[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17961]
[[Page Unknown]]
[Federal Register: July 25, 1994]
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Part III
Department of Justice
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Office of Juvenile Justice and Delinquency Prevention
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28 CFR Part 31
Juvenile Justice and Delinquency Prevention Office; Formula Grants;
Proposed Rule
DEPARTMENT OF JUSTICE
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention
28 CFR Part 31
OJJDP Formula Grants Regulation
AGENCY: Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention.
ACTION: Proposed rule and request for public comment.
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SUMMARY: The Office of Juvenile Justice and Delinquency Prevention
(OJJDP) is publishing for public comment proposed amendments to the
existing Formula Grants Regulation. The Formula Grants Regulation
implements Part B of Title II of the Juvenile Justice and Delinquency
Prevention (JJDP) Act of 1974, as amended by the Juvenile Justice and
Delinquency Prevention Amendments of 1992. The 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 proposed
amendments 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.
DATES: Interested persons are invited to submit written comments which
must be received on or before September 8, 1994.
ADDRESSES: Address all comments to Mr. John J. Wilson, Acting
Administrator, Office of Juvenile Justice and Delinquency Prevention
(OJJDP), 633 Indiana Avenue NW., room 742, Washington, DC 20531.
FOR FURTHER INFORMATION CONTACT: Ms. Roberta Dorn, Director, State
Relations and Assistance Division, Office of Juvenile Justice and
Delinquency Prevention (OJJDP), 633 Indiana Avenue NW., room 543,
Washington, DC 20531; (202) 307-5924.
SUPPLEMENTARY INFORMATION: The Office of Juvenile Justice and
Delinquency Prevention is proposing revisions to the existing
Regulation, codified at 28 CFR Part 31, and inviting public comment on
the proposed changes. The proposed changes in the regulatory text
accomplish the following:
(1) continue the authority citation for the regulation;
(2) revise Sec. 31.3 to establish a mandatory deadline for the
submission of State Formula Grant applications;
(3) revise Sec. 31.102 to provide that the State agency must, at a
minimum, assign one full-time Juvenile Justice Specialist to manage the
Formula Grants Program;
(4) revise Sec. 31.301 to provide for statutory changes in the base
allocation for States and Territories;
(5) revise Sec. 31.303(e)(3) to modify the requirements for a
facility located within the same building or on the same grounds as an
adult jail or lockup to qualify as a separate juvenile detention
facility;
(6) delete Sec. 31.303(c)(3) and (e)(4) related to substantial
compliance with the deinstitutionalization of status offenders (DSO)
and jail and lockup removal requirements respectively, and section
31.303(d)(2) related to progress toward compliance with the separation
provision;
(7) revise Sec. 31.303(d)(1) to provide for statutorily required
enhanced separation requirements;
(8) revise Sec. 31.303(f)(3)(iv) to provide that a status offender
alleged or found in a judicial hearing to have violated a valid court
order may be held in a secure juvenile detention or correctional
facility and not in an adult jail or lockup. This proposed revision,
based on the 1992 Amendments, is effective for, and must be reflected
in, State monitoring reports due by December 31, 1994, and subsequent
monitoring reports;
(9) revise Sec. 31.303(f)(3) to require that status offenders
receive the full due process protections guaranteed by the Constitution
prior to the issuance of a court order regulating future behavior, and
that prior to a secure dispositional placement of a status offender
found to have violated a valid court order, the court must review and
consider a report on possible dispositional alternatives for the youth,
the report to be prepared by a public agency or organization other than
a court or law enforcement agency;
(10) revise Sec. 31.303(f)(4) to provide for expansion of the non-
MSA exception to jail and lockup removal to address adverse weather and
distance/lack of ground transportation;
(11) revise Sec. 31.303 (f)(5) to require that States must, in
completing their annual monitoring report, report as violations of the
section 223(a)(12)(A) deinstitutionalization requirement the number of
status offenders (including those status offenders accused of violating
a valid court order) and nonoffenders held in secure custody in an
adult jail or lockup for any length of time. This proposed policy-based
revision is effective for, and must be reflected in, State monitoring
reports due by December 31, 1995, and subsequent monitoring reports;
(12) delete Sec. 31.303(f)(6)(iii)(A) related to substantial
compliance with the jail and lockup removal requirement and redesignate
subsequent paragraphs;
(13) revise Sec. 31.303(f)(6)(iii)(C), as redesignated, to allow
States that have reduced the number of status and nonoffenders securely
detained or confined in jails and lockups to less than 9 per 100,000
juvenile population in the State, and can demonstrate meaningful
progress in removing juvenile criminal-type offenders, to qualify for a
waiver of termination for annual fund allocations through Fiscal Year
1993, when full compliance with the jail and lockup removal requirement
has not been achieved. This section is also revised to require that a
State seeking a waiver of termination demonstrate an ``unequivocal''
commitment to achieving full compliance;
(14) revise Sec. 31.303(f)(6)(iii)(D), as redesignated, to increase
the maximum number of waivers that may be granted to a State from three
to four;
(15) revise Sec. 31.303(f)(6) to provide that failure to comply
with the subsection (a)(12)(A), (13), (14) or (23) mandates for any
fiscal year beginning with 1994, will result in the State's Formula
Grant allocation being reduced by 25% for each such failure;
(16) revise Sec. 31.303(h) to require the submission of annual
performance reports by June 30, beginning with calendar year 1995; and
(17) revise Sec. 31.303(j) to enhance State requirements for
demonstrating compliance with the section 223(a)(23) mandate on
disproportionate minority confinement, and to establish timelines for
compliance.
Application Deadline
Section 31.1 currently requires that Formula Grant applications and
related plans or plan updates for each fiscal year should be submitted
to OJJDP by August 1st (60 days prior to the beginning of the fiscal
year) or within 60 days after States are officially notified of each
fiscal year's Formula Grants Program allocation.
A number of States have submitted applications sufficiently late in
recent fiscal years to impede orderly and timely application processing
by OJJDP. This has resulted in an increased number of special
conditions and a need for time consuming follow-up by State Relations
and Assistance Division staff.
The submission requirement would be changed to require that Fiscal
Year 1995 applications and all subsequent applications shall be
submitted to OJJDP no later than March 31 of the fiscal year for which
the funds were allocated. This submission date would allow OJJDP
adequate time to conduct a full review of each State's plan or plan
update, give States the opportunity to address any deficiencies in the
application, plan or plan update, or budget prior to award, and assure
complete application processing and award of funds prior to the end of
the fiscal year.
State Agency Structure--Staffing
In addition to the current ``adequate staff'' requirement of
Sec. 31.102 for the State agency administering Formula Grant funds, the
Regulation is revised to provide that a participating State agency
must, at a minimum, assign one full-time Juvenile Justice Specialist to
manage the Formula Grants Program. OJJDP's experience indicates that
the complexity of the Formula Grants program justifies the attention of
at least one full-time Juvenile Justice Specialist in each State to
perform and oversee required planning and administration activities
including: developing, announcing, competing, packaging, awarding,
evaluating, and overseeing subawards, developing programs to address
disproportionate minority confinement issues and provide for effective
use of Indian tribe pass-through funds; providing for program and
project monitoring; playing a central role in preparing the three year
program plan and annual plan update; providing staff support to the
State supervisory board and/or the State advisory group; and overseeing
the reporting of State progress in achieving and maintaining compliance
with the deinstitutionalization, separation, adult jail and lockup
removal, and disproportionate minority confinement requirements.
Funding--Allocation to States
Section 222(a) 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. For
Fiscal Year 1993, the total appropriation for Title II of the JJDP Act
(other than Parts D and E) was less than $75 million. As a result, the
``floating minimum'' formula grant allocation for any State was
legislatively established at a minimum of $325,000 and a maximum of
$400,000 for States, and $75,000 and $100,000 for Territories, with no
State or Territory receiving less than its Fiscal Year 1992 allocation.
The Congressionally stated purpose of this formula was to increase the
funds available to the minimum allocation States and Territories. In
order to ensure that this Congressional intent is maximized, the Fiscal
Year 1993 formula grant allocations held the non-minimum States and
Territories at their Fiscal Year 1992 funding levels, allocating the
increased Fiscal Year 1993 formula grant funds to the minimum States
and Territories on a prorata basis.
For Fiscal Year 1994, the total appropriation for Title II (other
than Part D) exceeds the $75 million threshold. Consequently, the
``floating minimum'' formula grant allocation for any State in Fiscal
Year 1994 is established at a minimum of $400,000 and a maximum of
$600,000. OJJDP proposes to implement the amended language in Section
222(a)(2)(B) to provide for a minimum allocation of $600,000, based on
fund availability: ``* * * not less than $400,000, or such greater
amount, up to $600,000, as is available to be allocated * * *'' All
non-minimum States will also receive an increased formula grant
allocation in Fiscal Year 1994.
Proposed State formula grant allocations for Fiscal Years 1993 and
1994 have been provided to all States and Territories. The precise
procedure used by the budget staff of the Office of Justice Programs to
calculate State formula grant allocations is available upon request.
Collocated Juvenile and Adult Facilities
Section 223(a)(14) of the JJDP Act requires that juveniles be
removed from adult jails and lockups. OJJDP policy No. 91-1401, July
16, 1991, sought to clarify the existing OJJDP regulatory requirements
for establishing the existence of a separate juvenile detention
facility where such facility is located in the same building or on the
same grounds as an adult jail or lockup.
OJJDP's initial policy on collocated juvenile and adult facilities
was established by an OJJDP ``Position Statement on Minimum
Requirements of Section 223(a)(14) of the Juvenile Justice and
Delinquency Prevention Act, as amended,'' which was published as a
Notice in the Federal Register on January 17, 1984. Four criteria were
established in that policy publication, each of which had to be met to
ensure the requisite separateness of juvenile and adult facilities. The
criteria were subsequently incorporated into the Formula Grants
regulation the following year (See 50 FR 119, 25550-25561, June 20,
1985). The July 16, 1991 OJJDP policy reiterated each of the four
criteria, and sought to clarify a number of specific implementation
mechanisms that would be acceptable to OJJDP while remaining within the
parameters of each criterion.
The clarifications in OJJDP Policy No. 91-1401 have been the
subject of continued concern and controversy in the juvenile justice
community. In addition, the 1992 Amendments substantially revise one of
the four criteria (separate staff) for determining whether a separate
juvenile detention facility exists. For these reasons, the
Administrator deems it essential to provide interested parties with an
opportunity to comment on each of the four collocated facility
criteria.
In formulating the four criteria initially, and in providing
additional policy clarification, OJJDP recognized a need to distinguish
an optimal system, where a juvenile detention center would never be
collocated with an adult jail or lockup, from a system where States can
use collocated facilities that meet the regulatory requirements for a
separate facility by creating and maintaining an atmosphere that is
appropriate and conducive to the care of alleged juvenile criminal-type
offenders who require a secure detention environment. Given the limited
level of funds available to States under the Formula Grants program,
and the need to expend these funds to address a variety of priorities
and needs identified in the JJDP Act and State plans, OJJDP has sought
to provide States with sufficient flexibility to achieve and maintain
compliance with JJDP Act mandates while, at the same time, addressing
needed delinquency prevention and other system improvement initiatives.
The proposed regulation clarifies the four criteria by providing
that: (1) Total separation in spatial areas of juvenile and adult
facilities can be achieved by providing for no common use areas or by
time-phasing common use areas, provided that the arrangement precludes
even haphazard or accidental contact between juvenile and adult
residents and adult facility staff at all times and provided that time-
phasing of common use areas cannot extend to sleeping or living areas.
Under either approach to total separation, written operational plans,
policies and procedures must be in place to insure that the objective
of total separation is achieved; (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. While
program space, equipment and resources may be shared by both juvenile
and adult facility populations subject to the requirements of total
separation in spatial areas, the key feature of this policy is the
express requirement that the juvenile population receive a full range
of services in circumstances where collocation of facilities is
approved; (3) separate juvenile and adult staff--management, security
and direct care--is essential to the maintenance of an appropriate
atmosphere for the care of juveniles in detention. The regulation
distinguishes between staff who routinely have day-to-day direct care
responsibility for juveniles and specialized service staff not normally
in contact with detainees. For security and direct care staff
(including management), the 1992 Amendments require that these
functions be vested in totally separate staff. This requirement is
designed to ensure that a facility's security and direct care staff are
both well qualified to serve, and appropriately focused on, the needs
of the juvenile population while providing juvenile facility services;
(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. The proposed regulation establishes an express requirement
that a responsible State authority must certify that State standards
and licensing requirements have been met and that the architectural
configuration and operational procedures and policies of the facility
assure total separation between juvenile detention center and adult
facility populations.
OJJDP intends these clarifications to strengthen the four
requirements for a separate facility and to establish reliable
parameters for States completing final steps to achieve and maintain
full compliance with the jail and lockup removal requirement. The
regulatory language committing OJJDP to the ``rule of reason''
represents a further attempt to place the collocated facility criteria
in perspective. Finally, States are reminded of their oversight
responsibility to insure that the separate character of any collocated
juvenile detention facility is fully maintained following its
classification as a separate juvenile detention facility. The 1992
Amendments require States to reassess 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
proposed regulation.
OJJDP's original policy on collocated facilities was designed to
accommodate a small number of existing juvenile detention facilities.
However, several States have used the policy and regulation to create a
network of collocated juvenile detention facilities in rural areas as
county or regional detention facilities in lieu of establishing
dedicated county or regional juvenile detention facilities.
Consequently, and because OJJDP does not believe either that building
or establishing collocated facilities in urban areas can be justified
or that States should rely upon collocated facilities as a primary or
long-term strategy for achieving and maintaining compliance with the
jail and lockup removal mandate in rural areas, OJJDP proposes to limit
future approval of collocated facilities to those that are outside a
Standard Metropolitan Statistical Area (SMSA), are operational or
planned such that a determination of compliance with the criteria can
be made, and have been determined by the State (with subsequent OJJDP
concurrence) to meet each of the four criteria, by December 31, 1994.
Criteria for Compliance With DSO, Adult Jail and Lockup Removal,
Separation, and Minority Overrepresentation
The proposed regulation deletes the ``substantial compliance
criteria'' from Sec. 31.303(c)(3) and (e)(4) of the regulation.
Pursuant to the 1992 Amendments, all eligible States and territories
are required to be in full compliance with the DSO and Jail and Lockup
Removal requirements in order to be eligible for FY 1994 Formula Grant
funds. Also, States must demonstrate compliance with the enhanced
Separation and Disproportionate Minority Confinement mandates in order
to be eligible for 1994 funds. Therefore, the regulatory provision
recognizing ``progress'' toward compliance with the Separation mandate
is being deleted. Also, enhanced criteria and specific timelines would
be established for the Disproportionate Minority Confinement Mandate.
OJJDP would use these criteria and timelines to determine if States
have demonstrated compliance with the Minority Overrepresentation
Mandate.
Deinstitutionalization of Status Offenders
Revisions are proposed to the valid court order exception and
monitoring report requirements related to the deinstituionalization of
status offenders and nonoffenders requirement (DSO) [section
223(a)(12)(A)]. These changes are designed to bring the DSO requirement
in line with the section 223(a)(14) Jail and Lockup Removal
requirement. Currently, the regulatory DSO exceptions for valid court
order violations [28 CFR 31.303(f)(3)] and the 24-hour monitoring
report exception for detention of status and nonoffender juveniles [28
CFR 31.303(f)(5)] do not prohibit the use of adult jails and lockups
for status offenders who violate a valid court order or for status or
nonoffender juveniles held in secure custody pursuant to the 24-hour
monitoring exception. This anomaly, which resulted from the separate
years in which these requirements became law (1974 and 1980,
respectively), is being addressed to reflect 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 these changes
must be included in the State Monitoring Report due by December 31,
1995, and subsequent monitoring reports.
Waiver of Termination--Criteria and Number
The criteria for a waiver of termination when a State has failed to
achieve full compliance, or full compliance with de minimis exceptions
with the jail and lockup removal requirement, were established by
regulation in Sec. 31.303(f)(6) in 1989. Section 223(c)(3) of the JJDP
Act provided that a State's failure to achieve compliance with the jail
and lockup removal requirement ``* * * shall terminate any State's
eligibility for funding unless the Administrator waives the termination
of the State's eligibility on the condition that the State agrees to
expend all of the funds to be received under this part by the State,
[with specific exceptions] only to achieve compliance with subsection
(a)(14).''
OJJDP established seven regulatory criteria to be satisfied by a
State requesting a waiver. OJJDP's premise, based on Congressional
guidance, was that
``A State which satisfies these standards qualifies for a waiver on
the basis that: (1) It has made significant progress to date; and (2)
additional funding is likely to produce further progress toward
compliance (54 FR 14769, April 12, 1989).
The seven criteria, set forth at 28 CFR 31.303(f)(6)(iii)(D)(2),
provide that a State requesting a waiver must demonstrate that it:
(i) 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
(ii) Removed all status and nonoffender juveniles from adult jails
and lockups as set forth in paragraph (f)(6)(iii)(A)(2)(i) of this
section; and
(iii) Made meaningful progress in removing other juveniles from
adult jails and lockups as set forth in paragraph (f)(6)(iii)(A)(2)(ii)
of this section; and
(iv) Diligently carried out the State's jail and lockup removal
plan as set forth in paragraph (f)(6)(iii)(A)(2)(iii) of this section;
and (v) Submitted an acceptable plan, based on an assessment of current
jail and lockup removal barriers within the State, to eliminate
noncompliant incidents; and
(vi) Achieved compliance with section 223(a)(15) of the JJDP Act;
and
(vii) Demonstrated a commitment, through appropriate executive or
legislative action, to achieving full compliance.
The reference in (ii) above, is to regulatory provisions
implementing the former ``substantial compliance'' standard, which
reads as follows:
(i) 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.
Currently, several States have not been awarded their FY 1992 and/
or FY 1993 funds because they cannot meet criterion (ii) for receiving
a waiver. While the numbers of status and nonoffenders are typically
small, these States either lack an enforceable State law which would
prohibit any violations or the State has been unable to demonstrate
that the violations do not constitute a pattern or practice within the
State. OJJDP does not believe that the practice of detaining status or
nonoffender juveniles in adult jails or lockups is acceptable or that
States should in any way sanction or permit such a practice. However,
OJJDP also has to weigh the detriment that will occur if States which
are close to achieving full compliance are deprived of a significant
means of obtaining that important goal through the application of
criteria that are inflexible.
Consequently, OJJDP proposes to modify criterion (ii) to provide
that States can meet the standard by demonstrating that the number of
status offenders (including valid court order violators) and
nonoffenders securely detained in adult jails and lockups is less than
the numerical de minimis rate of 9 per 100,000 juvenile population in
the State. This provision is balanced by the addition in criterion
(vii) of a requirement that the State demonstrate an unequivocal
commitment, through appropriate executive or legislative action, to
achieving full compliance, and the proposed change in the monitoring
exception for DSO to prohibit placing a status or nonoffender juvenile
in an adult jail or lockup for any length of time. The proposed
revisions should provide these few remaining States with a reasonable
opportunity to achieve full compliance without a loss of Formula Grant
Program funds while, at the same time, reiterating the Congressional
mandate that adult jails and lockups are inappropriate places in which
to securely detain children who have committed no criminal law
violation.
Finally, OJJDP proposes to increase the maximum number of waivers
of termination from three to four. There are several States that may
need to receive a fourth waiver in order to be eligible for a Fiscal
Year 1992 or 1993 Formula Grant Award.
Executive Order 12866
This notice is not a ``significant regulatory action'' for purposes
of Executive Order 12886 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 No. 12866.
Regulatory Flexibility Act
This proposed regulation, if promulgated, will 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 30, States must submit
Formula Grant Program applications to the State ``Single Point of
Contact,'' if one exists. The State may take up to 60 days from the
application date to comment on the application.
Lists of Subjects in 28 CFR Part 31
Grant programs--law, juvenile delinquency, grant programs. For the
reasons set forth in the preamble, it is proposed to amend the OJJDP
Formula Grants Regulation, 28 CFR Part 31, as follows:
PART 31--[AMENDED]
1. The authority citation for Part 31 would continue to read as
follows:
Authority: Juvenile Justice and Delinquency Prevention Act of
1974, as amended (42 U.S.C. 5601 et seq.).
2. Section 31.3 is revised to read as follows:
Sec. 31.3 General.
Formula Grant Applications for each fiscal year should be submitted
to OJJDP by August 1 (60 days prior to the beginning of the fiscal
year) or within 60 days after the States are officially notified of the
fiscal year formula grant allocations. Beginning with Fiscal Year 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 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(c) is amended by adding the following sentence at
the end thereof:
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 Fiscal Year 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 the maintenance of records relating to their functions.
6. Section 31.301 (a), (c), (d), and (e) is revised 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 18.
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 Fiscal Year 1992. The
Territories will receive not less than $75,000 or more than $100,000.
If the amount appropriated for title II (other than Part D) 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 remains at $100,000.
* * * * *
(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% cash match (dollar for dollar), and
construction projects funded under section 299C (a)(2) of the JJDP Act
which also require a 100% cash match.
(d) Funds for administration. Not more than 10% 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
pendency of administrative hearing 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 Fiscal Year 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 (a) and (b)(2) is amended 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) 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; a juvenile or family court judge; a
probation officer; a juvenile corrections official; a prosecutor; 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 special knowledge concerning learning disabilities,
child abuse, neglect and youth violence.
8. Section 31.303 (a) and (b) is revised to read as follows:
Sec. 31.303 Assurances.
(a) Assurances. The State must certify through the provision of
assurances that it has complied and will comply (as appropriate) with
section 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 223(a)(16) assurance as
satisfied by an affirmation that State law and/or policy clearly
require equitable treatment on the required bases; or by providing in
the State plan that the State agency will require an assurance of
equitable treatment by all Formula Grant subgrant and contract
recipients, and establish as a program goal, in conjunction with the
State Advisory Group, the adoption and implementation of a statewide
juvenile justice policy that all youth in the juvenile justice system
will be treated equitably without regard to gender, race, family
income, and mentally, emotionally, or physically handicapping
conditions. OJJDP interprets the 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 Fiscal Year 1992.
(b) Serious juvenile offender emphasis. Pursuant to sections
101(a)(10) and 223(a)(10) of the JJDP Act, the Office 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 informed
dispositions, providing for effective rehabilitation, and facilitating
the coordination of services between the juvenile justice and criminal
justice systems.
* * * * *
9. Section 31.301 is amended by revising paragraph (c)(3) to read
as follows:
Sec. 31.301 Federal Wards.
(c) * * *
(3) 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:
Sec. 31.303 DSO Compliance.
(c) * * *
(4) 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:
Section Sec. 31.303 Separation
(d) * * *
(1) * * *
(i) 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 that no conversation is possible. 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 amended by adding a period
``.'' after the word ``State'' and removing the remainder of paragraph
(d)(2).
13. Paragraph (e)(3) in Sec. 31.303 is revised to read as follows:
Sec. 31.303 Collocated Facilities.
(e) * * *
(3)(i) Determine whether or not a facility in which juveniles are
detained or confined is an adult jail or lockup. In circumstances where
juveniles are detained or confined in a separate building within a
justice center or building complex which includes both juvenile and
adult facilities (same grounds) or in a separate juvenile area (floor,
wing, or side) of a building which includes an adult jail or lockup
(same building), the separate building or area in which juveniles are
detained or confined may qualify as a juvenile detention facility.
However, except when a collocated building or area within a building
has previously been determined by the State (with OJJDP concurrence) to
qualify as a separate juvenile detention facility under the four
established requirements prior to the effective date of this proposed
regulation, State determinations and OJJDP concurrence on collocated
facilities will be limited to those which are located in geographic
areas outside a Standard Metropolitan Statistical Area, and are
operational or planned such that a determination of compliance with the
criteria can be made, and are determined by the State (with subsequent
OJJDP concurrence) to meet the criteria and procedure established in
paragraph (e)(3)(i) (A) through (D) and (ii) of this section, no later
than December 31, 1994. Each of the following four criteria must be met
in order to ensure the requisite separateness of the two facilities.
The requirements are:
(A) Total separation between juvenile and adult facility spatial
areas such that there could be no contact between juveniles and adult
residents in the respective facilities. Total separation in spatial
areas of juvenile and adult facilities can be achieved by providing for
no common use areas, or by time-phasing common use areas, provided that
the arrangement precludes contact between juveniles and adult residents
and adult facility staff at all times. Sleeping or other living areas
may not be considered common use areas.
(B) Total separation in all juvenile and adult program activities
within the facilities, including recreation, education, counseling,
health care, dining, sleeping, and general living activities. There
must be an independent and comprehensive operational plan for the
juvenile detention facility which provides for a full range of separate
program activities. No program activities may be shared by juvenile and
adult residents. However, program space, equipment, and other resources
may be used by both facility populations subject to the criterion in
paragraph (e)(3)(i)(A) of this section.
(C) Separate juvenile and adult staff, including management,
security staff, and direct care staff such as recreation, education,
and counseling. Specialized services staff, such as cooks, bookkeepers
and medical professionals who are not normally in contact with
detainees or whose infrequent contacts occur under conditions of
separation of juveniles and adults, can serve both. The day to day
management, security and direct care functions of the juvenile
detention facility and its programs must be vested in totally separate
staff. Collocated facilities classified by the State with subsequent
OJJDP concurrence prior to the effective date of this proposed
regulation must also meet this requirement.
(D) In States that have established State standards or licensing
requirements for secure juvenile detention facilities, the juvenile
facility meets the standards (on the same basis as free-standing
juvenile detention facilities) and is licensed as appropriate.
Responsible State authorities must certify that all State standards or
licensing requirements for a secure juvenile detention facility have
been met, and that the architectural and operational configuration of
the juvenile facility assures total separation.
(ii) The State must initially determine that the four requirements
are fully met. Upon such determination, the State must submit to OJJDP
a request to concur with the State finding that a separate juvenile
facility exists. To enable OJJDP to assess the separateness of the two
facilities, sufficient documentation must accompany the request to
demonstrate that each requirement is met. In assessing the separateness
of the two facilities pursuant to a State's request for OJJDP
concurrence, OJJDP will be guided by the ``rule of reason.'' If a
facility is, in fact, a separate and distinct living environment for
juveniles in secure custody, and not simply a juvenile wing, section,
or area of an adult jail or lockup, a reasoned and reasonable
application of the criteria will result in OJJDP's concurrence that a
separate juvenile detention facility exists. It is incumbent upon each
State to make the initial determination through an on-site facility (or
full plan) review and, through the exercise of its oversight
responsibility, to insure that the separate character of the facility
is maintained by continuing to fully meet each of the four criteria in
the operation of the juvenile detention 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:
Sec. 31.303 Jail Removal Compliance.
(e) * * *
(4) Those States which, based upon the most recently submitted
monitoring report, have been found to be in full compliance with
section 223(a)(14) may, in lieu of addressing paragraphs (e) (1) and
(2) of this section, provide an assurance that adequate plans and
resources are available to maintain full compliance.
15. In Sec. 31.303, Paragraph (f)(1) introductory text is revised
to read as follows:
Sec. 31.303 Compliance Monitoring.
(f) * * *
(1) Pursuant to section 223(a)(15) of the JJDP Act, the State
shall:
* * * * *
16. Paragraph (f)(3)(i) in Sec. 31.303 is amended by adding the
following to the end of the paragraph:
Sec. 31.303 Valid Court Order.
(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.
* * * * *
17. Paragraph (f)(3)(iv) in Sec. 31.303 is amended by revising the
last sentence thereof to read as follows:
Sec. 31.303 Valid Court Order.
(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.
* * * * *
18. Paragraph (f)(3)(vi) in Sec. 31.303 is amended by adding the
following to the end of the paragraph:
Sec. 31.303 Valid Court Order.
(f) * * *
(3) * * *
(vi) * * * This determination must be informed 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 a public agency or
organization 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 represented court or law enforcement
agencies.
* * * * *
19. Paragraph (f)(4)(vi) in Sec. 31.303 is revised to read as
follows:
Sec. 31.303 Rural Area.
(f) * * *
(4) * * *
(vi) Pursuant to section 223(a)(14) of the JJDP Act, the non-MSA
(low population density) exception to the jail and lockup removal
requirement as described in paragraphs (f)(4) (i) through (v) of this
section shall remain in effect through 1997, and shall allow for secure
custody beyond the 24 hour period described in paragraph (f)(4)(i) of
this section when the facility is located where conditions of distance
to be traveled or the lack of highway, road, or other ground
transportation do not allow for court appearances within 24 hours, so
that a brief (not to exceed an additional 48 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 24 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 24 hour 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:
Sec. 31.303 Monitoring Report.
(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 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.
(D) 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 less than 24 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 valid
court order violations) and nonoffenders securely detained in any adult
jail, lockup, or nonapproved collocated facility for less than 24
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 valid court order provision.
(G) 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.
(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 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.
(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,
include 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.
(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),
or transfer to a juvenile facility.
(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 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 24 hours in
adult jails, lockups and collocated facilities not approved by the
State and concurred with by OJJDP, in areas meeting the ``removal
exception'' as noted 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 in adult jails, lockups and
collocated facilities not approved by the State and concurred with by
OJJDP, in areas meeting the ``removal exception'' as noted in paragraph
(f)(4) of this section, due to conditions of distance or lack of ground
transportation.
(M) The total number of juveniles accused of a criminal-type
offense who were held in excess of 24 hours 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:
Sec. 31.303 Funding Eligibility.
(f) * * *
(6) Compliance. The State must demonstrate the extent to which the
requirements of section 223(a) (12)(A), (13), (14), and (23) of the Act
are met. If the State fails to demonstrate full compliance with section
223(a) (12)(A) and (14), and compliance with (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 25% 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 a discretionary determination that the State
has substantially complied with the mandate(s) for which there is
noncompliance and that the State has made an unequivocal commitment to
achieving full compliance within a reasonable time. 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 Sec. 31.303 is revised to read as
follows:
Sec. 31.303 DSO Substantial Compliance.
(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 75% reduction in the aggregate number of status
offenders and nonoffenders held in secure detention or correctional
facilities, or removal of 100% 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 Fiscal Year 1994. Full
compliance is achieved when a State has removed 100% of such juveniles
from secure detention and correctional facilities or can demonstrate
full compliance with de minimis exceptions pursuant to the policy
criteria contained in the Federal Register of January 9, 1981 (46 FR
2566-2569).
* * * * *
23. Paragraph (f)(6)(iii)(A) in Sec. 31.303 is removed and
paragraphs (f)(6)(iii) (B), (C), (D), and (E), thereof are redesignated
as paragraphs (f)(6)(iii) (A), (B), (C), and (D), respectively.
24. Newly designated paragraph (f)(6)(iii)(C) in Sec. 31.303 is
revised to read as follows:
Sec. 31.303 Jail Removal Waiver.
(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 grant funds unless the Administrator of OJJDP waives
termination of the State's eligibility. In order to be eligible for
this waiver of termination, a State must request a waiver and
demonstrate that it meets the standards set forth in 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; or, the
number of status offenders and nonoffenders securely detained in adult
jails and lockups is less than 9 per 100,000 juvenile population in 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, that 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 timelines, 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.
* * * * *
25. Newly designated paragraph (f)(6)(iii)(D) in Sec. 31.301 is
revised to read as follows:
Sec. 31.303 Jail Removal Waiver.
(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.
* * * * *
26. Paragraph (f)(7) in Sec. 31.303 is revised to read as follows:
Sec. 31.303 Monitoring Report Exemption.
(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) and 223(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, correctional facilities,
and nonsecure 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.
* * * * *
27. Paragraph (g) introductory text in Sec. 31.303 is revised to
read as follows:
Sec. 31.303 Crime Analysis.
(g) Juvenile Crime Analysis. Pursuant to section 223(a)(8), the
State must conduct an analysis of juvenile crime problems, including
juvenile gangs that commit crimes, and juvenile justice and delinquency
prevention needs within the State, including those geographical areas
in which an Indian tribe performs law enforcement functions. The
analysis and needs assessment must include educational needs, gender
specific services, delinquency prevention and treatment services in
rural areas, and mental health services available to juveniles in the
juvenile justice system. The analysis should discuss barriers to
accessing services and provide a plan to provide such services where
needed.
* * * * *
28. Paragraph (h) in Sec. 31.303 is amended by adding the following
sentence at the end thereof:
Sec. 31.303 Performance Report.
(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.
* * * * *
29. Paragraph (j) in Sec. 31.303 is revised to read as follows:
Sec. 31.303 Disproportionate Minority Confinement.
(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 10-17 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 (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). 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 and non-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 12 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.
(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 [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.
* * * * *
30. Section 31.403 is revised to read as follows:
Sec. 31.403 Other 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 299A of the
Juvenile Justice and Delinquency Prevention Act of 1974, as amended;
(b) Title VI of the Civil Rights Act of 1964, as amended;
(c) Section 504 of the Rehabilitation Act of 1973, as amended;
(d) Title IX of the Education Amendments of 1972;
(e) The Age Discrimination Act of 1975;
(f) The Department of Justice NonDiscrimination regulations, 28 CFR
part 42, subparts C, D, E and G;
(g) The Department of Justice regulations on disability
discrimination, 28 CFR part 35 and part 39; and
(h) Subtitle A, Title II of the Americans with Disabilities Act
(ADA) of 1990.
John J. Wilson,
Acting Administrator, Office of Juvenile Justice and Delinquency
Prevention.
[FR Doc. 94-17961 Filed 7-22-94; 8:45 am]
BILLING CODE 4410-18-P
