[Federal Register Volume 60, Number 77 (Friday, April 21, 1995)]
[Rules and Regulations]
[Pages 19847-19851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9826]
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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; Correction
Date: April 13, 1995.
AGENCY: Department of Justice, Office of Justice Programs, Office of
Juvenile Justice and Delinquency Prevention.
ACTION: Correction to final regulation.
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SUMMARY: This document contains corrections to the Final Regulation,
revising 28 CFR part 31, which was published in the Federal Register on
Friday, March 10, 1995, (60 FR 13330). The regulation revisions
provided clarification and guidance to States in the formulation,
submission and implementation of the State Formula Grants Program under
Part B of Title II of the Juvenile Justice and Delinquency Act of 1974,
as amended by the Juvenile Justice and Delinquency Prevention
Amendments of 1992 (Pub. L. 102-586, November 18, 1992).
The 1992 Amendments reauthorize and modify the Federal assistance
program to State, local governments, and private not-for-profit
agencies for the prevention and control of delinquency and improvement
of the juvenile justice system. This final revision to the existing
regulation provides clarification and guidance to States in the
formulation, submission, and implementation of State Formula Grants
Program 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 deinstitutionalization, separation, jail and lockup removal, and
disproportionate minority confinement plan requirements 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 (OJJDP), 633 Indiana Avenue NW., Room 543,
Washington, D.C. 20531; (202) 307-5924.
SUPPLEMENTARY INFORMATION: The corrections include the requirement that
collocated juvenile detention facilities approved by the State and
concurred with by OJJDP on or before June 30, 1995, be reviewed against
the regulatory criteria and OJJDP policies in effect at the time of the
initial approval and concurrence. Facilities approved after the
effective date of this regulation and prior to July 1, 1995, will be
reviewed against the regulatory criteria in effect on the day before
the effective date of this regulation. For those collocated juvenile
detention facilities considered after June 30, 1995, OJJDP's
concurrence is limited to one year and, thereafter, will be reviewed on
an annual basis. The requirement that in order to receive OJJDP's
initial and subsequent concurrences, a collocated juvenile detention
facility must only provide secure custody for juvenile criminal-type
offenders, status offenders accused of violating a valid court order,
and adjudicated delinquents and valid court order violators who are
awaiting disposition hearings or transfer to a long term juvenile
correctional facility, has been eliminated.
Need for Correction
As published in the Federal Register on March 10, 1995, (60 FR
13330), the Final Regulation was an earlier draft version that is
materially different from the final draft that was intended to be
published. These errors are in need of correction.
Correction of Publication
Accordingly, the Final Regulation, as published in the Federal
Register on March 10, 1995, which was the subject of FR Doc. 95-5919,
is corrected as follows:
Sec. 31.301 [Corrected]
Paragraph 1. On page 13334 in amendatory instruction 6, paragraph
(e) of Sec. 31.301 was revised. Paragraph (e) of Sec. 31.301 in the
second column, line 30, the numerals ``1994'' are corrected to read
``1995''.
Sec. 31.302 [Corrected]
Paragraph 2. On page 13334 in amendatory instruction 7, paragraph
(b)(2) of Sec. 31.302 was revised. Paragraph (b)(2) of Sec. 31.302 is
corrected to read as follows:
* * * * *
(b) * * *
(2) Should 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; representatives of juvenile justice
agencies, including a juvenile or family court judge, a probation
officer, a prosecutor, and a person who routinely provides legal
representation to youth in juvenile court; a public agency
representative concerned with delinquency prevention and treatment; a
representative from a private, non-profit 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 problems of school violence and vandalism and alternatives
to expulsion and suspension; and persons with knowledge concerning
learning disabilities, child abuse and neglect, and youth violence.
* * * * *
Sec. 31.303 [Corrected]
Paragraph 3. On page 13335, in the second column, in amendatory
instruction 11, paragraph (d)(l)(i) of Sec. 31.303 was revised.
Paragraph (d)(1)(i) of Sec. 31.303, line ten, the word ``no'' is
corrected to read ``any''.
Paragraph 4. On page 13335 in amendatory instruction 13, paragraph
(e)(3) of Sec. 31.303 was revised. Paragraph (e)(3) of Sec. 31.303 is
corrected by removing (e)(3)(v). As corrected, Sec. 31.303(e)(3) reads
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, except as otherwise provided under the Act and
implementing OJJDP regulations. Juvenile facilities collocated with
these adult facilities are considered adult jails or lockups unless the
paragraph (e)(3)(i)(D) (1)-(4) criteria established in this section are
complied with and the determinations and concurrences set forth in
paragraph (e)(3) (ii), (iii), and (iv) of this section have been made.
(A) A collocated facility is a juvenile facility that is 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 [[Page 19848]] is considered ``related''
when it shares physical features such as walls and fences services
beyond mechanical services (heating, air conditioning, water and
sewer), or the specialized services that are allowable under paragraph
(e)(3)(i)(D)(3) of this section.
(B) The State, with OJJDP concurrence, must determine whether a
collocated facility qualifies as a separate juvenile detention facility
under the four criteria set forth in paragraph (e)(3)(i)(D) (1)-(4) of
this section for the purpose of monitoring compliance with section
223(a) (12)(A), (13), and (14) of the JJDP Act.
(C) A needs based analysis must precede a jurisdiction's request
for State approval and be included with the request for OJJDP
concurrence that a collocated facility qualifies as a juvenile
detention facility. The needs based analysis should include, but is not
limited to, consideration of such factors as excessive travel time to
an existing juvenile detention center, crowding in an existing facility
(despite the use of objective detention criteria), obsolescence of an
existing facility, and, in areas where there are no juvenile detention
facilities, a measurable increase in the need for juvenile detention
beds. OJJDP's technical assistance provider to the States should be
involved in the needs based analysis (without cost to the State or
local jurisdiction). The needs based analysis must take into
consideration and be coordinated with the State's plans and programs
designed to establish a continuum of detention care and to assist
detention facilities to provide a full range of services for juvenile
offenders.
(D) Each of the following four criteria must be met in order to
ensure the requisite separateness of a juvenile detention facility that
is collocated with an adult jail or lockup:
(1) Total separation between juvenile and adult facility spatial
areas such that there could be no sight or sound contact between
juveniles and incarcerated adults in the facility. Total separation of
spatial areas can be achieved architecturally, and must provide for no
common use areas (time-phasing is not permissible);
(2) Total separation in all juvenile and adult program areas,
including recreation, education, counseling, dining, sleeping, and
general living activities. There must be an independent and
comprehensive operational plan for the juvenile detention center which
provides for a full range of separate program services. No program
activities may be shared by juveniles and incarcerated adults. However,
equipment and other resources may be used by both populations subject
to security concerns and the criterion in paragraph (e)(3)(i)(D)(1) of
this section;
(3) Separate staff for the juvenile and adult populations,
including management, security, and direct care staff. Staff providing
specialized services (food service, laundry, maintenance and
engineering, etc.), who are not normally in contact with detainees, or
whose infrequent contacts occur under conditions of separation of
juveniles and adults, can serve both populations (subject to State
standards or licensing requirements). The day to day management,
security and direct care functions of the juvenile detention center
must be vested in a totally separate staff, dedicated solely to the
juvenile population within the collocated facilities; and
(4) In States that have established standards or licensing
requirements for juvenile detention facilities, the juvenile facility
must meet the standards (on the same basis as a free-standing juvenile
detention center) and be licensed as appropriate. If there are no State
standards or licensing requirements, then the jurisdiction must
cooperate in a preapproval review of its physical plant, staffing
patterns, and programs by an organization selected and compensated by
OJJDP. This review will be based on prevailing national juvenile
detention standards, and will inform the State's approval process and
concurrence by OJJDP.
(ii) The State must initially determine that the four criteria are
fully met. Upon such determination, the State must submit to OJJDP a
request for concurrence with the State's finding that a separate
juvenile detention facility exists. To enable OJJDP to assess the
separateness of the two facilities, sufficient documentation must
accompany the request to demonstrate that each criterion has been met.
It is incumbent upon the State to make the initial determination
through an on-site facility (or full construction and operations plan)
review and, through the exercise of its oversight responsibility, to
ensure that the separate character of the juvenile detention facility
is maintained by continuing to fully meet the four criteria set forth
in paragraphs (e)(3)(i)(D) (1)-(4) of this section.
(iii) Collocated juvenile detention facilities approved by the
State and concurred with by OJJDP on or before June 30, 1995, are to be
reviewed against the regulatory criteria and OJJDP policies in effect
at the time of the initial approval and concurrence, except that
facilities approved after the effective date of this regulation, but
prior to July 1, 1995, shall be reviewed against the regulatory
criteria in effect on the day before the effective date of this
regulation, and except that all collocated facilities are subject to
the separate staff requirement established by the 1992 Amendments to
the JJDP Act, as set forth in paragraph (e)(3)(i)(D)(3) 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 for facilities considered after June 30,
1995, is limited to one year and thereafter, will be reviewed on an
annual basis. An annual on-site review of the facility must be
conducted by the compliance monitoring staff person(s) representing or
employed by the State agency administering the JJDP Act Formula Grants
Program. OJJDP's concurrence is required annually, and may involve on-
site review by OJJDP staff. The purpose of the annual review is to
determine if compliance with the criteria set forth in paragraph
(e)(3)(i)(D) (1)-(4) of this section is being maintained, and to assess
the continuing need for the collocated facility and the jurisdiction's
long term plan to move to a free-standing facility (single jurisdiction
or regional) or other detention alternative, unless the juvenile
detention center is part of a justice center, in which case the annual
review will look solely at the four regulatory criteria. An example of
a justice center is a building or a set of buildings in which various
agencies are housed, such as law enforcement, courts, State's
attorneys, public defenders, and probation, in addition to an adult
jail or lockup and a juvenile detention facility.
* * * * *
Paragraph 5. On page 13337 in amendatory instruction 20, paragraph
(f)(5) of section 31.303 was revised. Paragraph (f)(5) of Sec. 31.303
is corrected by removing (f)(5)(i)(D) and redesignating paragraphs
(f)(5)(i) (E), (F), (G) and (H) as paragraphs (f)(5)(i) (D), (E), (F)
and (G), respectively. As corrected, Sec. 31.303(f)(5) reads as
follows:
* * * * *
(f) * * *
(5) Reporting requirement. The State shall report annually to the
Administrator 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 [[Page 19849]] months.
The report shall be submitted to the Administrator by December 31 of
each year.
(i) To demonstrate the extent of compliance with section
223(a)(12)(A) of the JJDP Act, the report must include, at a minimum,
the following information for the current reporting period:
(A) Dates covered by the current reporting period;
(B) Total number of public and private secure detention and
correctional facilities, the total number reporting, and the number
inspected 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 24 hours (not
including weekends or holidays), excluding those held pursuant to the
valid court order provision as set forth in paragraph (f)(3) of this
section, or pursuant to section 922(x) of Title 18, United States Code,
or a similar State law;
(D) The total number of accused status offenders (including valid
court order violators, out of state runaways and Federal wards, but
excluding Title 18 U.S.C. 922(x) violators) and nonoffenders securely
detained in any adult jail, lockup, or nonapproved collocated facility
for any length of time;
(E) The total number of adjudicated status offenders and
nonoffenders, including out-of-state runaways and Federal wards, held
for any length of time in a secure detention or correctional facility,
excluding those held pursuant to the valid court order provision or
pursuant to Title 18 U.S.C. 922(x);
(F) The total number of status offenders held in any secure
detention or correctional facility pursuant to the valid court order
provision set forth in paragraph (f)(3) of this section; and
(G) The total number of juvenile offenders held pursuant to Title
18 U.S.C. 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 12
months and the number inspected on-site;
(C) The total number of facilities used for the secure detention
and confinement of both juvenile offenders and adult criminal offenders
which did not provide sight and sound separation;
(D) The total number of juvenile offenders and nonoffenders not
separated from adult criminal offenders in facilities used for the
secure detention and confinement of both juveniles and adults;
(E) The total number of juvenile detention centers located within
the same building or on the same grounds as an adult jail or lockup
that have been concurred with by OJJDP, including a list of such
facilities;
(F) The total number of juveniles detained in collocated facilities
concurred with by OJJDP that were not separated from the management,
security, or direct care staff of the adult jail or lockup;
(G) The total number of juvenile detention centers located within
the same building or on the same grounds as an adult jail or lockup
that have not been concurred with by OJJDP, including a list of such
facilities; and
(H) The total number of juveniles detained in collocated facilities
not approved by the State and concurred with by OJJDP, that were not
sight and sound separated from adult criminal offenders.
(iv) To demonstrate the extent of compliance with section
223(a)(14) of the JJDP Act, the report must include, at a minimum, the
following information for the current reporting period:
(A) Dates covered by the current reporting period;
(B) The total number of adult jails in the State AND the number
inspected 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, lockups and collocated facilities not
concurred with by OJJDP for less than six hours for purposes other than
identification, investigation, processing, release to parent(s),
transfer to court, or transfer to a juvenile facility following initial
custody;
(H) The total number of adjudicated juvenile criminal-type
offenders held securely in adult jails, lockups and collocated
facilities not concurred with by OJJDP for any length of time;
(I) The total number of accused and adjudicated status offenders
(including valid court order violators) and nonoffenders held securely
in adult jails, lockups and collocated facilities not concurred with by
OJJDP for any length of time;
(J) The total number of adult jails, lockups, and collocated
facilities not concurred with by OJJDP, in areas meeting the ``removal
exception'' as noted in paragraph (f)(4) of this section, including a
list of such facilities and the county or jurisdiction in which each is
located;
(K) The total number of juveniles accused of a criminal-type
offense who were held in excess of six hours but less than 24 hours in
adult jails, lockups and collocated facilities not concurred with by
OJJDP pursuant to the ``removal exception'' as set forth in paragraph
(f)(4) of this section;
(L) The total number of juveniles accused of a criminal-type
offense who were held in excess of 24 hours but not more than an
additional 48 hours in adult jails, lockups and collocated facilities
not concurred with by OJJDP pursuant to the ``removal exception'' as
noted in paragraph (f)(4) of this section, due to conditions of
distance or lack of ground transportation; and
(M) The total number of juveniles accused of a criminal-type
offense who were held in excess of 24 hours, but not more than an
additional 24 hours after the time such conditions as adverse weather
allow for reasonably safe travel, in adult jails, lockups and
collocated facilities not concurred with by OJJDP, in areas meeting the
``removal exception'' as noted in paragraph (f)(4) of this section.
* * * * *
Paragraph 6. On page 13338 in amendatory instruction 23, paragraph
(f)(6)(iii)(A) in Sec. 31.303 was removed and paragraphs (f)(6)(iii)
(B), (C), (D), and (E) of Sec. 31.303 were redesignated as paragraphs
(f)(6)(iii) (A), (B), (C), and (D) of Sec. 31.303, respectively.
Redesignated [[Page 19850]] paragraph (f)(6)(iii)(B) of Sec. 31.303 is
corrected to read as follows:
* * * * *
(f) * * *
(6) * * *
(iii) * * *
(B) Full compliance with de minimis exceptions is achieved when a
State demonstrates that it has met the standard set forth in either of
paragraphs (f)(6)(iii)(B) (1) or (2) of this section:
(1) Substantive de minimis standard. To comply with this standard
the State must demonstrate that each of the following requirements have
been met:
(i) State law, court rule, or other statewide executive or judicial
policy clearly prohibits the detention or confinement of all juveniles
in circumstances that would be in violation of section 223(a)(14);
(ii) All instances of noncompliance reported in the last submitted
monitoring report were in violation of or departures from, the State
law, rule, or policy referred to in paragraph (f)(6)(iii)(B)(1)(i) of
this section;
(iii) The instances of noncompliance do not indicate a pattern or
practice but rather constitute isolated instances;
(iv) Existing mechanisms for the enforcement of the State law,
rule, or policy referred to in paragraph (f)(6)(iii)(B)(1)(i) of this
section are such that the instances of noncompliance are unlikely to
recur in the future; and
(v) An acceptable plan has been developed to eliminate the
noncompliant incidents and to monitor the existing mechanism referred
to in paragraph (f)(6)(iii)(B)(1)(iv) of this section.
(2) Numerical de minimis standard. To comply with this standard the
State must demonstrate that each of the following requirements under
paragraphs (f)(6)(iii)(B)(2) (i) and (ii) of this section have been
met:
(i) The incidents of noncompliance reported in the State's last
submitted monitoring report do not exceed an annual rate of 9 per
100,000 juvenile population of the State; and
(ii) An acceptable plan has been developed to eliminate the
noncompliant incidents through the enactment or enforcement of State
law, rule, or statewide executive or judicial policy, education, the
provision of alternatives, or other effective means.
(iii) Exception. When the annual rate for a State exceeds 9
incidents of noncompliance per 100,000 juvenile population, the State
will be considered ineligible for a finding of full compliance with de
minimis exceptions under the numerical de minimis standard unless the
State has recently enacted changes in State law which have gone into
effect and which the State demonstrates can reasonably be expected to
have a substantial, significant and positive impact on the State's
achieving full (100%) compliance or full compliance with de minimis
exceptions by the end of the monitoring period immediately following
the monitoring period under consideration.
(iv) Progress. Beginning with the monitoring report due by December
31, 1990, any State whose prior full compliance status is based on
having met the numerical de minimis standard set forth in paragraph
(f)(6)(iii)(B)(2)(i) of this Sec. 31.303, must annually demonstrate, in
its request for a finding of full compliance with de minimis
exceptions, continued and meaningful progress toward achieving full
(100%) compliance in order to maintain eligibility for a continued
finding of full compliance with de minimis exceptions.
(v) Request submission. Determinations of full compliance and full
compliance with de minimis exceptions are made annually by OJJDP
following submission of the monitoring report due by December 31 of
each calendar year. Any State reporting less than full (100%)
compliance in any annual monitoring report may request a finding of
full compliance with de minimis exceptions under paragraph
(f)(6)(iii)(B) (1) or (2) of this section. The request may be submitted
in conjunction with the monitoring report, as soon thereafter as all
information required for a determination is available, or be included
in the annual State plan and application for the State's Formula Grant
Award.
* * * * *
Paragraph 7. On page 13338 in amendatory instruction 23, paragraph
(f)(6)(iii)(D) of Sec. 31.303 was redesignated as paragraph
(f)(6)(iii)(C) of Sec. 31.303. Redesignated paragraph (f)(6)(iii)(C) of
Sec. 31.303 is corrected to read as follows:
* * * * *
(f) * * *
(6) * * *
(iii) * * *
(C) Waiver. Failure to achieve full compliance as defined in this
section shall terminate any State's eligibility for FY 1993 and prior
year formula grants funds unless the Administrator of OJJDP waives
termination of the State's eligibility. In order to be eligible for a
waiver of termination, a State must request a waiver and demonstrate
that it meets the standards set forth in paragraph (f)(6)(iii)(C) (1)
through (7) of this section:
(1) Agrees to expend all of its formula grant award except planning
and administration, advisory group set-aside, and Indian tribe pass-
through funds, to achieve compliance with section 223(a)(14); and
(2) Removed all status and nonoffender juveniles from adult jails
and lockups. Compliance with this standard requires that the last
submitted monitoring report demonstrate that no status offender
(including those accused of or adjudicated for violating a valid court
order) or nonoffender juveniles were securely detained in adult jails
or lockups for any length of time; or that all status offenders and
nonoffenders securely detained in adult jails and lockups for any
length of time were held in violation of an enforceable State law and
did not constitute a pattern or practice within the State; and
(3) Made meaningful progress in removing juvenile criminal-type
offenders from adult jails and lockups. Compliance with this standard
requires the State to document a significant reduction in the number of
jurisdictions securely detaining juvenile criminal-type offenders in
violation of section 223(a)(14) of the JJDP Act; or a significant
reduction in the number of facilities securely detaining such
juveniles; or a significant reduction in the average length of time
each juvenile criminal-type offender is securely detained in an adult
jail or lockup; or State legislation has recently been enacted and
taken effect and which the State demonstrates will significantly impact
the secure detention of juvenile criminal-type offenders in adult jails
and lockups; and
(4) Diligently carried out the State's jail and lockup removal plan
approved by OJJDP. Compliance with this standard requires that actions
have been undertaken to achieve the State's jail and lockup removal
goals and objectives within approved time lines, and that the State
Advisory Group, required by section 223(a)(3) of the JJDP Act, has
maintained an appropriate involvement in developing and/or implementing
the State's plan; and
(5) Submitted an acceptable plan, based on an assessment of current
jail and lockup removal barriers within the State, to eliminate
noncompliant incidents; and
(6) Achieved compliance with section 223(a)(15) of the JJDP Act;
and
(7) Demonstrates an unequivocal commitment, through appropriate
executive or legislative action, to achieving full compliance.
* * * * * [[Page 19851]]
Paragraph 8. On page 13338 in amendatory instruction 23, paragraph
(f)(6)(iii)(E) of Sec. 31.303 was redesignated as paragraph
(f)(6)(iii)(D) of Sec. 31.303. Redesignated paragraph (f)(6)(iii)(D) is
corrected to read as follows:
* * * * *
(f) * * *
(6) * * *
(iii) * * *
(D) Waiver maximum. A State may receive a waiver of termination of
eligibility from the Administrator under paragraph (f)(6)(iii)(C) of
this section for a combined maximum of four Formula Grant Awards
through Fiscal Year 1993. No additional waivers will be granted.
* * * * *
John J. Wilson,
Deputy Administrator, Office of Juvenile Justice and Delinquency
Prevention.
[FR Doc. 95-9826 Filed 4-20-95; 8:45 am]
BILLING CODE 4410-18-P
