[Federal Register Volume 60, Number 47 (Friday, March 10, 1995)]
[Rules and Regulations]
[Pages 13330-13340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5919]
[[Page 13329]]
_______________________________________________________________________
Part VI
Department of Justice
_______________________________________________________________________
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
_______________________________________________________________________
28 CFR Part 31
Formula Grants; Final Rule
Federal Register / Vol. 60, No. 47 / Friday, March 10, 1995 / Rules
and Regulations
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[[Page 13330]]
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.
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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 [[Page 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 criminal-type 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 over-representation. 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.
[[Page 13332]]
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 [[Page 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
three-prong 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:
Sec. 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:
Sec. 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
[[Page 13334]] 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:
Sec. 31.102 State agency structure.
* * * * *
(c) * * * At a minimum, one full-time Juvenile Justice Specialist
must be assigned to the Formula Grants Program by the State agency.
Where the State does not currently provide or maintain a full-time
Juvenile Justice Specialist, the plan must clearly establish and
document that the program and administrative support staff resources
currently assigned to the program will temporarily meet the adequate
staff requirement, and provide an assurance that at least one full-time
Juvenile Justice Specialist will be assigned to the Formula Grants
Program by the end of FY 1995 (September 30, 1995).
5. Section 31.203 is revised to read as follows:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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
[[Page 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.
* * * * *
Sec. 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 Sec. 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 Sec. 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 [[Page 13336]] 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 31.303 is revised to read as
follows:
* * * * *
(f) * * *
(4) * * * [[Page 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, 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. 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 Sec. 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 on-site;
(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 [[Page 13338]] 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 Sec. 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 set-aside funds and Indian tribe
pass-through 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 pass-through 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 Sec. 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 [[Page 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 Sec. 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 Sec. 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 Multi-Year 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:
Sec. 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; [[Page 13340]]
(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
