OJJDP Formula Grants Regulation

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]

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