13330 Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations

DEPARTMENT OF JUSTICE

Office of Justice Programs

Office of Juvenile Justice and

Delinquency Prevention

28 CFR Part 31

[OJP No. 1045]

RIN 1121–AA28

Formula Grants

AGENCY: U.S. Department of Justice,

Office of Justice Programs, Office of

Juvenile Justice and Delinquency

Prevention.

ACTION: Final regulation.

SUMMARY: The Office of Juvenile Justice

and Delinquency Prevention (OJJDP) is

publishing the final revision of the

existing Formula Grants Regulation,

which implements part B of Title II of

the Juvenile Justice and Delinquency

Prevention (JJDP) Act of 1974, as

amended by the Juvenile Justice and

Delinquency Prevention Amendments

of 1992.

The 1992 Amendments reauthorize

and modify the Federal assistance

program to State and local governments,

and private not-for-profit agencies for

juvenile justice and delinquency

prevention improvements. The final

revision to the existing Regulation

provides clarification and guidance to

States in the formulation, submission

and implementation of State Formula

Grant plans and determinations of State

compliance with plan requirements. It

provides additional flexibility and

guidance to participating States while

strengthening several key provisions

related to the mandates of the JJDP Act.

EFFECTIVE DATE: This regulation is

effective 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:

Statutory Amendments

The 1992 reauthorization of the JJDP

Act resulted in statutory amendments

that impact the Formula Grants Program

(28 CFR part 31). 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 (DSO) 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; and a

provision that a status offender alleged

or found in a judicial hearing to have

violated a valid court order (VCO) may

be held in a secure juvenile detention or

correctional facility only if enhanced

due process and procedural protections

have been provided.

The Violent Crime Control and Law

Enforcement Act of 1994 (Pub. L. 103–

322, September 13, 1994) amended the

DSO provision of the JJDP Act to

exclude juveniles charged with or

adjudicated for possessing a handgun

from coverage under the DSO

requirement.

The final regulation details revised

procedures and requirements for States

participating in the Formula Grants

Program resulting from the 1992

Amendments to the JJDP Act (Pub. L.

102–586, November 18, 1992).

Description of Major Changes

Formula Grant Allocations

Section 222(a) of the JJDP Act,

provides for a ‘‘floating minimum’’ for

the allocation of formula grants to States

and Territories that is tied to the total

appropriation level for Title II in a given

fiscal year (FY). For FY’s 1994 and 1995,

the total appropriation for Title II

exceeded $75 million and Congress

appropriated sufficient funds to

maintain each State at least at its FY

1992 funding level and raise the

minimum allocation for each State and

Territory to $600,000 and $100,000

respectively.

Application Deadline

The submission requirement for

formula grant applications is changed to

require that FY 1995 applications and

all subsequent applications be

submitted to OJJDP no later than March

31 of the fiscal year for which the funds

were allocated.

State Agency Structure—Staffing

The regulation is revised to require

the assignment of one full-time Juvenile

Justice Specialist to manage the Formula

Grants Program.

Collocated Juvenile and Adult Facilities

The regulation clarifies the existing

four criteria for a juvenile detention

facility that is collocated with an adult

jail or lockup by providing for: (1) Total

separation in spatial areas of juvenile

and adult facilities can be achieved by

providing for no common use areas,

including time-phasing; (2) total

separation in juvenile and adult

program activities requires the

formulation of an independent and

comprehensive operational plan for the

juvenile facility which provides a full

range of separate program activities for

juveniles; (3) separate juvenile and adult

staff includes all management, security

and direct care personnel; and (4) in

States that have standards or licensing

requirements for secure juvenile

detention facilities, a collocated facility

must meet the standards on the same

basis as separate facilities and be

licensed as appropriate.

OJJDP intends these clarifications to

enhance and strengthen the four

separate facility requirements for States

completing final steps to achieve and

maintain full compliance with the jail

and lockup removal requirement. State

certification and oversight

responsibilities are strengthened by

requiring annual on-site review. The

1992 Amendments require States to

review and ensure compliance with the

separate staff criterion in all collocated

facilities, including those classified as

such by the State and concurred with by

OJJDP prior to the effective date of this

regulation.

OJJDP believes the ideal or most

optimal setting for a juvenile detention

facility is one in which the facility is not

collocated with an adult jail or lockup.

Further, OJJDP believes that

jurisdictions and States should not rely

upon collocated facilities as a primary

or long-term strategy for achieving and

maintaining compliance with the jail

and lockup removal mandate. However,

OJJDP believes that where there is a

demonstrated need for an existing or

planned collocated facility, jurisdictions

should have the flexibility to use such

a facility, but only where the enhanced

requirements, critical to ensuring an

appropriate environment for detained

youth, are met. Collocated juvenile

detention facilities approved by the

State and concurred with by OJJDP prior

to March 31, 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 all collocated facilities are subject

to the separate staff requirement

established by the 1992 Amendments.

OJJDP’s concurrence on all collocated

facilities submitted for OJJDP review

after March 31, 1995 is limited to one

year and, thereafter, would be reviewed

on an annual basis. An on-site review of

the facility must be conducted by the

compliance monitoring staff for the

State agency administering the JJDP Act

Formula Grants Program. OJJDP’s

concurrence may also require on-site
Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations 13331

review by OJJDP staff. Additionally, in

order to receive OJJDP’s initial and

subsequent concurrence, a juvenile

detention facility approved after March

31, 1995 must, pursuant to a written

policy and procedure, only provide

secure custody for: juvenile criminaltype offenders; status offenders accused

of violating a VCO; and adjudicated

delinquents and VCO order violators

who are awaiting disposition hearings

or transfer to a long-term juvenile

correctional facility.

Criteria for Compliance with DSO, Adult

Jail and Lockup Removal, Separation,

and Minority Over-representation

The regulation deletes the

‘‘substantial compliance’’ criteria from

Section 31.303(c)(3) and (e)(4). Pursuant

to the 1992 Amendments, participating

States are required to be in full

compliance with the DSO and Jail and

Lockup Removal mandates and

demonstrate compliance with the

Separation and Enhanced

Disproportionate Minority Confinement

(DMC) in order to be eligible for FY

1994 and subsequent year Formula

Grant funds. Therefore, the regulatory

provision recognizing ‘‘progress’’

toward compliance with the Separation

mandate is being deleted. Also,

enhanced criteria and specific time lines

are established for the DMC Mandate.

Deinstitutionalization of Status

Offenders

The regulation brings the DSO

requirement in line with the Section

223(a)(14) Jail and Lockup Removal

requirement by eliminating the

monitoring report exclusion for status

offenders and nonoffenders securely

detained or confined in an adult jail or

lockup for less than twenty four hours

exclusive of weekends and holidays.

This reflects OJJDP’s determination that

there are no longer any circumstances in

which the secure custody of

noncriminal juveniles in adult jails and

lockups can be justified or sanctioned.

To the extent that inadvertent or

isolated violations occur, or where

violations result from emergency

situations, the de minimis criteria for

full compliance should continue to

provide sufficient latitude to permit

States to maintain full compliance with

the DSO requirement. Monitoring

information to reflect this change must

be included in the State Monitoring

Report due by December 31, 1995, and

subsequent monitoring reports.

Discussion of Comments

The proposed revisions to the existing

Formula Grants Regulation were

published in the Federal Register on

July 25, 1994 (59 FR 37866), for public

comment. Written comments were

received on ten issues addressed by the

proposed regulation. All comments have

been considered by OJJDP in the

issuance of this final regulation.

The following is a summary of the

comments and the responses by OJJDP:

l. Comment: One respondent felt that

States should be allowed to submit their

Annual Performance Reports ninety

days after the end of their reporting

period, but no later than June 30th.

Response: States are allowed under

the final formula grants regulation to

submit their Annual Performance

Report, ninety days after the end of their

reporting period, but no later than June

30th. The regulation merely formalizes

the existing policy of States submitting

their required Performance Reports by

June 30th of each year.

2. Comment: Another respondent was

of the opinion that a person who

routinely provides legal representation

to youth in juvenile court should be

added to the State Advisory Group

membership requirement.

Response: Section 223(a)(3) already

requires representation of ‘‘law

enforcement and juvenile justice

agencies’’ including ‘‘counsel for

children and youth’’ on the State

Advisory Group.

3. Comment: With respect to DMC,

States need more time to achieve

compliance because the issue is too

complex. States were given more time to

achieve compliance with DSO,

Separation, and Jail Removal. Several

respondents indicated that more

research is needed before effective

interventions can be designed and

implemented. Respondents expressed

concern that the problem of DMC goes

beyond the juvenile justice system and

other systems need to be addressed. One

respondent suggested that States should

be required to review and address the

effects of legislation on minority overrepresentation. A recommendation was

also made that States’ multi-year

formula grant plans and annual plan

updates should identify and explain any

anticipated action steps from a previous

formula grant plan that have not been

carried out.

Response: States had five years to

reach full compliance on DSO, and eight

to reach full compliance on Jail and

Lockup Removal. Congress initially

addressed DMC in 1988. Congressional

action on the 1992 Reauthorization of

the JJDP Act makes it clear that States

are expected to move forward on DMC.

The OJJDP regulation reflects the

additional priority Congress has

attached to DMC.

The experience of OJJDP and most

States supports the public comment

about the complexity of DMC. OJJDP

recognizes that successful approaches to

DMC include lessons learned from DSO,

Separation, and Jail Removal. For

instance, addressing the relationship

between attitudes and behavior, and

ensuring local ownership of program

initiatives, contributed significantly to

progress on the earlier mandates.

Ultimate success on DMC will, however,

require a concerted and comprehensive

approach that goes beyond the earlier

mandates. Accordingly, the

implementation phase activities set

forth in the regulation acknowledge the

need to look beyond a narrow focus on

police, probation, courts, and

corrections. Meaningful prevention

(including health, mental health,

education and vocational) and

intervention resources must be available

on an equitable basis, and States need

to assess the impact of executive,

legislative, and judicial policies on

DMC.

The final regulation establishes an

expectation that States will examine

legislative initiatives which may

inadvertently contribute to DMC. Also,

the final regulation includes a

modification that has States explain in

their formula grant plans, any

previously slated DMC activities that

were not carried out.

4. Comment: One respondent stated

that there is no difference between a

court intake agency preparing the

advisory report required prior to a

dispositional commitment to a secure

facility for violation of a VCO, and an

intake unit operated by a human service

agency completing the report. Another

respondent questioned whether an

advisory report would be allowable if it

was prepared by a multidisciplinary

review team comprised entirely of court

and law enforcement agency workers.

Other respondents expressed concern

that the report could not be completed

between apprehension and an initial

hearing; that the report would allow a

third party to influence the court’s

decision making process; and, that the

new advisory report requirement makes

the VCO violation process too

restrictive. One commentator was

uncertain about the difference between

a VCO violation and contempt of court.

A question was raised about whether an

advisory report would be required for an

adjudicated delinquent who absconds

from a court-ordered secure treatment

facility. One person recommended that

the regulation contain an explicit

requirement for legal representation of

youth during the VCO violation process.
13332 Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations

Response: The statute requires that

the advisory report be prepared by an

appropriate public agency (other than a

court or law enforcement agency). A

review team composed only of court

and law enforcement officials is

probably not amenable to the term

‘‘multidisciplinary.’’ Nonetheless, if the

team were operating under the auspices

of, and answerable to, an agency other

than a court or law enforcement agency,

preparation of the report by this review

team would be permissible.

The advisory report does not have to

be completed between apprehension

and the initial court hearing. The

advisory report is only required prior to

commitment to a secure facility as a

disposition, viz., post adjudication.

While the report is not binding on the

court, it is intended as an additional,

objective source of information upon

which the court can base its case

planning and decision making. As such,

Congress intended the report to

‘‘influence’’ judicial actions with

respect to status offenders adjudicated

for violating a VCO.

OJJDP disagrees with the comment

that the VCO process is so restrictive

that it is impossible to securely detain

accused or adjudicated VCO violators.

Those portions of the existing regulation

that specifically address the detention of

VCO violators have not been changed.

The changes being made implement

amendments to the JJDP Act that require

due process protections from the very

beginning of the VCO process, and an

advisory report prior to a dispositional

commitment to a secure facility. The

1992 Amendments to the JJDP Act

reflect Congressional concern about the

possible overuse of the VCO exception

in order to incarcerate status offenders

and circumvent the

deinstitutionalization of status offenders

provision of the JJDP Act.

Regarding status offenders charged

with contempt of court for behavior that

would result in the same charge for an

adult, OJJDP agrees that this is not a

status offense. If, however, the court is

using a contempt process in place of the

VCO violation process, OJJDP and the

State would look to see that all of the

VCO requirements had been met before

allowing the VCO exception.

Where allowable under State law,

adjudicated delinquents that abscond

from secure treatment facilities could be

held in a juvenile detention center

without new charges, and without

violating the JJDP Act. In response to the

comment about legal counsel, it is noted

that the current formula grants

regulation requires legal counsel for

youth in VCO cases.

5. Comment: Status offenders in jails

and lockups already violate jail and

lockup removal, and therefore, this

should not be counted as a violation of

DSO. The respondent also assumed that

this did not effect VCO detentions.

Response: Under current regulations,

a status offender or nonoffender

securely detained in a jail or lockup for

less than twenty four hours would

violate the jail and lockup removal

provision of the JJDP Act, but not the

DSO provision. This conflict in the

regulations (issued at different points in

time) is not acceptable. It is the position

of Congress and OJJDP, that there is no

excusable reason for securely detaining

juveniles in a jail or lockup, who are not

being charged with a criminal offense.

Status offenders accused of, or

adjudicated for violating a VCO, remain

status offenders under OJJDP

regulations, and therefore can not be

securely detained in jails and lockups.

6. Comment: A respondent expressed

concern over the sound separation

standard. Specifically, the ‘‘no

conversation possible’’ standard was

criticized as being too vague.

Respondent suggested that sound

separation be expanded to mean ‘‘any

communication from incarcerated

adults.’’ Further, it was recommended

that the regulation should explicitly

indicate that haphazard and accidental

contact are no longer permissible.

Response: The final regulation will

indicate that sound contact means any

oral communication between

incarcerated adults and juveniles. In

response to the 1992 Amendments of

the JJDP Act, ‘‘haphazard and

accidental’’ contact were deleted from

the proposed formula grants regulation.

OJJDP believes this deletion to be

sufficient.

7. Comment: Two respondents

questioned the total amount of time

allowed for the new distance/lack of

ground transportation portion of the

rural area (non-MSA) exception to jail

and lockup removal. Specifically, one

respondent recommended that

‘‘distance’’ be defined as three hours by

automobile, and that the total period of

incarceration be limited to seventy two

hours. This recommendation allows for

the original twenty four hours grace

period plus the new forty eight hours

period provided by Congress, but would

not then recognize weekends and

holidays as currently allowed for in the

statute. The other respondent asserted

that the total period of incarceration

under the distance/lack of ground

transportation provision should not

exceed forty eight hours. A

recommendation was also made that the

regulation require youth specific

admissions screening in connection

with use of the non-MSA exception, and

that continuous visual supervision be

provided by a trained person.

Response: OJJDP stands by its

interpretation of the statute to mean

forty eight hours in addition to the first

twenty four hours ‘‘grace period.’’

Because the statute excludes weekends

and holidays, the total time may exceed

seventy two hours. States are reminded,

however, that each use of the expanded

rural area exception must be carefully

documented. OJJDP concurs with the

comment on youth-specific admissions

screening, but this will be added to the

final regulation as a recommended

practice, not a requirement. The existing

regulation addresses continuous visual

supervision as a recommended practice.

8. Comment: Respondents questioned

the proposal to increase the number of

waivers from three to four, for failure to

achieve full compliance with jail and

lockup removal. Opposition was also

expressed toward revising the existing

criteria used by OJJDP to assess waiver

requests. Specifically, respondents

disagreed with the proposal to modify

the waiver criterion related to the

removal of status and nonoffenders from

adult jails and lockups.

Response: There is only one State that

is possibly in need of another (fourth)

waiver in order to access FY 1993

formula grant funds. Starting with FY

1994 formula grant funds, there is no

longer a waiver provision for failure to

achieve full compliance with jail and

lockup removal.

A preliminary review of the subject

State’s situation suggests that, if a fourth

waiver is needed, the waiver criteria

could be complied with. If a fourth

waiver is needed and justified for this

State, it will be granted in the discretion

of the Administrator. The waiver

provision of the criteria in the existing

regulation are being deleted, as they are

no longer applicable.

9. Comment: The 1992 Amendments

to the JJDP Act restructure State’s

eligibility for formula grant funds, such

that each of the four major mandates is

associated with twenty five percent of

the grant. As amended, the Act also

requires States receiving reduced

allocations for noncompliance to

expend all remaining funds to achieve

compliance, absent a waiver of this

requirement from the Administrator.

One respondent questioned the ability

of States to adequately address the

mandates if all funds must be expended

on one noncompliant mandate. Another

respondent asked OJJDP to clearly

delineate the criteria to be used in

assessing States’ requests for a waiver

from the requirement to expend all
Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations 13333

funds to achieve compliance with the

noncompliant mandate(s), viz., how will

OJJDP determine if a State has achieved

substantial compliance.

Response: The concern about States’

ability to maintain compliance with all

of the major mandates when funds must

be focused on one noncompliant

mandate, is contemplated by the

statutory scheme established by Section

223(c)(3)(B)(ii) of the JJDP Act. A waiver

of the dedicated funding provision can

be granted if the State has achieved

substantial compliance with the

mandate(s) for which funding was

reduced. In addition, the State must

have an unequivocal commitment to

achieving full compliance with the

noncompliant mandate. The final

regulation sets forth specific criteria for

determining whether a State has

achieved substantial compliance want

OJJDP to continue the practice.

10. Comments: The proposed

regulation reflected the statutory

amendment requiring totally separate

staff for juvenile detention facilities

collocated with adult jails and lockups.

In addition, OJJDP proposed eventually

ending the practice of concurring with

State classifications and approval of

juvenile detention facilities located in

the same building as adult jails and

lockups. Several national organizations

responded in support of the proposed

regulation’s position on collocated

facilities. The basis for this support is

that the existing criteria for collocated

facilities, even when fully implemented,

do not ensure adequate protection and

services for juveniles. In the opinion of

these organizations, the existing criteria

do not result in jail and lockup removal.

A number of States on the other hand,

argued that the existing criteria are

adequate, the burgeoning juvenile

detention populations necessitate that

as many options as possible be

available, and that it is essential for

States and local units of government to

retain their discretion in juvenile

detention planning and operations.

Response: The final regulation

attempts to balance the interests

presented on the collocated facility

issue during the public comment

period. Specifically, OJJDP will work

with the States to implement a threeprong approach to collocated facilities

that is consistent with Section 223(a),

Paragraphs (13) and (14) of the JJDP Act.

The first prong involves a formal

assessment of detention needs in a

particular jurisdiction or region prior to

moving ahead with the approval process

for a collocated facility.

OJJDP’s technical assistance provider

will work with jurisdictions interested

in a collocated facility to collect and

analyze the necessary information for

sound juvenile detention services

planning. The second prong involves

strengthened regulatory criteria for

States and OJJDP to use in the approval

and concurrence processes,

respectively. Specifically, OJJDP will

return to its original (1984) standard of

not permitting time-phased use of

spatial areas in collocated juvenile and

adult facilities and will fully implement

the 1992 Amendment to the JJDP Act

requiring totally separate staff for

juvenile detainees. The third prong

consists of a requirement that approved

collocated facilities receive an annual

on-site visit by the State Formula Grant

Agency. The purpose of the visit is to

reassess the facility’s compliance with

the collocated criteria, and to revisit the

need to collocate facilities in the

jurisdiction or region.

Issues Not Addressed by Public

Comments

1. Deadline for Monitoring Reports—

The current regulation says December

31st of each year. Timely submission of

State monitoring reports will be tied to

State eligibility for reverted funds, as is

the case with formula grant plans and

performance reports.

2. The JJDP Act says the State

advisory group ‘‘shall’’ consist of * * *

and the proposed regulation says

‘‘should consider.’’ The final regulation

will reflect this correction.

3. Youth Handgun Safety Act—The

Violent Crime Control and Law

Enforcement Act of 1994 amended the

DSO provision of the JJDP Act to

exclude juveniles charged with handgun

possession. This occurred after

publication of the proposed regulation.

The final regulation will reflect this

change in the definition of status

offender.

Executive Order 12866

This final regulation is 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 sixty 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 requirements.

For the reasons set out in the

preamble, the OJJDP Formula Grants

Regulation, 28 CFR Part 31, is amended

as follows:

PART 31—[AMENDED]

1. The authority citation for Part 31 is

revised to read as follows:

Authority: 42 U.S.C. 5601 et seq.

2. Section 31.3 is revised to read as

follows:

§ 31.3 Formula Grant Plans and

Applications.

Formula Grant Applications for each

fiscal year should be submitted to OJJDP

by August 1 (sixty days prior to the

beginning of the fiscal year) or within

sixty 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 must be

submitted no later than March 31 of the

fiscal year for which the funds are

allocated.

3. Section 31.101 is revised to read as

follows:

§ 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
13334 Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations

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

4. Section 31.102 is amended by

adding two sentences at the end of

paragraph (c) to read as follows:

§ 31.102 State agency structure.

* * * * *

(c) * * * At a minimum, one fulltime 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).

5. Section 31.203 is revised to read as

follows:

§ 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

maintenance of records relating to their

functions.

6. Section 31.301 is amended by

revising paragraphs (a), (c), (d), and (e)

to read as follows:

§ 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.

* * * * *

(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) of the

JJDP Act 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/or 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 1994, be

reallocated to the nonparticipating State

program on September 30 of the fiscal

year for which the funds were

appropriated. Reallocated funds will be

awarded to eligible recipients pursuant

to program announcements published in

the Federal Register.

7. Section 31.302 is amended by

revising paragraphs (a) and (b)(2) to read

as follows:

§ 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 agency for supervising the

preparation and administration of the

plan and has the authority to implement

the plan.

(b) * * *

(2) Shall consider in meeting the

statutory membership requirements and

responsibilities 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; a juvenile or family

court judge; a probation officer; a

juvenile corrections official; a

prosecutor; a person who routinely

provides legal representation to youth in

juvenile court; a representative from an

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.

* * * * *

8. Section 31.303 is amended by

revising paragraphs (a) and (b) to read

as follows:

§ 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)(c), (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
Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations 13335

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.

* * * * *

§ 31.303 [Amended]

9. Section 31.303 is amended by

revising paragraph (c)(3) to read as

follows:

* * * * *

(c) * * *

(3) Federal wards. Apply this

requirement to alien juveniles under

Federal jurisdiction who are held in

State or local facilities.

* * * * *

10. Section 31.303 is amended by

revising paragraph (c)(4) to read as

follows:

* * * * *

(c) * * *

(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.

* * * * *

11. Section 31.303 is amended by

revising paragraphs (d)(1) (i) and (ii) to

read as follows:

* * * * *

(d) * * *

(1) * * *

(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 no 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.

* * * * *

12. Paragraph (d)(2) of § 31.303 is

revised to read as follows:

* * * * *

(d)* * *

(2) Implementation. The requirement

of this provision is to be planned and

implemented immediately by each

State.

* * * * *

13. Paragraph (e)(3) in § 31.303 is

revised to read as follows:

* * * * *

(e)* * *

(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. Juvenile

facilities collocated with adult facilities

are not considered adult jails or lockups

when the criteria set forth in paragraph

(e)(3)(i)(D) of this section are complied

with.

(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 those that are

allowable under paragraph (e)(3)(i)(C) 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) of this

section for the purpose of monitoring

compliance with Section 223(a),

Paragraphs 12(A), (13) and (14) of the

JJDP Act.

(C) A needs based analysis must

precede a jurisdiction’s request for State

approval, and OJJDP concurrence that a

collocated facility qualifies as a juvenile

detention facility. Specifically,

consideration should be given to such

factors as excessive travel time to an

existing juvenile detention center;

crowding in an existing facility (despite

the use of objective detention criteria);

and in areas where there are no juvenile

detention facilities, a measurable

increase in the need for juvenile

detention beds. This list is not

considered exhaustive. 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 efforts toward a continuum of

detention services for juvenile

offenders.

(D) Each of the following four criteria

must be met in order to ensure the

requisite separateness of the two

facilities:

(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
13336 Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations

and the criterion in paragraph

(e)(3)(i)(A) of this section.

(3) Separate staff for the juvenile and

adult populations, including

management, security staff, and direct

care staff. Specialized services staff 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.

(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 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 plan) review and,

through the exercise of its oversight

responsibility, to ensure that the

separate character of the juvenile facility

is maintained by continuing to fully

meet the four criteria set forth in

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

(iii) Collocated juvenile detention

facilities approved by the State and

concurred with by OJJDP on or before

March 31, 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 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)(C) of this section. Unless

otherwise indicated, review of

previously approved collocated

facilities is expected to occur as part of

the State’s regularly scheduled

monitoring activities.

(iv) OJJDP’s concurrence on facilities

considered after March 31, 1995 is

limited to one year and thereafter, on an

annual basis. An on-site review of the

facility must be conducted by the

compliance monitoring staff person(s) in

the State agency administering the JJDP

Act Formula Grants Program. OJJDP’s

concurrence is required annually, and

may involve on-site 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)

(A) through (D) 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 free-standing facility

(single jurisdiction or regional) or other

detention alternatives 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.

(v) In order to receive OJJDP’s initial

and any subsequent concurrences, a

juvenile detention facility approved

after March 31, 1995 must, pursuant to

a written policy and procedure, only

provide secure custody for juvenile

criminal-type offenders; status offenders

accused of violating a VCO; and

adjudicated delinquents and VCO

violators who are awaiting disposition

hearings or transfer to a long term

juvenile correctional facility.

* * * * *

14. Paragraph (e)(4) in § 31.303 is

removed and paragraph (e)(5) is

redesignated as paragraph (e)(4) and

revised to read as follows:

* * * * *

(e) * * *

(4) Jail removal compliance. 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.

* * * * *

15. Paragraph (f)(3)(i) in § 31.303 is

amended by adding a sentence to the

end of the paragraph to read as follows:

* * * * *

(f) * * *

(3) * * *

(i) * * * Prior to issuance of the

order, the juvenile must have received

the full due process rights guaranteed by

the Constitution of the United States.

* * * * *

16. Paragraph (f)(3)(iv) in § 31.303 is

amended by revising the last sentence to

read as follows:

* * * * *

(f) * * *

(3) * * *

(iv) * * * 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.

* * * * *

17. Paragraph (f)(3)(vi) in § 31.303 is

amended by adding three sentences to

the end of the paragraph to read as

follows:

* * * * *

(f) * * *

(3) * * *

(vi) * * * 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.

* * * * *

18. Paragraph (f)(4)(v) in § 31.303 is

amended by revising the last sentence to

read as follows:

* * * * *

(f) * * *

(4) * * *

(v) * * * 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.

* * * * *

19. Paragraph (f)(4)(vi) in § 31.303 is

revised to read as follows:

* * * * *

(f) * * *

(4) * * *
Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations 13337

(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.

* * * * *

20. Paragraph (f)(5) in § 31.303 is

revised to read as follows:

* * * * *

(f) * * *

(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 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 on-site;

(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 VCO provision as

set forth in paragraph (f)(3) of this

section or pursuant to Section 922(x) of

Title 18 United States Code Section or

a similar State law;

(D) the total number of accused status

offenders and nonoffenders, including

out-of-state runaways and Federal

wards, (excluding juveniles held for

VCO violations and Title 18 U.S.C.

Section 922(x) violators) held in any

secure detention or correctional facility

for less than twenty four hours for

purposes other than identification,

investigation, release to parent(s), or

transfer to a nonsecure facility;

(E) the total number of accused status

offenders (including VCO violators but

excluding 922(x) violators) and

nonoffenders securely detained in any

adult jail, lockup, or nonapproved

collocated facility for less than twenty

four hours;

(F) 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 VCO provision or

pursuant to Title 18 U.S.C. Section

922(x);

(G) the total number of status

offenders held in any secure detention

or correctional facility pursuant to the

VCO provision set forth in paragraph

(f)(3) of this section or Title 18 U.S.C.

Section 922(x) violators; and

(H) 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;

(B) The total number of facilities used

to detain or confine both juvenile

offenders and adult criminal offenders

during the past twelve 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 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 security or direct

care staff of the adult portion of the

facility;

(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 and lockups

(including collocated facilities not

concurred with by OJJDP) for less than

six hours for purposes other than
13338 Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations

identification, investigation, processing,

release to parent(s), or transfer to a

juvenile facility;

(H) The total number of adjudicated

juvenile criminal-type offenders held

securely in adult jails or lockups

(including collocated facilities not

concurred with by OJJDP) for any length

of time;

(I) The total number of accused and

adjudicated status offenders (including

VCO violators) and nonoffenders held

securely in adult jails, lockups and

collocated facilities not approved by the

State and 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 twenty four hours in adult jails or

lockups (including collocated facilities

not approved by the State and

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 twenty four hours

but no more than an additional forty

eight hours in adult jails or lockups

(including collocated facilities not

approved by the State and 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 twenty four

hours, but no more than an additional

twenty four hours after the time such

conditions 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, due to adverse weather

conditions.

* * * * *

21. Paragraph (f)(6) introductory text

in § 31.303 is revised to read as follows:

* * * * *

(f) * * *

(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 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.

* * * * *

22. Paragraph (f)(6)(i) in Section

31.303 is revised to read as follows:

* * * * *

(f) * * *

(6) * * *

(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 published in the Federal

Register of January 9, 1981. (Available

from the Office of Juvenile Justice and

Delinquency Prevention, 633 Indiana

Avenue, NW., Washington, DC 20531.)

* * * * *

23. Paragraph (f)(6)(iii)(A) in § 31.303

is removed and paragraphs (f)(6)(iii) (B),

(C), (D), and (E) are redesignated as

paragraphs (f)(6)(iii) (A), (B), (C), and

(D), respectively.

24. Paragraph (f)(7) in Section 31.303

is revised to read as follows:

* * * * *

(f) * * *

(7) Monitoring report exemptions.

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 Act

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 lockups, 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.

* * * * *

25. Paragraph (g) introductory text in

Section 31.303 is revised to read as

follows:

* * * * *

(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
Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations 13339

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.

* * * * *

26. Paragraph (h) in § 31.303 is

amended by adding a sentence at the

end of the paragraph to read as follows:

* * * * *

(h) * * * 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.

* * * * *

27. Paragraph (j) in § 31.303 is revised

to read as follows:

* * * * *

(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). (Available

from the Office of Juvenile Justice and

Delinquency Prevention, 633 Indiana

Avenue, NW., Washington, DC 20531.)

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

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.

* * * * *

28. Section 31.403 is revised to read

as follows:

§ 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 of

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;
13340 Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules and Regulations

(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.

Office of Juvenile Justice and Delinquency

Prevention.

Shay Bilchik,

Administrator.

[FR Doc. 95–5919 Filed 3–9–95; 8:45 am]

BILLING CODE 4410–18–P