of

objective detention criteria),

obsolescence of an existing facility, and,

in areas where there are no juvenile

detention facilities, a measurable

increase in the need for juvenile

detention beds. OJJDP’s technical

assistance provider to the States should

be involved in the needs based analysis

(without cost to the State or local

jurisdiction). The needs based analysis

must take into consideration and be

coordinated with the State’s plans and

programs designed to establish a

continuum of detention care and to

assist detention facilities to provide a

full range of services for juvenile

offenders.

(D) Each of the following four criteria

must be met in order to ensure the

requisite separateness of a juvenile

detention facility that is collocated with

an adult jail or lockup:

(1) Total separation between juvenile

and adult facility spatial areas such that

there could be no sight or sound contact

between juveniles and incarcerated

adults in the facility. Total separation of

spatial areas can be achieved

architecturally, and must provide for no

common use areas (time-phasing is not

permissible).

(2) Total separation in all juvenile and

adult program areas, including

recreation, education, counseling,

dining, sleeping, and general living

activities. There must be an

independent and comprehensive

operational plan for the juvenile

detention center which provides for a

full range of separate program services.

No program activities may be shared by

juveniles and incarcerated adults.

However, equipment and other

resources may be used by both

populations subject to security concerns

and the criterion in paragraph

(e)(3)(i)(D)(1) of this section.

(3) Separate staff for the juvenile and

adult populations, including

management, security, and direct care

staff. Staff providing specialized

services (food service, laundry,

maintenance and engineering, etc.) who

are not normally in contact with

detainees, or whose infrequent contacts

occur under conditions of separation of

juveniles and adults, can serve both

populations (subject to State standards

or licensing requirements). The day to

day management, security and direct

care functions of the juvenile detention

center must be vested in a totally

separate staff, dedicated solely to the

juvenile population within the

collocated facilities; and

(4) In States that have established

standards or licensing requirements for

juvenile detention facilities, the juvenile

facility must meet the standards (on the

same basis as a free-standing juvenile

detention center) and be licensed as

appropriate. If there are no State

standards or licensing requirements,

then the jurisdiction must cooperate in

a preapproval review of its physical

plant, staffing patterns, and programs by

an organization selected and

compensated by OJJDP. This review will

be based on prevailing national juvenile

detention standards, and will inform the

State’s approval process and

concurrence by OJJDP.

(ii) The State must initially determine

that the four criteria are fully met. Upon

such determination, the State must

submit to OJJDP a request for

concurrence with the State’s finding

that a separate juvenile detention

facility exists. To enable OJJDP to assess

the separateness of the two facilities,

sufficient documentation must

accompany the request to demonstrate

that each criterion has been met. It is

incumbent upon the State to make the

initial determination through an on-site

facility (or full construction and

operations plan) review and, through

the exercise of its oversight

responsibility, to ensure that the

separate character of the juvenile

detention facility is maintained by

continuing to fully meet the four criteria

set forth above in paragraphs

(e)(3)(i)(D)(1)–(4) of this section.

(iii) Collocated juvenile detention

facilities approved by the State and

concurred with by OJJDP on or before

June 30, 1995 are to be reviewed against

the regulatory criteria and OJJDP

policies in effect at the time of the

initial approval and concurrence, except

that facilities approved after the

effective date of this regulation, but

prior to July 1, 1995, shall be reviewed

against the regulatory criteria in effect

on the day before the effective date of

this regulation, and except that all

collocated facilities are subject to the

separate staff requirement established

by the 1992 Amendments to the JJDP

Act, and set forth in paragraph

(e)(3)(i)(D)(3) of this section. Unless

otherwise indicated, review of

previously approved collocated
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28445

facilities is expected to occur as part of

the State’s regularly scheduled

monitoring activities.

(iv) OJJDP’s concurrence for facilities

considered after June 30, 1995 is limited

to one year and thereafter, will be

reviewed on an annual basis. An annual

on-site review of the facility must be

conducted by the compliance

monitoring staff person(s) representing

or employed by the State agency

administering the JJDP Act Formula

Grants Program. OJJDP’s concurrence is

required annually, and may involve onsite review by OJJDP staff. The purpose

of the annual review is to determine if

compliance with the criteria set forth in

paragraphs (e)(3)(i)(D)(1)–(4) of this

section is being maintained, and to

assess the continuing need for the

collocated facility and the jurisdiction’s

long term plan to move to a freestanding facility (single jurisdiction or

regional) or other detention alternative,

unless the juvenile detention center is

part of a justice center, in which case

the annual review will look solely at the

four regulatory criteria. An example of

a justice center is a building or a set of

buildings in which various agencies are

housed, such as law enforcement,

courts, State’s attorneys, public

defenders, and probation, in addition to

an adult jail or lockup, and a juvenile

detention facility.

(4) Those States which, based upon

the most recently submitted monitoring

report, have been found to be in full

compliance with section 223(a)(14) may,

in lieu of addressing paragraphs (e) (1)

and (2) of this section, provide an

assurance that adequate plans and

resources are available to maintain full

compliance.

(f) Monitoring of Jails, Detention

Facilities and Correctional Facilities.

(1) Pursuant to section 223(a)(15) of

the JJDP Act, and except as provided by

paragraph (f)(7) of this section, the State

shall:

(i) Describe its plan, procedure, and

timetable for annually monitoring jails,

lockups, detention facilities,

correctional facilities and non-secure

facilities. The plan must at a minimum

describe in detail each of the following

tasks including the identification of the

specific agency(s) responsible for each

task.

(A) Identification of monitoring

universe: This refers to the

identification of all residential facilities

which might hold juveniles pursuant to

public authority and thus must be

classified to determine if it should be

included in the monitoring effort. This

includes those facilities owned or

operated by public and private agencies.

(B) Classification of the monitoring

universe: This is the classification of all

facilities to determine which ones

should be considered as a secure

detention or correctional facility, adult

correctional institution, jail, lockup, or

other type of secure or nonsecure

facility.

(C) Inspection of facilities: Inspection

of facilities is necessary to ensure an

accurate assessment of each facility’s

classification and record keeping. The

inspection must include:

(1) A review of the physical

accommodations to determine whether

it is a secure or non-secure facility or

whether adequate sight and sound

separation between juvenile and adult

offenders exists and

(2) a review of the record keeping

system to determine whether sufficient

data are maintained to determine

compliance with section 223(a) (12),

(13) and/or (14).

(D) Data collection and data

verification: This is the actual collection

and reporting of data to determine

whether the facility is in compliance

with the applicable requirement(s) of

section 223(a) (12), (13) and/or (14). The

length of the reporting period should be

12 months of data, but in no case less

than 6 months. If the data is selfreported by the facility or is collected

and reported by an agency other than

the State agency designated pursuant to

section 223(a)(1) of the JJDP Act, the

plan must describe a statistically valid

procedure used to verify the reported

data.

(ii) Provide a description of the

barriers which the State faces in

implementing and maintaining a

monitoring system to report the level of

compliance with section 223(a) (12),

(13), and (14) and how it plans to

overcome such barriers.

(iii) Describe procedures established

for receiving, investigating, and

reporting complaints of violation of

section 223(a) (12), (13), and (14). This

should include both legislative and

administrative procedures and

sanctions.

(2) For the purpose of monitoring for

compliance with section 223(a)(12)(A)

of the Act a secure detention or

correctional facility is any secure public

or private facility used for the lawful

custody of accused or adjudicated

juvenile offenders or non-offenders, or

used for the lawful custody of accused

or convicted adult criminal offenders.

(3) Valid Court Order. For the purpose

of determining whether a valid court

order exists and a juvenile has been

found to be in violation of that valid

order all of the following conditions

must be present prior to secure

incarceration:

(i) The juvenile must have been

brought into a court of competent

jurisdiction and made subject to an

order issued pursuant to proper

authority. The order must be one which

regulates future conduct of the juvenile.

Prior to issuance of the order, the

juvenile must have received the full due

process rights guaranteed by the

Constitution of the United States.

(ii) The court must have entered a

judgment and/or remedy in accord with

established legal principles based on the

facts after a hearing which observes

proper procedures.

(iii) The juvenile in question must

have received adequate and fair warning

of the consequences of violation of the

order at the time it was issued and such

warning must be provided to the

juvenile and to the juvenile’s attorney

and/or legal guardian in writing and be

reflected In the court record and

proceedings.

(iv) All judicial proceedings related to

an alleged violation of a valid court

order must be held before a court of

competent jurisdiction. A juvenile

accused of violating a valid court order

may be held in secure detention beyond

the 24-hour grace period permitted for

a noncriminal juvenile offender under

OJJDP monitoring policy, for protective

purposes as prescribed by State law, or

to assure the juvenile’s appearance at

the violation hearing, as provided by

State law, if there has been a judicial

determination based on a hearing during

the 24-hour grace period that there is

probable cause to believe the juvenile

violated the court order. In such case

the juveniles may be held pending a

violation hearing for such period of time

as is provided by State law, but in no

event should detention prior to a

violation hearing exceed 72 hours

exclusive of nonjudicial days. A

juvenile alleged or found in a violation

hearing to have violated a Valid Court

Order may be held only in a secure

juvenile detention or correctional

facility, and not in an adult jail or

lockup.

(v) Prior to and during the violation

hearing the following full due process

rights must be provided:

(A) The right to have the charges

against the juvenile in writing served

upon him a reasonable time before the

hearing;

(B) The right to a hearing before a

court;

(C) The right to an explanation of the

nature and consequences of the

proceeding;
28446 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

(D) The right to legal counsel, and the

right to have such counsel appointed by

the court if indigent;

(E) The right to confront witnesses;

(F) The right to present witnesses;

(G) The right to have a transcript or

record of the proceedings; and

(H) The right of appeal to an

appropriate court.

(vi) In entering any order that directs

or authorizes disposition of placement

in a secure facility, the judge presiding

over an initial probable cause hearing or

violation hearing must determine that

all the elements of a valid court order

(paragraphs (f)(3) (i), (ii) and (iii) of this

section) and the applicable due process

rights (paragraph (f)(3)(v) of this section)

were afforded the juvenile and, in the

case of a violation hearing, the judge

must determine that there is no less

restrictive alternative appropriate to the

needs of the juvenile and the

community. This determination must be

preceded by a written report to the

judge that: reviews the behavior of the

juvenile and the circumstances under

which the juvenile was brought before

the court and made subject to such

order; determines the reasons for the

juvenile’s behavior; and determines

whether all dispositions other than

secure confinement have been

exhausted or are clearly inappropriate.

This report must be prepared and

submitted by an appropriate public

agency (other than a court or law

enforcement agency). A

multidisciplinary review team that

operates independently of courts or law

enforcement agencies would satisfy this

requirement even if some individual

members of the team represent court or

law enforcement agencies.

(vii) A non-offender such as a

dependent or neglected child cannot be

placed in secure detention or

correctional facilities for violating a

valid court order.

(4) Removal exception (section

223(a)(14)). The following conditions

must be met in order for an accused

juvenile criminal-type offender,

awaiting an initial court appearance, to

be detained up to 24 hours (excluding

weekends and holidays) in an adult jail

or lockup:

(i) The State must have an enforceable

State law requiring an initial court

appearance within 24 hours after being

taken into custody (excluding weekends

and holidays);

(ii) The geographic area having

jurisdiction over the juvenile is outside

a metropolitan statistical area pursuant

to the Bureau of Census’ current

designation;

(iii) A determination must be made

that there is no existing acceptable

alternative placement for the juvenile

pursuant to criteria developed by the

State and approved by OJJDP;

(iv) The adult jail or lockup must have

been certified by the State to provide for

the sight and sound separation of

juveniles and incarcerated adults; and

(v) The State must provide

documentation that the conditions in

paragraphs(f)(4)(i) through (iv) of this

section have been met and received

prior approval from OJJDP. OJJDP

strongly recommends that jails and

lockups that incarcerate juveniles be

required to provide youth specific

admissions screening and continuous

visual supervision of juveniles

incarcerated pursuant to this exception.

(vi) Pursuant to section 223(a)(14) of

the JJDP Act, the non-MSA (low

population density) exception to the jail

and lockup removal requirements as

described in paragraphs (f)(4)(i) through

(v) of this section shall remain in effect

through 1997, and shall allow for secure

custody beyond the twenty four hours

period described in paragraph (f)(4)(i) of

this section when the facility is located

where conditions of distance to be

traveled or the lack of highway, road, or

other ground transportation do not

allow for court appearances within

twenty four hours, so that a brief (not to

exceed an additional forty eight hours)

delay is excusable; or the facility is

located where conditions of safety exist

(such as severely adverse, lifethreatening weather conditions that do

not allow for reasonably safe travel), in

which case the time for an appearance

may be delayed until twenty four hours

after the time that such conditions allow

for reasonably safe travel. States may

use these additional statutory

allowances only where the precedent

requirements set forth in paragraphs

(f)(4)(i) through (v) of this section have

been complied with. This may

necessitate statutory or judicial (court

rule or opinion) relief within the State

from the twenty four hours initial court

appearance standard required by

paragraph (f)(4)(i) of this section. States

must document and describe in their

annual monitoring report to OJJDP, the

specific circumstances surrounding

each individual use of the distance/

ground transportation, and weather

allowances.

(5) Reporting requirement. The State

shall report annually to the

Administrator of OJJDP on the results of

monitoring for section 223(a)(12),(13),

and (14) of the JJDP Act. The reporting

period should provide 12 months of

data, but shall not be less than six

months. The report shall be submitted

to the Administrator of OJJDP by

December 31 of each year.

(i) To demonstrate the extent of

compliance with section 223(a)(12)(A)

of the JJDP Act, the report must include,

at a minimum, the following

information for the current reporting

period:

(A) Dates covered by the current

reporting period;

(B) Total number of public and

private secure detention and

correctional facilities, the total number

reporting, and the number inspected onsite;

(C) The total number of accused status

offenders and nonoffenders, including

out-of-State runaways and Federal

wards, held in any secure detention or

correctional facility for longer than

twenty four hours (not including

weekends or holidays), excluding those

held pursuant to the valid court order

provision as set forth in paragraph (f)(3)

of this section or pursuant to section

922(x) of title 18, United States Code, or

a similar State law;

(D) The total number of accused status

offenders (including valid court order

violators, out of state runaways, and

Federal wards, but excluding Title 18

922(x) violators) and nonoffenders

securely detained in any adult jail,

lockup, or nonapproved collocated

facility for any length of time;

(E) The total number of adjudicated

status offenders and nonoffenders,

including out-of-state runaways and

Federal wards, held for any length of

time in a secure detention or

correctional facility, excluding those

held pursuant to the valid court order

provision or pursuant to title 18 U.S.C.

section 922(x);

(F) The total number of status

offenders held in any secure detention

or correctional facility pursuant to the

valid court order provision set forth in

paragraph (f)(3) of this section; and

(G) The total number of juvenile

offenders held pursuant to title 18

U.S.C. section 922(x).

(ii) To demonstrate the extent to

which the provisions of section

223(a)(12)(B) of the JJDP Act are being

met, the report must include the total

number of accused and adjudicated

status offenders and nonoffenders

placed in facilities that are:

(A) Not near their home community;

(B) Not the least restrictive

appropriate alternative; and

(C) Not community-based.

(iii) To demonstrate the extent of

compliance with section 223(a)(13) of

the JJDP Act, the report must include, at

a minimum, the following information

for the current reporting period:

(A) Dates covered by the current

reporting period;
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28447

(B) The total number of facilities used

to detain or confine both juvenile

offenders and adult criminal offenders

during the past 12 months and the

number inspected on-site;

(C) The total number of facilities used

for secure detention and confinement of

both juvenile offenders and adult

criminal offenders which did not

provide sight and sound separation;

(D) The total number of juvenile

offenders and nonoffenders not

separated from adult criminal offenders

in facilities used for the secure

detention and confinement of both

juveniles and adults;

(E) The total number of juvenile

detention centers located within the

same building or on the same grounds

as an adult jail or lockup that have been

concurred with by OJJDP, including a

list of such facilities;

(F) The total number of juveniles

detained in collocated facilities

concurred with by OJJDP that were not

separated from the management,

security or direct care staff of the adult

jail or lockup;

(G) The total number of juvenile

detention centers located within the

same building or on the same grounds

as an adult jail or lockup that have not

been concurred with by OJJDP,

including a list of such facilities; and

(H) The total number of juveniles

detained in collocated facilities not

approved by the State and concurred

with by OJJDP, that were not sight and

sound separated from adult criminal

offenders.

(iv) To demonstrate the extent of

compliance with section 223(a)(14) of

the JJDP Act, the report must include, at

a minimum, the following information

for the current reporting period:

(A) Dates covered by the current

reporting period;

(B) The total number of adult jails in

the State AND the number inspected onsite;

(C) The total number of adult lockups

in the State AND the number inspected

on-site;

(D) The total number of adult jails

holding juveniles during the past twelve

months;

(E) The total number of adult lockups

holding juveniles during the past twelve

months;

(F) The total number of accused

juvenile criminal-type offenders held

securely in adult jails, lockups, and

collocated facilities not concurred with

by OJJDP, in excess of six hours

(including those held pursuant to the

‘‘removal exception’’ as set forth in

paragraph (f)(4) of this section);

(G) The total number of accused

juvenile criminal-type offenders held

securely in adult jails, lockups and

collocated facilities not concurred with

by OJJDP for less than six hours for

purposes other than identification,

investigation, processing, release to

parent(s), transfer to court, or transfer to

a juvenile facility following initial

custody;

(H) The total number of adjudicated

juvenile criminal-type offenders held

securely in adult jails or lockups and

collocated facilities not concurred with

by OJJDP for any length of time;

(I) The total number of accused and

adjudicated status offenders (including

valid court order violators) and

nonoffenders held securely in adult

jails, lockups and collocated facilities

not concurred with by OJJDP, for any

length of time;

(J) The total number of adult jails,

lockups, and collocated facilities not

concurred with by OJJDP, in areas

meeting the ‘‘removal exception’’ as

noted in paragraph (f)(4) of this section,

including a list of such facilities and the

county or jurisdiction in which each is

located;

(K) The total number of juveniles

accused of a criminal-type offense who

were held in excess of six hours but less

than 24 hours in adult jails, lockups and

collocated facilities not concurred with

by OJJDP pursuant to the ‘‘removal

exception’’ as set forth in paragraph

(f)(4) of this section;

(L) The total number of juveniles

accused of a criminal-type offense who

were held in excess of 24 hours but not

more than an additional 48 hours in

adult jails, lockups and collocated

facilities not concurred with by OJJDP

pursuant to the ‘‘removal exception’’ as

noted in paragraph (f)(4) of this section,

due to conditions of distance or lack of

ground transportation; and

(M) The total number of juveniles

accused of a criminal-type offense who

were held in excess of 24 hours, but not

more than an additional 24 hours after

the time such conditions as adverse

weather allow for reasonably safe travel,

in adult jails, lockups and collocated

facilities not concurred with by OJJDP,

in areas meeting the ‘‘removal

exception’’ as noted in paragraph (f)(4)

of this section.

(6) Compliance. The State must

demonstrate the extent to which the

requirements of sections 223(a)(12)(A),

(13), (14), and (23) of the Act are met.

If the State fails to demonstrate full

compliance with sections 223(a)(12)(A)

and (14), and compliance with sections

223(a)(13) and (23) by the end of the

fiscal year for any fiscal year beginning

with fiscal year 1994, the State’s

allotment under Section 222 will be

reduced by twenty five percent for each

such failure, provided that the State will

lose its eligibility for any allotment

unless: the State agrees to expend all

remaining funds (except planning and

administration, State advisory group setaside funds and Indian tribe passthrough funds) for the purpose of

achieving compliance with the

mandate(s) for which the State is in

noncompliance; or the Administrator

makes discretionary determination that

the State has substantially complied

with the mandate(s) for which there is

noncompliance and that the State has

made through appropriate executive or

legislative action, an unequivocal

commitment to achieving full

compliance within a reasonable time. In

order for a determination to be made

that a State has substantially complied

with the mandate(s), the State must

demonstrate that it has: Diligently

carried out the plan approved by OJJDP;

demonstrated significant progress

toward full compliance; submitted a

plan based on an assessment of current

barriers to DMC; and provided an

assurance that added resources will be

expended, be it formula grants or other

funds, to achieve compliance. Where a

State’s allocation is reduced, the amount

available for planning and

administration and the required passthrough allocation, other than State

advisory group set-aside, will be

reduced because they are based on the

reduced allocation.

(i) Substantial compliance with

section 223(a)(12)(A) can be used to

demonstrate eligibility for FY 1993 and

prior year formula grant allocations if,

within three years of initial plan

submission, the State has achieved a

seventy five percent reduction in the

aggregate number of status offenders

and nonoffenders held in secure

detention or correctional facilities, or

removal of 100 percent of such juveniles

from secure correctional facilities only.

In addition, the State must make an

unequivocal commitment, through

appropriate executive or legislative

action, to achieving full compliance by

FY 1994. Full compliance is achieved

when a State has removed 100 percent

of such juveniles from secure detention

and correctional facilities or can

demonstrate full compliance with de

minimis exceptions pursuant to the

policy criteria contained in the Federal

Register of January 9, 1981 (46 FR 2566–

2569).

(ii) Compliance with section

223(a)(13) has been achieved when a

State can demonstrate that:

(A) The last submitted monitoring

report, covering a full 12 months of

data, demonstrates that no juveniles

were incarcerated in circumstances that
28448 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

were in violation of section 223(a)(13);

or

(B) (1) State law, regulation, court

rule, or other established executive or

judicial policy clearly prohibits the

incarceration of all juvenile offenders in

circumstances that would be in

violation of section 223(a)(13);

(2) All instances of noncompliance

reported in the last submitted

monitoring report were in violation of,

or departures from, the State law, rule,

or policy referred to in paragraph

(f)(6)(ii)(B)(1) of this section;

(3) The instances of noncompliance

do not indicate a pattern or practice but

rather constitute isolated instances; and

(4) Existing mechanisms for the

enforcement of the State law, rule, or

policy referred to in paragraph

(f)(6)(ii)(B)(1) of this section are such

that the instances of noncompliance are

unlikely to recur in the future.

(iii) (A) Full compliance is achieved

when a state demonstrates that the last

submitted monitoring report, covering

12 months of actual data, demonstrates

that no juveniles were held in adult jails

or lockups in circumstances that were in

violation of section 223(a)(14).

(B) Full compliance with de minimis

exceptions is achieved when a State

demonstrates that it has met the

standard set forth in either of

paragraphs (f)(6)(iii)(B) (1) or (2) of this

section:

(1) Substantive De Minimis Standard.

To comply with this standard the State

must demonstrate that each of the

following requirements have been met:

(i) State law, court rule, or other

statewide executive or judicial policy

clearly prohibits the detention or

confinement of all juveniles in

circumstances that would be in

violation of section 223(a)(14);

(ii) All instances of noncompliance

reported in the last submitted

monitoring reported were in violation of

or departures from, the State law, rule,

or policy referred to In paragraph

(f)(6)(iii)(B)(1)(i) of this section;

(iii) The instances of noncompliance

do not indicate a pattern or practice but

rather constitute isolated instances;

(iv) Existing mechanisms for the

enforcement of the State law, rule or

policy referred to in paragraph

(f)(6)(iii)(B)(1)(i) of this section are such

that the instances of noncompliance are

unlikely to recur in the future; and

(v) An acceptable plan has been

developed to eliminate the

noncompliant incidents and to monitor

the existing mechanism referred to in

paragraph (f)(6)(iii)(B)(1)(iv) of this

section.

(2) Numerical De Minimis Standard.

To comply with this standard the State

must demonstrate that each of the

following requirements under

paragraphs (f)(6)(iii)(B)(2) (i) and (ii) of

this section have been met:

(i) The incidents of noncompliance

reported in the State’s last submitted

monitoring report do not exceed an

annual rate of 9 per 100,000 juvenile

population of the State; and

(ii) An acceptable plan has been

developed to eliminate the

noncompliant incidents through the

enactment or enforcement of State law,

rule, or statewide executive or judicial

policy, education, the provision of

alternatives, or other effective means.

(iii) Exception. When the annual rate

for a State exceeds 9 incidents of

noncompliance per 100,000 juvenile

population, the State will be considered

ineligible for a finding of full

compliance with de minimis exceptions

under the numerical de minimis

standard unless the State has recently

enacted changes in State law which

have gone into effect and which the

State demonstrates can reasonably be

expected to have a substantial,

significant and positive impact on the

state’s achieving full (100%) compliance

or full compliance with de minimis

exceptions by the end of the monitoring

period immediately following the

monitoring period under consideration.

(iv) Progress. Beginning with the

monitoring report due by December 31,

1990, any State whose prior full

compliance status is based on having

met the numerical de minimis standard

set forth in paragraph (f)(6)(iii)(B)(2)(i)

of this § 31.303, must annually

demonstrate, in its request for a finding

of full compliance with de minimis

exceptions, continued and meaningful

progress toward achieving full (100%)

compliance in order to maintain

eligibility for a continued finding of full

compliance with de minimis

exceptions.

(v) Request Submission.

Determinations of full compliance and

full compliance with de minimis

exceptions are made annually by OJJDP

following submission of the monitoring

report due by December 31 of each

calendar year. Any State reporting less

than full (100%) compliance in any

annual monitoring report may request a

finding of full compliance with de

minimis exceptions under paragraph

(f)(6)(iii)(B) (1) or (2) of this section. The

request may be submitted in

conjunction with the monitoring report,

as soon thereafter as all information

required for a determination is

available, or be included in the annual

State plan and application for the State’s

formula grant award.

(C) Waiver. Failure to achieve full

compliance as defined in this section

shall terminate any State’s eligibility for

FY 1993 and prior year formula grant

funds unless the Administrator of OJJDP

waives termination of the State’s

eligibility. ln order to be eligible for this

waiver of termination, a State must

request a waiver and demonstrate that it

meets the standards set forth in

paragraphs (f)(6)(iii)(C) (1)–(7) of this

section:

(1) Agrees to expend all of its formula

grant award except planning and

administration, advisory group setaside, and Indian tribe pass-through

funds, to achieve compliance with

section 223(a)(14); and

(2) Removed all status and

nonoffender juveniles from adult jails

and lockups. Compliance with this

standard requires that the last submitted

monitoring report demonstrate that no

status offender (including those accused

of or adjudicated for violating a valid

court order) or nonoffender juveniles

were securely detained in adult jails or

lock-ups for any length of time; or that

all status offenders and nonoffenders

securely detained in adult jails and

lock-ups for any length of time were

held in violation of an enforceable State

law and did not constitute a pattern or

practice within the State; and

(3) Made meaningful progress in

removing juvenile criminal-type

offenders from adult jails and lockups.

Compliance with this standard requires

the State to document a significant

reduction in the number of jurisdictions

securely detaining juvenile criminaltype offenders in violation of section

223 (a)(14) of the JJDP Act; or a

significant reduction in the number of

facilities securely detaining such

juveniles; or a significant reduction in

the average length of time each juvenile

criminal-type offender is securely

detained in an adult jail or lock-up; or

State legislation has recently been

enacted and taken effect and which the

State demonstrates will significantly

impact the secure detention of juvenile

criminal-type offenders in adult jails

and lock-ups; and

(4) Diligently carried out the State’s

jail and lockup removal plan approved

by OJJDP. Compliance with this

standard requires that actions have been

undertaken to achieve the State’s jail

and lock-up removal goals and

objectives within approved time lines,

and that the State Advisory Group,

required by section 223 (a)(3) of the JJDP

Act, has maintained an appropriate

involvement in developing and/or

implementing the State’s plan; and

(5) Submitted an acceptable plan,

based on a assessment of current jail
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28449

and lockup removal barriers within the

State, to eliminate noncompliant

incidents; and

(6) Achieved compliance with section

223(a)(15) of the JJDP Act; and

(7) Demonstrates an unequivocal

commitment, through appropriate

executive or legislative action, to

achieving full compliance.

(D) Waiver Maximum. A State may

receive a waiver of termination of

eligibility from the Administrator under

paragraph (f)(6)(iii)(C) of this section for

a combined maximum of four Formula

Grant Awards through Fiscal Year 1993.

No additional waivers will be granted.

(7) Monitoring report exemption.

States which have been determined by

the OJJDP Administrator to have

achieved full compliance with sections

223(a)(12)(A), (a)(14), and compliance

with section 223(a)(13) of the JJDP and

wish to be exempted from the annual

monitoring report requirements must

submit a written request to the OJJDP

Administrator which demonstrates that:

(i) The State provides for an adequate

system of monitoring jails, law

enforcement lockup, detention facilities,

to enable an annual determination of

State compliance with sections

223(a)(12)(A), (13), and (14) of the JJDP

Act;

(ii) State legislation has been enacted

which conforms to the requirements of

Sections 223(a)(12)(A), (13), and (14) of

the JJDP Act; and

(iii) The enforcement of the legislation

is statutorily or administratively

prescribed, specifically providing that:

(A) Authority for enforcement of the

statute is assigned;

(B) Time frames for monitoring

compliance with the statute are

specified; and

(C) Adequate procedures are set forth

for enforcement of the statute and the

imposition of sanctions for violations.

(g) Juvenile crime analysis. Pursuant

to section 223(a)(8), the State must

conduct an analysis of juvenile crime

problems, including juvenile gangs that

commit crimes, and juvenile justice and

delinquency prevention needs within

the State, including those geographical

areas in which an Indian tribe performs

law enforcement functions. The analysis

and needs assessment must include

educational needs, gender specific

services, delinquency prevention and

treatment services in rural areas, and

mental health services available to

juveniles in the juvenile justice system.

The analysis should discuss barriers to

accessing services and provide a plan to

provide such services where needed.

(1) Analysis. The analysis must be

provided in the multiyear application. A

suggested format for the analysis is

provided in the Formula Grant

Application Kit.

(2) Product. The product of the

analysis is a series of brief written

problem statements set forth in the

application that define and describe the

priority problems.

(3) Programs. Applications are to

include descriptions of programs to be

supported with JJDP Act formula grant

funds. A suggested format for these

programs is included in the application

kit.

(4) Performance Indicators. A list of

performance indicators must be

developed and set forth for each

program. These indicators show what

data will be collected at the program

level to measure whether objectives and

performance goals have been achieved

and should relate to the measures used

in the problem statement and statement

of program objectives.

(h) Annual Performance Report.

Pursuant to section 223(a) and section

223(a)(22) the State plan shall provide

for submission of an annual

performance report. The State shall

report on its progress in the

implementation of the approved

programs, described in the three-year

plan. The performance indicators will

serve as the objective criteria for a

meaningful assessment of progress

toward achievement of measurable

goals. The annual performance report

shall describe progress made in

addressing the problem of serious

juvenile crime, as documented in the

juvenile crime analysis pursuant to

section 223(a)(8)(A). The annual

performance report must be submitted

to OJJDP no later than June 30 and

address all formula grant activities

carried out during the previous

complete calendar year, federal fiscal

year, or State fiscal year for which

information is available, regardless of

which year’s formula grant funds were

used to support the activities being

reported on, e.g., during a reporting

period, activities may have been funded

from two or more formula grant awards.

(i) Technical Assistance. States shall

include, within their plan, a description

of technical assistance needs. Specific

direction regarding the development

and inclusion of all technical assistance

needs and priorities will be provided in

the ‘‘Application Kit for Formula Grants

under the JJDPA.’’

(j) Minority Detention and

Confinement. Pursuant to section

223(a)(23) of the JJDP Act, States must

demonstrate specific efforts to reduce

the proportion of juveniles detained or

confined in secure detention facilities,

secure correctional facilities, jails and

lockups who are members of minority

groups if such proportion exceeds the

proportion such groups represent in the

general population, viz., in most States,

youth between ages ten-seventeen are

subject to secure custody. It is essential

that States approach this statutory

mandate in a comprehensive manner.

Compliance with this provision is

achieved when a State meets the

requirements set forth in paragraphs

(j)(1) through (3) of this section:

(1) Identification. Provide quantifiable

documentation (State, county and local

level) in the State’s FY 1994 Formula

Grant Plan (and all subsequent MultiYear Plans) Juvenile Crime Analysis and

Needs Assessment to determine whether

minority juveniles are

disproportionately detained or confined

in secure detention and correctional

facilities, jails and lockups in relation to

their proportion of the State juvenile

population. Guidelines are provided in

the OJJDP Disproportionate Minority

Confinement Technical Assistance

Manual (see Phase I Matrix). Where

quantifiable documentation is not

available to determine if

disproportionate minority confinement

exists in secure detention and

correctional facilities, jails and lockups,

the State must provide a time-limited

plan of action, not to exceed six months,

for developing and implementing a

system for the ongoing collection,

analysis and dissemination of

information regarding minorities for

those facilities where documentation

does not exist.

(2) Assessment. Each State’s FY 1994

Formula Grant Plan must provide a

completed assessment of

disproportionate minority confinement.

Assessments must, at minimum,

identify and explain differences in

arrest, diversion and adjudication rates,

court dispositions other than

incarceration, the rates and periods of

prehearing detention in and

dispositional commitments to secure

facilities of minority youth in the

juvenile justice system, and transfers to

adult court (see Phase II Matrix). If a

completed assessment is not available,

the State must submit a time-limited

plan (not to exceed twelve months from

submission of the Formula Grant

Application) for completing the

assessment.

(3) Intervention. Each State’s FY 1995

Formula Grant Plan must, where

disproportionate confinement has been

demonstrated, provide a time-limited

plan of action for reducing the

disproportionate confinement of

minority juveniles in secure facilities.

The intervention plan shall be based on

the results of the assessment, and must
28450 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

include, but not be limited to the

following:

(i) Diversion. Increasing the

availability and improving the quality of

diversion programs for minorities who

come in contact with the juvenile justice

system, such as police diversion

programs;

(ii) Prevention. Providing

developmental, operational, and

assessment assistance (financial and/or

technical) for prevention programs in

communities with a high percentage of

minority residents with emphasis upon

support for community-based

organizations (including non-traditional

organizations) that serve minority

youth;

(iii) Reintegration. Providing

developmental, operational, and

assessment assistance (financial and/or

technical) for programs designed to

reduce recidivism by facilitating the

reintegration of minority youth in the

community following release from

dispositional commitments to reduce

recidivism;

(iv) Policies and procedures.

Providing financial and/or technical

assistance that addresses necessary

changes in statewide and local,

executive, judicial, and legal

representation policies and procedures;

and

(v) Staffing and training. Providing

financial and/or technical assistance

that addresses staffing and training

needs that will positively impact the

disproportionate confinement of

minority youth in secure facilities.

(4) The time-limited plans of action

set forth in paragraphs (j) (1), (2) and (3)

of this section must include a clear

indication of current and future barriers;

which agencies, organizations, or

individual(s) will be responsible for

taking what specific actions; when; and

what the anticipated outcomes are. The

interim and final outcomes from

implementation of the time-limited plan

of action must be reported in each

State’s Multi-Year Plans and Annual

Plan Updates. Final outcomes for

individual project awards are to be

included with each State’s annual

performance report (See Paragraph (h) of

this Section).

(5) Technical assistance is available

through the OJJDP Technical Assistance

Contract to help guide States with the

data collection and analysis, and with

programmatic elements of this

requirement. Information from the

OJJDP Special Emphasis Initiative on

Disproportionate Minority Confinement

pilot sites will be disseminated as it

becomes available.

(6) For purposes of this statutory

mandate, minority populations are

defined as: African-Americans,

American Indians, Asians, Pacific

Islanders, and Hispanics.

(k) Pursuant to section 223(a)(24) of

the JJDP Act, states shall agree to other

terms and conditions as the

Administrator may reasonably prescribe

to assure the effectiveness of programs

assisted under the Formula Grant.

§ 31.304 Definitions.

(a) Private agency. A private nonprofit agency, organization or institution

is:

(1) Any corporation, foundation, trust,

association, cooperative, or accredited

institution of higher education not

under public supervision or control; and

(2) Any other agency, organization or

institution which operates primarily for

scientific, education, service, charitable,

or similar public purposes, but which is

not under public supervision or control,

and no part of the net earnings of which

inures or may lawfully inure to the

benefit of any private shareholder or

individual, and which has been held by

IRS to be tax-exempt under the

provisions of section 501(c)(3) of the

1954 Internal Revenue Code.

(b) Secure. As used to define a

detention or correctional facility this

term includes residential facilities

which include construction features

designed to physically restrict the

movements and activities of persons in

custody such as locked rooms and

buildings, fences, or other physical

structures. It does not include facilities

where physical restriction of movement

or activity is provided solely through

facility staff.

(c) Facility. A place, an institution, a

building or part thereof, set of buildings

or an area whether or not enclosing a

building or set of buildings which is

used for the lawful custody and

treatment of juveniles and may be

owned and/or operated by public and

private agencies.

(d) Juvenile who is accused of having

committed an offense. A juvenile with

respect to whom a petition has been

filed In the juvenile court or other

action has occurred alleging that such

juvenile is a juvenile offender, i.e., a

criminal-type offender or a status

offender, and no final adjudication has

been made by the juvenile court.

(e) Juvenile who has been adjudicated

as having committed an offense. A

juvenile with respect to whom the

juvenile court has determined that such

juvenile is a juvenile offender, i.e., a

criminal-type offender or a status

offender.

(f) Juvenile offender. An individual

subject to the exercise of juvenile court

jurisdiction for purposes of adjudication

and treatment based on age and offense

limitations by defined as State law, i.e.,

a criminal-type offender or a status

offender.

(g) Criminal-type offender. A juvenile

offender who has been charged with or

adjudicated for conduct which would,

under the law of the jurisdiction in

which the offense was committed, be a

crime if committed by an adult.

(h) Status offender. A juvenile

offender who has been charged with or

adjudicated for conduct which would

not, under the law of the jurisdiction in

which the offense was committed, be a

crime if committed by an adult.

(i) Non-offender. A juvenile who is

subject to the jurisdiction of the juvenile

court, usually under abuse, dependency,

or neglect statutes for reasons other than

legally prohibited conduct of the

juvenile.

(j) Lawful custody. The exercise of

care, supervision and control over a

juvenile offender or non-offender

pursuant to the provisions of the law or

of a judicial order or decree.

(k) Other individual accused of

having committed a criminal offense.

An individual, adult or juvenile, who

has been charged with committing a

criminal offense in a court exercising

criminal jurisdiction.

(l) Other individual convicted of a

criminal offense. An individual, adult or

juvenile, who has been convicted of a

criminal offense in court exercising

criminal jurisdiction.

(m) Adult jail. A locked facility,

administered by State, county or local

law enforcement and correctional

agencies, the purpose of which is to

detain adults charged with violating

criminal law, pending trial. Also

considered as adult jails are those

facilities used to hold convicted adult

criminal offenders sentenced for less

than one year.

(n) Adult lockup. Similar to an adult

jail except that an adult lockup is

generally a municipal or police facility

of a temporary nature which does not

hold persons after they have been

formally charged.

(o) Valid court order. The term means

a court order given by a juvenile court

judge to a juvenile who has been

brought before the court and made

subject to a court order. The use of the

word ‘‘valid’’ permits the incarceration

of juveniles for violation of a valid court

order only if they received their full due

process rights as guaranteed by the

Constitution of the United States.

(p) Local private agency. For the

purposes of the pass-through

requirement of section 223(a)(5), a local

private agency is defined as a private

non-profit agency or organization that
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28451

provides program services within an

identifiable unit or a combination of

units of general local government.

Subpart E—General Conditions and

Assurances

§ 31.400 Compliance with statute.

The applicant State must assure and

certify that the State and its subgrantees

and contractors will comply with

applicable provisions of the Omnibus

Crime Control and Safe Streets Act of

1968, Pub. L. 90–351, as amended, and

with the provisions of the Juvenile

Justice and Delinquency Prevention Act

of 1974, Pub. L. 93–415, as amended,

and the provisions of the current edition

of OJP Financial and Administrative

Guide for Grants, M7100.1.

§ 31.401 Compliance with other Federal

laws, orders, circulars.

The applicant State must further

assure and certify that the State and its

subgrantees and contractors will adhere

to other applicable Federal laws, orders

and OMB circulars. These general

Federal laws and regulations are

described in greater detail in the

Financial and Administrative Guide for

Grants, M7100.1, and the Formula Grant

Application Kit.

§ 31.402 Application on file.

Any Federal funds awarded pursuant

to an application must be distributed

and expended pursuant to and in

accordance with the programs contained

in the applicant State’s current

approved application. Any departures

therefrom, other than to the extent

permitted by current program and fiscal

regulations and guidelines, must be

submitted for advance approval by the

Administrator of OJJDP.

§ 31.403 Civil rights requirements.

The State assures that it will comply,

and that subgrantees and contractors

will comply, with all applicable Federal

non-discrimination requirements,

including:

(a) Section 809(c) of the Omnibus

Crime Control and Safe Streets Act as

1968, as amended, and made applicable

by section 299(A) of the Juvenile Justice

and Delinquency Prevention Act of

1974, as amended;

(b) Title VI of the Civil Rights Act of

1964, as amended;

(c) Section 504 of the Rehabilitation

Act of 1973, as amended;

(d) Title IX of the Education

Amendments of 1972;

(e) The Age Discrimination Act of

1975;

(f) The Department of Justice

NonDiscrimination regulations, 28 CFR

part 42, subparts C, D, E, and G;

(g) The Department of Justice

regulations on disability discrimination,

28 CFR parts 35 and 39; and

(h) Subtitle A, title II of the Americans

with Disabilities Act (ADA) of 1990.

Shay Bilchik,

Administrator, Office of Juvenile Justice and

Delinquency Prevention.

[FR Doc. 95–13046 Filed 5–30–95; 8:45 am]

BILLING CODE 4410–18–P