[Federal Register Volume 61, Number 129 (Wednesday, July 3, 1996)]
[Proposed Rules]
[Pages 34770-34775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16842]


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DEPARTMENT OF JUSTICE

Office of Juvenile Justice and Delinquency Prevention

28 CFR Part 31

[OJP No. 1091]
RIN 1121-AA39


OJJDP Formula Grants Regulation

AGENCY: Office of Justice Programs, Office of Juvenile Justice and 
Delinquency Prevention.

ACTION: Proposed rule and request for public comment.

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SUMMARY: The Office of Juvenile Justice and Delinquency Prevention 
(OJJDP) is publishing for public comment proposed amendments to its 
Formula Grants Regulation, 28 CFR Part 31. The Formula Grants 
Regulation 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 proposed 
amendments to the existing Regulation provide further clarification and 
guidance to States in the formulation, submission and implementation of 
State Formula Grant plans and determinations of State compliance with 
plan requirements. They are intended to provide additional flexibility 
and greater clarity to participating States with respect to key 
provisions related to the core requirements of the JJDP Act.

DATES: Interested persons are invited to submit written comments which 
must be received on or before August 19, 1996.

ADDRESSES: Address all comments to Mr. Shay Bilchik, Administrator, 
Office of Juvenile Justice and Delinquency Prevention, 633 Indiana 
Avenue NW., Room 742, Washington, DC 20531.

FOR FURTHER INFORMATION CONTACT: Ms. 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: The Office of Juvenile Justice and 
Delinquency Prevention is proposing revisions to the existing 
Regulation, codified at 28 CFR Part 31, and inviting public comment on 
the proposed changes. The proposed changes in the regulatory text 
accomplish the following:

    (1) Revise Sec. 31.303(d)(1)(i) to clarify the level of contact 
that is prohibited between juveniles in a secure custody status 
within an institution and incarcerated adults;
    (2) Revise Sec. 31.303(d)(1)(i) by providing an exception to the 
core requirement of separation with respect to brief, and 
inadvertent contact between juveniles in a secure custody status 
within an institution and incarcerated adults in nonresidential 
areas;
    (3) Revise Sec. 31.303(d)(1)(v) to permit the placement of an 
adjudicated delinquent in an institution with adults once the 
adjudicated delinquent reaches the State's age of full criminal 
responsibility, when authorized by State law;
    (4) Revise Sec. 31.303(e)(2) to permit the placement of an 
accused or adjudicated delinquent juvenile in an adult jail or 
lockup for up to six hours immediately before or after a court 
appearance for processing and transportation purposes;
    (5) Revise Sec. 31.303(e)(3) by eliminating the requirement for 
OJJDP concurrence in State approved collocated juvenile facilities, 
the requirement that a needs-based analysis precede a jurisdiction's 
request for State approval, and to permit time-phased use of 
nonresidential areas of collocated facilities;
    (6) Revise Sec. 31.303(f)(2) to expressly provide that accused 
status offenders can be placed in a secure juvenile detention 
facility for up to twenty-four hours, exclusive of weekends and 
holidays, prior to an initial court appearance and up to twenty-four 
hours, exclusive of weekends and holidays, following an initial 
court appearance;
    (7) Revise Sec. 31.303(f)(3)(vi) to eliminate the regulatory 
recommendation that a multi disciplinary team may be used to satisfy 
the ``public agency'' requirement, under the valid court order 
exception even if some members represent court or law enforcement 
agencies;
    (8) Revise Sec. 31.303(f)(4)(vi) to eliminate the requirement 
that States document and describe in their annual monitoring report 
to OJJDP the specific circumstances surrounding each use of 
distance/ground transportation and weather exceptions to the jail 
and lockup removal requirement;
    (9) Revise Sec. 31.303(f)(5)(i)(C) to define and clarify the 
scope of the exception to the deinstitutionalization of status 
offenders requirement for offenses under ``Sec. 922(x) of Title 18 
or other similar State law'' (relating to possession of handguns by 
juveniles);

[[Page 34771]]

    (10) Revise Sec. 31.303(f)(6)(i) to eliminate portions of the 
section related to funding eligibility for fiscal year 1993 and 
prior years that are no longer applicable;
    (11) Revise Sec. 31.303(f)(6)(ii) to permit States that do not 
have a law, regulation, or court rule prohibiting the incarceration 
of all juvenile offenders in circumstances that would be in 
violation of the separation requirement to be eligible for a finding 
of compliance if reported violations do not constitute a pattern or 
practice and mechanisms are in place to prevent such violations from 
recurring in the future; and
    (12) Revise Sec. 31.303(j) to clarify the purpose of the 
Disproportionate Minority Confinement core requirement.

Contact With Incarcerated Adults

    OJJDP recognizes that there has been a lack of clarity surrounding 
the issue of contact between juveniles and incarcerated adults in 
secure facilities. OJJDP finds that the term ``sight and sound 
contact'' needs to be clarified. In the 1992 amendments to the JJDP 
Act, Congress amended the existing ``regular'' contact standard that 
defined the level of permissible contact between juveniles and 
incarcerated adults by deleting the word ``regular''. OJJDP interpreted 
Congress' intent to be that ``haphazard and accidental contact'' 
between juveniles and incarcerated adults should be prohibited because 
this was the level of contact permitted under the regulation 
implementing the no ``regular contact'' prohibition in effect prior to 
the 1992 amendments. After further review, OJJDP believes that the no 
contact prohibition should be interpreted to preclude the systematic, 
procedural, and condoned contact between juveniles and incarcerated 
adults in secure areas of facilities. Consequently, OJJDP would not 
consider brief and inadvertent or accidental contact between juveniles 
and incarcerated adults in nonresidential areas of a secure facility to 
be a violation of the separation requirement. Specifically, OJJDP 
proposes to amend the regulation to provide that brief and inadvertent 
contact between juveniles and incarcerated adults in secure 
nonresidential areas of a facility such as dining, recreational, 
educational, vocational, health care, sallyports and passageways 
(hallways) should not be considered a violation of the JJDP Act 
separation requirement. However, in any secure residential area of a 
facility, any contact between juvenile offenders and adult inmates is 
prohibited.
    Further, the regulation would provide definitions for sight and 
sound contact to assist in understanding what is permitted under 
Sec. 223(a)(13). Sight contact is defined as clear visual contact 
between incarcerated adults and juveniles in close proximity of each 
other. For example, a detained juvenile who sees an adult inmate who is 
several hundred feet away is not in close proximity to the incarcerated 
adult. In this scenario, the juvenile is not exposed to any conceivable 
harm as a consequence of seeing an adult inmate several hundred feet 
away. A rule of reason should be exercised by jurisdictions in 
assessing whether a juvenile who is exposed visually to an incarcerated 
adult is in close proximity to that adult.
    With respect to sound contact, the regulation would state that 
``direct'' oral communication between incarcerated adults and juveniles 
is prohibited. This addition is intended to alleviate concerns over 
misinterpretation of this provision. The purpose of the provision is to 
prevent incarcerated adults from having direct oral communication with 
juveniles, thereby reducing the likelihood of intimidation and 
harassment. A rule of reason should also be exercised with sound 
contact. Direct oral communication such as conversations and yelling in 
close proximity is clearly prohibited. However, an incarcerated adult 
yelling at a juvenile who is several hundred feet away may not be 
engaged in direct oral communication with the juvenile.

Placement of Juveniles in Adult Facilities

    Under the current regulation, States are prohibited from 
administratively reclassifying and transferring adjudicated delinquents 
to adult (criminal) correctional institutions. OJJDP recognizes that 
State laws are increasingly providing for the mandatory or permissible 
transfer of adjudicated delinquents to adult facilities once the 
delinquent has attained the age of full criminal responsibility under 
State law. Consequently, OJJDP proposes to amend the regulation to 
provide that it is not a violation of the separation requirement to 
transfer an adjudicated delinquent to an adult correctional institution 
once the adjudicated delinquent has reached the age of full criminal 
responsibility established by State law. The proposed regulation would 
permit the placement of an adjudicated delinquent who reaches the age 
of full criminal responsibility in an adult correctional facility only 
when such transfers are required or authorized by State law.
    OJJDP also proposes to amend the regulation to permit the placement 
of an alleged or adjudicated delinquent in an adult jail or lockup for 
up to six hours immediately before or after a court appearance. Several 
States have advised OJJDP that the detention of a juvenile prior to a 
court appearance and the immediate transport of a juvenile after a 
court appearance creates a difficulty if there is more than one 
juvenile before the court on a given day or where separate facilities 
are not available. The secure detention of an alleged or adjudicated 
delinquent in a jail or lockup for up to six hours immediately before 
or after a court appearance would be permissible when circumstances 
warrant such a detention, and provided that such juveniles are 
separated from adult offenders.

Collocated Facilities

    OJJDP currently requires that a needs-based analysis precede a 
jurisdiction's request for State approval and OJJDP's concurrence in 
order for a juvenile detention facility that is collocated with an 
adult jail or lockup to qualify as a separate juvenile detention 
facility. OJJDP finds that this requirement is best left to the State 
to determine whether a needs-based analysis should be required. In 
addition, OJJDP's concurrence with a State agency's decision to approve 
a collocated facility would no longer be required. The elimination of 
the needs-based analysis and OJJDP's concurrence does not negate the 
separation criteria set forth in Sec. 31.303(e)(3)(D). The regularly 
scheduled review of State monitoring systems would insure that the 
facility continues to meet the separate juvenile detention facility 
criteria. Consequently, OJJDP proposes to modify Sec. 31.303(e)(3) to 
reflect the elimination of the needs-based analysis and OJJDP's 
concurrence.
    Under the current regulation, collocated facilities are prohibited 
from sharing common use nonresidential areas. Based on State and local 
input, OJJDP finds that common use nonresidential areas should be 
permissible in collocated facilities. This would require the 
utilization of time-phasing in order to allow both juveniles and adults 
access to available educational, vocational, and recreational areas of 
collocated facilities. The allowance of time-phased use would apply 
only to nonresidential areas in collocated facilities.

Deinstitutionalization of Status Offenders

    OJJDP has found that confusion exists over the secure detention of 
accused status offenders and non-offenders. For purposes of 
clarification, OJJDP is adding a paragraph at the end of 
Sec. 31.303(f)(2) to state clearly that it is permissible to hold an 
accused status

[[Page 34772]]

offender or a nonoffender in a secure juvenile detention facility for 
up to twenty-four hours, exclusive of weekends and holidays, prior to 
an initial appearance and up to twenty-four hours, exclusive of 
weekends and holidays, after an initial court appearance.

Valid Court Order

    Under the current statute and regulation, an independent public 
agency (other than a court or law enforcement agency) is required to 
prepare and submit a written report to a court that is considering an 
order that directs or authorizes the placement of a status offender in 
a secure facility for the violation of a valid court order. A multi 
disciplinary review team that operates independently of a court is 
described in the regulation as one option for meeting the requirement, 
even where some members of the team may be law enforcement or court 
agency staff. Pretrial Service agencies are another option for 
jurisdictions to consider to meet the criteria of ``other than a court 
or law enforcement agency.'' These offices operate in various 
jurisdictions to assess and evaluate individuals who are before the 
court for a determination on pretrial release or custody. The intent of 
this multi disciplinary provision was to provide States with an example 
of a public agency that would meet the criteria where some members of a 
team were employed by the courts and/or law enforcement. Because the 
wording of this provision had led some States to the conclusion that 
multi disciplinary teams are required, the provision would be deleted 
from the regulation.

Removal Exception

    States are required to document and describe, in their annual 
monitoring report to OJJDP, the specific circumstances surrounding each 
individual use of the distance/ground transportation and weather 
exceptions to the jail and lockup removal requirement. OJJDP finds this 
requirement to be overly burdensome on the States and therefore 
proposes that it be deleted from the regulation.

Reporting Requirement

    The JJDP Act provides that juveniles may be securely detained or 
confined pursuant to 18 U.S.C. 922(x) or a similar State law. Section 
922(x) was added to the Federal Criminal Code by the Youth Handgun 
Safety Act that was passed as a part of the Violent Crime Control and 
Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 
(1994), codified as amended at 42 U.S.C. 13701 et seq. Specifically, 
Sec. 922(x) makes it a Federal delinquent offense for a juvenile to 
possess a handgun. The possession of a handgun by a juvenile is, 
however, a status offense in those States where possession of a handgun 
by an adult is permitted. Consequently, the Youth Handgun Safety Act 
specifically amended the JJDP Act to exclude from the 
deinstitutionalization of status offenders requirement a juvenile who 
has violated Sec. 922(x) or a similar State law. For the purpose of 
clarification, where Sec. 922(x) initially appears in the regulation, 
it is described as a federal law prohibiting the possession of a 
handgun by a juvenile and specifically excluding such a violation, or 
the violation of a similar State law, from the coverage of the 
deinstitutionalization of status offenders requirement.

Compliance

    OJJDP would delete the first two sentences of Sec. 31.303(f)(6)(i) 
because it pertains to States substantially complying with the 
deinstitutionalization of status offenders core requirement in fiscal 
year 1993 and prior years. The substantial compliance criteria allowed 
States to be eligible for formula grant funding during these years if 
the State had achieve a seventy five percent reduction in the aggregate 
number of status offenders and nonoffenders held in secure detention or 
correctional facilities and had made an unequivocal commitment to 
achieving full compliance. Because this standard does not apply to 
fiscal years beyond 1994, OJJDP would remove it from the regulation. 
However, the portion of the section that defines full compliance would 
remain.
    Under the current regulation, compliance with the separation 
requirement is considered to be achieved when a State can demonstrate 
that in the last monitoring report, covering a full 12 months of data, 
no juveniles were incarcerated in circumstances in violation of the 
separation requirement. Also, compliance can be achieved where a State 
has a law, regulation, court rule, or other established executive or 
judicial policy clearly prohibiting the incarceration of juvenile 
offenders in circumstances that would be in violation of the separation 
requirement, and violations reported do not constitute a pattern or 
practice in the State. However, a State that has no law or policy that 
mirrors the JJDP Act separation requirement could not be in compliance 
if any juvenile was held in violation of the separation requirement. 
OJJDP proposes to modify this policy in order not to unfairly penalize 
States that have not enacted laws, rules, regulations or policies 
prohibiting the incarceration of all juvenile offenders under 
circumstances that would be in violation of the separation requirement. 
OJJDP proposes a single standard applicable to all States regardless of 
whether a law, regulation, rule or policy exists that prohibits the 
detention of juveniles with incarcerated adults. Specifically, 
compliance can be established under circumstances in which the 
instances do not indicate a pattern or practice and mechanisms or plans 
to address exist within the State to ensure that such instances are 
unlikely to recur in the future.

Minority Detention and Confinement

    Several States have expressed concern over the Disproportionate 
Minority Confinement (Sec. 223(a)(23)) core requirement of the JJDP 
Act. Specifically, this core requirement has been criticized as 
requiring the establishment of numerical standards or quotas in order 
for a State to achieve or maintain compliance. This is not the purpose 
of the statute or its implementing regulation. In order to respond to 
this concern, two sentences have been added to Sec. 31.303(j) of the 
regulation to state specifically that the purpose of the statute and 
regulation is to encourage States to address, programmatically, any 
features of its justice system that may account for the 
disproportionate detention or confinement of minority juveniles. The 
section states clearly that the Disproportionate Minority Confinement 
core requirement neither requires nor establishes numerical standards 
or quotas in order for a State to achieve or maintain compliance.

Executive Order 12866

    This proposed rule 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 entitlement, 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 No. 12866. The Office 
of Management and

[[Page 34773]]

Budget has waived its review process for this rule under Executive 
Order 12866.

Regulatory Flexibility Act

    This proposed rule, if promulgated, will not have a ``significant'' 
economic impact on a substantial number of small ``entities'' as 
defined by the Regulatory Flexibility Act. This action is intended to 
relieve existing requirements in the Formula Grants program and to 
clarify other provisions so as to promote compliance with its 
provisions by States participating in the program.

Paperwork Reduction Act

    No collections of information requirements are contained in or 
affected by this regulation pursuant to the Paperwork Reduction Act, 
codified at 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 30, States must submit 
Formula Grant Program 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, Grant programs.

    For the reasons set forth in the preamble, it is proposed to amend 
the OJJDP Formula Grants Regulation, 28 CFR Part 31, as follows:

PART 31--[AMENDED]

    1. The authority citation for Part 31 would continue to read as 
follows:

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

    2. Section 31.303 is amended by revising paragraphs (d)(1)(i) and 
(v) to read as follows:


Sec. 31.303  Substantive requirements.

* * * * *
    (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'' includes any physical or 
sustained sight or sound contact between juveniles in a secure custody 
status and incarcerated adults, including inmate trustees. A juvenile 
in a secure custody status is one who is physically detained or 
confined in a locked room or other area set aside or used for the 
specific purpose of securely detaining persons who are in law 
enforcement custody. Secure detention or confinement may result either 
from being placed in such a room or area and/or from being physically 
secured to a cuffing rail or other stationary object. Sight contact is 
defined as clear visual contact between incarcerated adults and 
juveniles within close proximity to each other. Sound contact is 
defined as direct 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, admissions, sleeping, 
toilet and shower, and other areas, as appropriate. Brief and 
inadvertent or accidental contact between juveniles in a secure custody 
status and incarcerated adults, in secure nonresidential areas of a 
facility such as dining, recreational, educational, vocational, health 
care, sally ports or other entry areas, and passageways (hallways) 
would not require a State to document or report such contact as a 
violation. However, any contact in a residential area of a secure 
facility between juveniles and incarcerated adults would be a 
reportable violation.
* * * * *
    (v) Assure that adjudicated delinquents are not reclassified 
administratively and transferred to an adult (criminal) correctional 
authority to avoid the intent of separating juveniles from adult 
criminals in jails or correctional facilities. A State is not 
prohibited from placing or transferring an alleged or adjudicated 
delinquent who reaches the State's age of full criminal responsibility 
to an adult facility when required or authorized by State law. However, 
the administrative transfer, without statutory direction or 
authorization, of a juvenile offender to an adult correctional 
authority, or a transfer within a mixed juvenile and adult facility for 
placement with adult criminals, either before or after a juvenile 
reaches the age of full criminal responsibility, is prohibited. A State 
is also precluded from transferring adult offenders to a juvenile 
correctional authority for placement in a juvenile facility. This 
neither prohibits nor restricts the waiver or transfer of a juvenile to 
criminal court for prosecution, in accordance with State law, for a 
criminal felony violation, nor the detention or confinement of a waived 
or transferred criminal felony violator in an adult facility.
* * * * *
    3. Section 31.303(e) is amended by revising paragraphs (e)(2), 
(e)(3) introductory text and (e)(3)(i) to read as follows:


Sec. 31.303  Substantive requirements.

* * * * *
    (e) * * *
    (2) Describe the barriers that a State faces in removing all 
juveniles from adult jails and lockups. This requirement excepts only 
those alleged or adjudicated juvenile delinquents placed in a jail or a 
lockup for up to six hours from the time they enter a secure custody 
status or immediately before or after a court appearance, 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 
paragraphs (e)(3)(i)(C)(1) through (4) criteria established in 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 
the specialized services that are allowable under paragraph 
(e)(3)(i)(C)(3) of this section.
    (B) The State must determine whether a collocated facility 
qualifies as a separate juvenile detention facility under the four 
criteria set forth in paragraphs (e)(3)(i)(C)(1) through (4) of this 
section for the purpose of monitoring compliance with 
Sec. 223(a)(12)(A), (13) and (14) of the JJDP Act.
    (C) 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) Separation between juveniles and adults such that there could 
be no sight or sound contact between juveniles and incarcerated adults 
in the facility. Separation can be achieved architecturally or through 
time-phasing of common use nonresidential areas; and

[[Page 34774]]

    (2) Separate juvenile and adult programs, including recreation, 
education, vocation, counseling, dining, sleeping, and general living 
activities. There must be an independent and comprehensive operational 
plan for the juvenile detention facility which provides for a full 
range of separate program services. No program activities may be shared 
by juveniles and incarcerated adults. Time-phasing of common use 
nonresidential areas is permissible to conduct program activities. 
Equipment and other resources may be used by both populations subject 
to security concerns; and
    (3) Separate staff for the juvenile and adult populations, 
including management, security, and direct care staff. Staff providing 
specialized services (medical care, 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, OJJDP encourages States to 
establish administrative requirements that authorize the State to 
review the facility's physical plant, staffing patterns, and programs 
in order to approve the collocated facility based on prevailing 
national juvenile detention standards.
* * * * *
    4. Section 31.303 is amended by revising paragraphs (f)(2), 
(3)(vi), and (4)(vi) to read as follows:


Sec. 31.303  Substantive requirements.

* * * * *
    (f) * * *
    (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. 
Accused status offenders or non offenders in lawful custody can be held 
in a secure juvenile detention facility for up to twenty-four hours, 
exclusive of weekends and holidays, prior to an initial court 
appearance and for an additional twenty-four hours, exclusive of 
weekends and holidays, following a court appearance.
    (3) * * *
    (vi) In entering any order that directs or authorizes the placement 
of a status offender 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 obtain and review a written 
report 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).
* * * * *
    (4) * * *
    (vi) Pursuant to section 223(a)(14) of the JJDP Act, the non-MSA 
(low population density) exception to the jail and lockup removal 
requirement as described in paragraphs (f)(4)(i) through (v) of this 
section will remain in effect through 1997, and will allow for secure 
custody beyond the twenty-four-hour 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, life-threatening 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.
* * * * *
    5. Section 31.303(f)(5)(i)(C) is revised to read as follows:


Sec. 31.303  Substantive requirements.

* * * * *
    (f) * * *
    (5) * * *
    (i) * * *
    (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 (which prohibits the possession of a handgun by a juvenile), or a 
similar State law. A juvenile who violates this statute, or a similar 
state law, is excepted from the deinstitutionalization of status 
offenders requirement;
* * * * *
    6. Section 31.303 is amended by revising paragraphs (f)(6)(i) and 
(ii) to read as follows:


Sec. 31.303  Substantive requirements.

* * * * *
    (f) * * *
    (6) * * *
    (i) Full compliance with section 223(a)(12)(A) is achieved when a 
State has removed 100 percent of status offenders and nonoffenders 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 were in violation of section 223(a)(13); or
    (B)(1) The instances reported under paragraph (f)(6)(ii)(A) of this 
section do not indicate a pattern or practice but rather constitute 
isolated instances; and
    (2) Existing mechanisms or plans to address these incidences are 
such that they are unlikely to recur in the future.
* * * * *
    7. Section 31.303 is amended by inserting the following sentences 
after the 2nd sentence of paragraph (j) introductory text:

[[Page 34775]]

Sec. 31.303  Substantive requirements.

* * * * *
    (j) * * * The purpose of the statute and regulation is to encourage 
States to address, programmatically, any features of its justice 
system, and related laws and policies, which may account for the 
disproportionate detention or confinement of minority juveniles in 
secure detention facilities, secure correctional facilities, jails and 
lockups. The Disproportionate Minority Confinement core requirement 
neither establishes nor requires numerical standards or quotas in order 
for a State to achieve or maintain compliance. * * *
* * * * *
    Dated: June 26, 1996.
Shay Bilchik,
Administrator, Office of Juvenile Justice and Delinquency Prevention.
[FR Doc. 96-16842 Filed 7-2-96; 8:45 am]
BILLING CODE 4410-18-P