Formula Grants

SUMMARY: This document is published to consolidate the Formula Grants

Regulation for ease of use by grantees. This document reflects the

consolidation of the revisions to the Formula Grants Regulation

published in the Federal Register on March 10, 1995 and corrections

published on April 21, 1995.

EFFECTIVE DATE: The final regulation became effective on March 10,

1995.

FOR FURTHER INFORMATION CONTACT: Roberta Dorn, Director, State

Relations and Assistance Division, Office of Juvenile Justice and

Delinquency Prevention, 633 Indiana Avenue, NW., Room 543, Washington,

DC 20531; (202) 307-5924.

SUPPLEMENTARY INFORMATION: This document contains the entire text of

the Formula Grants Regulation, 28 CFR Part 31, including recently made

changes and corrections. On March 10, 1995, the Office of Juvenile

Justice and Delinquency Prevention (OJJDP) published in the Federal

Register the final Formula Grants Regulation revising 28 CFR part 31.

The regulation revisions provided clarification and guidance to States

in the formulation, submission and implementation of the State Formula

Grants Program under Part B of Title II of the Juvenile Justice and

Delinquency Prevention Act of 1974, as amended by the Juvenile Justice

and Delinquency Prevention Amendments of 1992 (Pub. L. 102-586,

November 18, 1992). On April 21, 1995 (60 FR 19847), OJJDP published in

the Federal Register corrections to the final Regulation because the

Final Regulation, as published on March 10, 1995 (60 FR 13330), was an

earlier draft version that was materially different from the final

draft that was intended to be published.

The major changes to the Final Regulation made in the March 10,

1995 revision and subsequent April 21, 1995 correction implemented the

1992 reauthorization statutory amendments that impact the Formula

Grants Program. These statutory changes include: a formula grant fund

allocation minimum base for participating States and territories;

elimination of the ``substantial compliance criteria'' with respect to

the deinstitutionalization of status offenders and jail and lockup

removal requirements because full compliance is required; a requirement

that there be separate juvenile and adult staff with respect to

management, security and direct care in juvenile detention facilities

that are collocated with an adult jail or lockup. The final Regulation

includes the requirement that collocated juvenile detention facilities

approved by the State and concurred with by OJJDP on or before June 30,

1995, be reviewed against the regulatory criteria and OJJDP policies in

effect at the time of the initial approval and concurrence. Facilities

approved after the effective date of the Regulation and prior to July

1, 1995, will be reviewed against the regulatory criteria in effect on

the day before the effective date of the Regulation. For collocated

juvenile detention facilities considered after June 30, 1995, OJJDP's

concurrence is limited to one year and, thereafter, will be reviewed on

an annual basis. The Regulation eliminated the requirement that in

order for a collocated juvenile detention facility to receive OJJDP's

initial and subsequent concurrences, the facility could only provide

secure custody for juvenile criminal-type offenders, status offenders

accused of violating a valid court order, and adjudicated delinquents

and valid court order violators who are awaiting disposition hearings

or transfer to a long term juvenile correctional facility.

Executive Order 12866

This final regulation in not a ``significant regulatory action''

for purposes of Executive Order 12866 because it does not result in:

(1) an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local or tribal governments or communities;

(2) create a serious inconsistency or otherwise interfere with action

taken or planned by another agency; (3) materially alter the budgetary

impact of entitlements, grants, user fees, or loan programs or the

rights and obligations of recipients thereof; and (4) does not raise

novel legal or policy issues arising out of legal mandates, the

President's priorities or the principles of Executive Order 12866.

Regulatory Flexibility Act

This final regulation, does not have a ``significant'' economic

impact on a substantial number of small ``entities'', as defined by the

Regulatory Flexibility Act (Pub. L. 96-354).

Paperwork Reduction Act

No collection of information requirements are contained in or

effected by this regulation (See the Paperwork Reduction Act, 44 U.S.C.

3504(h)).

Intergovernmental Review of Federal Programs

In accordance with Executive Order 12372 and the Department of

Justice's implementing regulation 28 CFR Part 31, States must submit

formula grant applications to the State ``Single Point of Contact,'' if

one exists. The State may take up to 60 days from the application date

to comment on the application.

List of Subjects in 28 CFR Part 31

Grant programs--law, Juvenile delinquency, Reporting and

recordkeeping r equirements.

For the reasons set out in the preamble, Title 28, Chapter I, Part

31 of the Code of Federal Regulations is republished for the

convenience of the reader as follows:

PART 31-FORMULA GRANTS

Subpart A--General Provisions

Sec.

31.1 General.

31.2 Statutory authority.

31.3 Formula Grant Plan and Applications.

Subpart B--Eligible Applicants

31.100 Eligibility.

31.101 Designation of State Agency.

31.102 State agency structure.

31.103 Membership of supervisory board.

Subpart C--General Requirements

31.200 General.

31.201 Audit.

31.202 Civil rights.

31.203 Open meetings and public access to records.

Subpart D--Juvenile Justice Act Requirements

31.300 General.

31.301 Funding.

31.302 Applicant State agency.

31.303 Substantive requirements.

31.304 Definitions.

Subpart E--General Conditions and Assurances

31.400 Compliance with statute.

31.401 Compliance with other Federal laws, orders, circulars.

31.402 Application on file.

31.403 Civil rights requirements.

Authority: 42 U.S.C. 5601 et seq. [[Page 28441]]

Subpart A--General Provisions

Sec. 31.1 General.

This part defines eligibility and sets forth requirements for

application for and administration of formula grants to State

governments authorized by part B, subpart I, of the Juvenile Justice

and Delinquency Prevention Act.

Sec. 31.2 Statutory authority.

The Statute establishing the Office of Juvenile Justice and

Delinquency Prevention and giving authority to make grants for juvenile

justice and delinquency prevention improvement programs is the Juvenile

Justice and Delinquency Prevention Act of 1974, as amended (42 U.S.C.

5601 et seq.).

Sec. 31.3 Formula grant plan and applications

Formula Grant Applications 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 the States are officially notified of the

fiscal year formula grant allocations. Beginning with FY 1995 and each

subsequent fiscal year, all Formula Grant Applications are due no later

than March 31 of the fiscal year for which the funds are allocated.

Subpart B--Eligible Applicants

Sec. 31.100 Eligibility.

All States as defined by section 103(7) of the JJDP Act.

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.

Sec. 31.102 State agency structure.

The State agency may be a discrete unit of State government or a

division or other component of an existing State crime commission,

planning agency or other appropriate unit of State government. Details

of organization and structure are matters of State discretion, provided

that the agency:

(a) Is a definable entity in the executive branch with the

requisite authority to carry out the responsibilities imposed by the

JJDP Act;

(b) Has a supervisory board (i.e., a board of directors,

commission, committee, council, or other policy board) which has

responsibility for supervising the preparation and administration of

the plan and its implementation; and

(c) Has sufficient staff and staff capability to carry out the

board's policies and the agency's duties and responsibilities to

administer the program, develop the plan, process applications,

administer grants awarded under the plan, monitor and evaluate programs

and projects, provide administration/support services, and perform such

accountability functions as are necessary to the administration of

Federal funds, such as grant close-out and audit of subgrant and

contract funds. At a minimum, one full-time Juvenile Justice Specialist

must be assigned to the Formula Grants Program by the State agency.

Where the State does not currently provide or maintain a full-time

Juvenile Justice Specialist, the plan must clearly establish and

document that the program and administrative support staff resources

currently assigned to the program will temporarily meet the adequate

staff requirement, and provide an assurance that at least one full-time

Juvenile Justice Specialist will be assigned to the Formula Grants

Program by the end of FY 1995 (September 30, 1995).

Sec. 31.103 Membership of supervisory board.

The State advisory group appointed under section 223(a)(3) may

operate as the supervisory board for the State agency, at the

discretion of the Governor. Where, however, a State has continuously

maintained a broad-based law enforcement and criminal justice

supervisory board (council) meeting all the requirements of section

402(b)(2) of the Justice System Improvement Act of 1979, and wishes to

maintain such a board, such composition shall continue to be acceptable

provided that the board's membership includes the chairman and at least

two additional citizen members of the State advisory group. For

purposes of this requirement a citizen member is defined as any person

who is not a full-time government employee or elected official. Any

executive committee of such a board must include the same proportion of

juvenile justice advisory group members as are included in the total

board membership. Any other proposed supervisory board membership is

subject to case by case review and approval of the OJJDP Administrator

and will require, at a minimum, ``balanced representation'' of juvenile

justice interests.

Subpart C--General Requirements

Sec. 31.200 General.

This subpart sets forth general requirements applicable to formula

grant recipients under the JJDP Act of 1974, as amended. Applicants

must assure compliance or submit necessary information on these

requirements.

Sec. 31.201 Audit.

The State must assure that it adheres to the audit requirements

enumerated in the ``Financial and Administrative Guide for Grants,

Guide Manual 7100.1 (current edition). Chapter 8 of the Manual contains

a comprehensive statement of audit policies and requirements relative

to grantees and subgrantees.

Sec. 31.202 Civil rights.

(a) To carry out the State's Federal civil rights responsibilities

the plan must:

(1) Designate a civil rights contact person who has lead

responsibility in insuring that all applicable civil rights

requirements, assurances, and conditions are met and who shall act as

liaison in all civil rights matters with OJJDP and the OJP Office of

Civil Rights Compliance (OCRC); and

(2) Provide the Council's Equal Employment Opportunity Program

(EEOP), if required to maintain one under 28 CFR 42.301, et seq., where

the application is for $500,000 or more.

(b) The application must provide assurance that the State will:

(1) Require that every applicant required to formulate an EEOP in

accordance with 28 CFR 42.201 et seq., submit a certification to the

State that it has a current EEOP on file, which meets the requirement

therein;

(2) Require that every criminal or juvenile justice agency applying

for a grant of $500,000 or more submit a copy of its EEOP (if required

to maintain one under 28 CFR 42.301, et seq.) to OCRC at the time it

submits its application to the State;

(3) Inform the public and subgrantees of affected persons' rights

to file a complaint of discrimination with OCRC for investigation;

(4) Cooperate with OCRC during compliance reviews of recipients

located within the State; and

(5) Comply, and that its subgrantees and contractors will comply

with the requirement that, in the event that a Federal or State court

or administrative agency makes a finding of

[[Page 28442]] discrimination of the basis of race, color, religion,

national origin, or sex (after a due process hearing) against a State

or a subgrantee or contractor, the affected recipient or contractor

will forward a copy of the finding to OCRC.

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.

Subpart D--Juvenile Justice Act Requirements

Sec. 31.300 General.

This subpart sets forth specific JJDP Act requirements for

application and receipt of formula grants.

Sec. 31.301 Funding.

(a) Allocation to States. Funds shall be allocated annually among

the States on the basis of relative population of persons under age

eighteen. If the amount allocated for Title II (other than parts D and

E) of the JJDP Act is less than $75 million, the amount allocated to

each State will not be less than $325,000, nor more than $400,000,

provided that no State receives less than its allocation for FY 1992.

The territories will receive not less than $75,000 or more than

$100,000. If the amount appropriated for Title II (other than parts D

and E) is $75 million or more, the amount allocated for each State will

be not less than $400,000, nor more than $600,000, provided that parts

D and E have been funded in the full amounts authorized. For the

Territories, the amount is fixed at $100,000. For each of FY's 1994 and

1995, the minimum allocation is established at $600,000 for States and

$100,000 for Territories.

(b) Funds for Local Use. At least two-thirds of the formula grant

application to the state (other than the section 222(d) State Advisory

Group set aside) must be used for programs by local government, local

private agencies, and eligible Indian tribes, unless the State applies

for and is granted a waiver by the OJJDP. The proportion of pass-

through funds to be made available to eligible Indian tribes shall be

based upon that proportion of the state youth population under 18 years

of age who reside in geographical areas where the tribes perform law

enforcement functions. Pursuant to section 223(a)(5)(C) of the JJDP

Act, each of the standards set forth in paragraphs (b)(1)(i) through

(111) of this section must be met in order to establish the eligibility

of Indian tribes to receive pass through funds:

(1) (i) The tribal entity must be recognized by the Secretary of

the Interior as an Indian tribe that performs law enforcement functions

as defined in paragraph (b) (2) of this section.

(ii) The tribal entity must agree to attempt to comply with the

requirements of section 223(a)(12)(A), (13), and (14) of the JJDP Act;

and

(iii) The tribal entity must identify the juvenile justice needs to

be served by these funds within the geographical area where the tribe

performs law enforcement functions.

(2) ``Law enforcement functions'' are deemed to include those

activities pertaining to the custody of children, including, but not

limited to, police efforts to prevent, control, or reduce crime and

delinquency or to apprehend criminal and delinquent offenders, and/or

activities of adult and juvenile corrections, probation, or parole

authorities.

(3) To carry out this requirement, OJJDP will annually provide each

state with the most recent Bureau of Census statistics on the number of

persons under age 18 living within the state, and the number of persons

under age 18 who reside in geographical areas where Indian tribes

perform law enforcement functions.

(4) Pass-through funds available to tribal entities under section

223(a)(5)(C) shall be made available within states to Indian tribes,

combinations of Indian tribes, or to an organization or organizations

designated by such tribe(s), that meet the standards set forth in

paragraphs (b)(1)(i)-(iii) of this section. Where the relative number

of persons under age 18 within a geographic area where an Indian tribe

performs law enforcement functions is too small to warrant an

individual subgrant or subgrants, the state may, after consultation

with the eligible tribe(s), make pass-through funds available to a

combination of eligible tribes within the state, or to an organization

or organizations designated by and representing a group of qualifying

tribes, or target the funds on the larger tribal jurisdictions within

the state.

(5) Consistent with section 223(a)(4) of the JJDP Act, the state

must provide for consultation with Indian tribes or a combination of

eligible tribes within the state, or an organization or organizations

designated by qualifying tribes, in the development of a state plan

which adequately takes into account the juvenile justice needs and

requests of those Indian tribes within the state.

(c) Match. Formula grants under the JJDP Act shall be 100% of

approved costs, with the exception of planning and administration

funds, which require a 100 percent cash match (dollar for dollar), and

construction projects funded under section 299C(a)(2) which also

require a 100 percent cash match.

(d) Funds for Administration. Not more than ten percent of the

total annual Formula Grant award may be utilized to develop the annual

juvenile justice plan and pay for administrative expenses, including

project monitoring. These funds are to be matched on a dollar for

dollar basis. The State shall make available needed funds for planning

and administration to units of local government on an equitable basis.

Each annual application must identify uses of such funds.

(e) Nonparticipating States. Pursuant to section 223(d), the OJJDP

Administrator shall endeavor to make the fund allotment under section

222(a), of a State which chooses not to participate or loses its

eligibility to participate in the formula grant program, directly

available to local public and private nonprofit agencies within the

nonparticipating State. The funds may be used only for the purpose(s)

of achieving deinstitutionalization of status offenders and

nonoffenders, separation of juveniles from incarcerated adults, removal

of juveniles from adult jails and lockups, and reducing the

disproportionate confinement of minority youth in secure facilities.

Absent a request for extension which demonstrates compelling

circumstances justifying the reallocation of formula grant funds back

to the State to which the funds were initially allocated, or the

proceedings under section 223(d), formula grant funds allocated to a

State which has failed to submit an application, plan, or monitoring

data establishing its eligibility for the funds will, beginning with FY

1995 be reallocated to the nonparticipating State program on September

30 of the fiscal year for which the funds were appropriated.

Reallocated funds will be competitively awarded to eligible recipients

pursuant to program announcements published in the Federal Register.

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

[[Page 28443]] agency for supervising the preparation and

administration of the plan and has the authority to implement the plan.

(b) Advisory Group. Pursuant to section 223(a)(3) of the JJDP Act,

the Chief Executive:

(1) Shall establish an advisory group pursuant to section 223(a)(3)

of the JJDP Act. The State shall provide a list of all current advisory

group members, indicating their respective dates of appointment and how

each member meets the membership requirements specified in this section

of the Act.

(2) Should consider, in meeting the statutory membership

requirements of section 223(A)(3) (A)-(E), appointing at least one

member who represents each of the following: A locally elected official

representing general purpose local government; a law enforcement

officer; representatives of juvenile justice agencies, including a

juvenile or family court judge, a probation officer, a prosecutor, and

a person who routinely provides legal representation to youth in

juvenile court; a public agency representative concerned with

delinquency prevention and treatment; a representative from a private,

non-profit organization, such as a parents group, concerned with

teenage drug and alcohol abuse; a high school principal; a recreation

director; a volunteer who works with delinquent or at risk youth; a

person with a special focus on the family; a youth worker experienced

with programs that offer alternatives to incarceration; persons with

special competence in addressing programs of school violence and

vandalism and alternatives to expulsion and suspension; and persons

with knowledge concerning learning disabilities, child abuse, neglect,

and youth violence.

(c) The State shall assure that it complies with the Advisory Group

financial support requirement of section 222(d) and the composition and

function requirements of section 223(a)(3) of the JJDP Act.

Sec. 31.303 Substantive requirements.

(a) Assurances. The State must certify through the provision of

assurances that it has complied and will comply (as appropriate) with

sections 223(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11),

(16), (17), (18), (19), (20), (21), (22), and (25), and sections 229

and 261(d), in formulating and implementing the State plan. The Formula

Grant Application kit provides a form and guidance for the provision of

assurances. OJJDP interprets the section 223(a)(16) assurance as

satisfied by an affirmation that State law and/or policy clearly

require equitable treatment on the required bases; or by providing in

the State plan that the State agency will require an assurance of

equitable treatment by all Formula Grant subgrant and contract

recipients, and establish as a program goal, in conjunction with the

State Advisory Group, the adoption and implementation of a statewide

juvenile justice policy that all youth in the juvenile justice system

will be treated equitably without regard to gender, race, family

income, and mentally, emotionally, or physically handicapping

conditions. OJJDP interprets the section 223(a)(25) assurance as

satisfied by a provision in the State plan for the State agency and the

State Advisory Group to promulgate policies and budget priorities that

require the funding of programs that are part of a comprehensive and

coordinated community system of services as set forth in section

103(19) of the JJDP Act. This requirement is applicable when a State's

formula grant for any fiscal year exceeds 105 percent of the State's

formula grant for FY 1992.

(b) Serious Juvenile Offender Emphasis. Pursuant to sections

101(a)(10) and 223(a)(10) of the JJDP Act, OJJDP encourages States that

have identified serious and violent juvenile offenders as a priority

problem to allocate formula grant funds to programs designed for

serious and violent juvenile offenders at a level consistent with the

extent of the problem as identified through the State planning process.

Particular attention should be given to improving prosecution,

sentencing procedures, providing resources necessary for effective

rehabilitation, and facilitating the coordination of services between

the juvenile justice and criminal justice systems.

(c) Deinstitutionalization of Status Offenders and Non-Offenders.

Pursuant to section 223(a)(12)(A) of the JJDP Act, the State shall:

(1) Describe its plan, procedure, and timetable covering the three-

year planning cycle, for assuring that the requirements of this section

are met. Refer to Sec. 31.303(f)(3) for the rules related to the valid

court order exception to this Act requirement.

(2) Describe the barriers the State faces in achieving full

compliance with the provisions of this requirement.

(3) Federal Wards. Apply this requirement to alien juveniles under

Federal jurisdiction who are held in State or local facilities.

(4) DSO compliance. Those States which, based upon the most

recently submitted monitoring report, have been found to be in full

compliance with section 223(a)(12)(A) may, in lieu of addressing

paragraphs (c)(1) and (2) of this section, provide an assurance that

adequate plans and resources are available to maintain full compliance.

(5) Submit the report required under section 223(a)(12)(B) of the

Act as part of the annual monitoring report required by section

223(a)(15) of the Act.

(d) Contact with incarcerated adults.

(1) Pursuant to section 223(a)(13) of the JJDP Act the State shall:

(i) Separation. Describe its plan and procedure, covering the

three-year planning cycle, for assuring that the requirements of this

section are met. The term ``contact'' is defined to include any sight

and sound contact between juveniles in a secure custody status and

incarcerated adults, including inmate trustees. Sound contact is

further defined to mean any oral communication between incarcerated

adults and juveniles. Separation must be accomplished in all secure

areas of the facility which include, but are not limited to: sallyports

within the secure perimeter of the facility, other entry areas, all

passageways (hallways), admissions, sleeping, toilet and shower,

dining, recreational, educational, vocational, health care, and other

areas as appropriate.

(ii) In those instances where accused juvenile criminal-type

offenders are authorized to be temporarily detained in facilities where

adults are confined, the State must set forth the procedures for

assuring no sight or sound contact between such juveniles and confined

adults.

(iii) Describe the barriers which may hinder the separation of

alleged or adjudicated criminal type offenders, status offenders and

non-offenders from incarcerated adults in any particular jail, lockup,

detention or correctional facility.

(iv) Those States which, based upon the most recently submitted

monitoring report, have been found to be in compliance with section

223(a)(13) may, in lieu of addressing paragraphs (d)(1)(i), (ii), and

(iii) of this section, provide an assurance that adequate plans and

resources are available to maintain compliance.

(v) Assure that adjudicated offenders are not reclassified

administratively and transferred to an adult (criminal) correctional

authority to avoid the intent of segregating adults and juveniles in

correctional facilities. This does not prohibit or restrict waiver of

juveniles to criminal court for prosecution, according to State law. It

does, however, preclude a State from administratively transferring a

juvenile offender to an adult correctional authority or a transfer

within a mixed [[Page 28444]] juvenile and adult facility for placement

with adult criminals either before or after a juvenile reaches the

statutory age of majority. It also precludes a State from transferring

adult offenders to juvenile correctional authority for placement.

(2) Implementation. The requirement of this provision is to be

planned and implemented immediately by each State.

(e) Removal of Juveniles From Adult Jails and Lockups. Pursuant to

section 223(a)(14)of the JJDP Act, the State shall:

(1) Describe its plan, procedure, and timetable for assuring that

requirements of this section will be met beginning after December 8,

1985. Refer to Sec. 31.303(f)(4) to determine the regulatory exception

to this requirement.

(2) Describe the barriers which the State faces in removing all

juveniles from adult jails and lockups. This requirement excepts only

those juveniles formally waived or transferred to criminal court and

against whom criminal felony charges have been filed, or juveniles over

whom a criminal court has original or concurrent jurisdiction and such

court's jurisdiction has been invoked through the filing of criminal

felony charges.

(3) Collocated facilities.

(i) Determine whether or not a facility in which juveniles are

detained or confined is an adult jail or lockup. The JJDP Act prohibits

the secure custody of juveniles in adult jails and lockups, except as

otherwise provided under the Act and implementing OJJDP regulations.

Juvenile facilities collocated with adult facilities are considered

adult jails or lockups unless the paragraph (e)(3)(i)(D)(1)-(4)

criteria established in this section are complied with and the

determinations and concurrences set forth in paragraph (e)(3)(ii),

(iii), and (iv) of this section have been made.

(A) A collocated facility is a juvenile facility located in the

same building as an adult jail or lockup, or is part of a related

complex of buildings located on the same grounds as an adult jail or

lockup. A complex of buildings is considered ``related'' when it shares

physical features such as walls and fences, or services beyond

mechanical services (heating, air conditioning, water and sewer), or

the specialized services that are allowable under paragraph

(e)(3)(i)(D)(3) of this section.

(B) The State, with OJJDP concurrence, must determine whether a

collocated facility qualifies as a separate juvenile detention facility

under the four criteria set forth in Paragraph (e)(3)(i)(D)(1)-(4) of

this section for the purpose of monitoring compliance with section

223(a)12(A), (13) and (14) of the JJDP Act.

(C) A needs based analysis must precede a jurisdiction's request

for State approval and be included with the request for OJJDP

concurrence that a collocated facility qualifies as a juvenile

detention facility. The needs based analysis should include, but is not

limited to, consideration of such factors as excessive travel time to

an existing juvenile detention center, crowding in an existing facility

(despite the use of objective detention criteria), obsolescence of an

existing facility, and, in areas where there are no juvenile detention

facilities, a measurable increase in the need for juvenile detention

beds. OJJDP's technical assistance provider to the States should be

involved in the needs based analysis (without cost to the State or

local jurisdiction). The needs based analysis must take into

consideration and be coordinated with the State's plans and programs

designed to establish a continuum of detention care and to assist

detention facilities to provide a full range of services for juvenile

offenders.

(D) Each of the following four criteria must be met in order to

ensure the requisite separateness of a juvenile detention facility that

is collocated with an adult jail or lockup:

(1) Total separation between juvenile and adult facility spatial

areas such that there could be no sight or sound contact between

juveniles and incarcerated adults in the facility. Total separation of

spatial areas can be achieved architecturally, and must provide for no

common use areas (time-phasing is not permissible).

(2) Total separation in all juvenile and adult program areas,

including recreation, education, counseling, dining, sleeping, and

general living activities. There must be an independent and

comprehensive operational plan for the juvenile detention center which

provides for a full range of separate program services. No program

activities may be shared by juveniles and incarcerated adults. However,

equipment and other resources may be used by both populations subject

to security concerns and the criterion in paragraph (e)(3)(i)(D)(1) of

this section.

(3) Separate staff for the juvenile and adult populations,

including management, security, and direct care staff. Staff providing

specialized services (food service, laundry, maintenance and

engineering, etc.) who are not normally in contact with detainees, or

whose infrequent contacts occur under conditions of separation of

juveniles and adults, can serve both populations (subject to State

standards or licensing requirements). The day to day management,

security and direct care functions of the juvenile detention center

must be vested in a totally separate staff, dedicated solely to the

juvenile population within the collocated facilities; and

(4) In States that have established standards or licensing

requirements for juvenile detention facilities, the juvenile facility

must meet the standards (on the same basis as a free-standing juvenile

detention center) and be licensed as appropriate. If there are no State

standards or licensing requirements, then the jurisdiction must

cooperate in a preapproval review of its physical plant, staffing

patterns, and programs by an organization selected and compensated by

OJJDP. This review will be based on prevailing national juvenile

detention standards, and will inform the State's approval process and

concurrence by OJJDP.

(ii) The State must initially determine that the four criteria are

fully met. Upon such determination, the State must submit to OJJDP a

request for concurrence with the State's finding that a separate

juvenile detention facility exists. To enable OJJDP to assess the

separateness of the two facilities, sufficient documentation must

accompany the request to demonstrate that each criterion has been met.

It is incumbent upon the State to make the initial determination

through an on-site facility (or full construction and operations plan)

review and, through the exercise of its oversight responsibility, to

ensure that the separate character of the juvenile detention facility

is maintained by continuing to fully meet the four criteria set forth

above in paragraphs (e)(3)(i)(D)(1)-(4) of this section.

(iii) Collocated juvenile detention facilities approved by the

State and concurred with by OJJDP on or before June 30, 1995 are to be

reviewed against the regulatory criteria and OJJDP policies in effect

at the time of the initial approval and concurrence, except that

facilities approved after the effective date of this regulation, but

prior to July 1, 1995, shall be reviewed against the regulatory

criteria in effect on the day before the effective date of this

regulation, and except that all collocated facilities are subject to

the separate staff requirement established by the 1992 Amendments to

the JJDP Act, and set forth in paragraph (e)(3)(i)(D)(3) of this

section. Unless otherwise indicated, review of previously approved

collocated [[Page 28445]] facilities is expected to occur as part of

the State's regularly scheduled monitoring activities.

(iv) OJJDP's concurrence for facilities considered after June 30,

1995 is limited to one year and thereafter, will be reviewed on an

annual basis. An annual on-site review of the facility must be

conducted by the compliance monitoring staff person(s) representing or

employed by the State agency administering the JJDP Act Formula Grants

Program. OJJDP's concurrence is required annually, and may involve on-

site review by OJJDP staff. The purpose of the annual review is to

determine if compliance with the criteria set forth in paragraphs

(e)(3)(i)(D)(1)-(4) of this section is being maintained, and to assess

the continuing need for the collocated facility and the jurisdiction's

long term plan to move to a free-standing facility (single jurisdiction

or regional) or other detention alternative, unless the juvenile

detention center is part of a justice center, in which case the annual

review will look solely at the four regulatory criteria. An example of

a justice center is a building or a set of buildings in which various

agencies are housed, such as law enforcement, courts, State's

attorneys, public defenders, and probation, in addition to an adult

jail or lockup, and a juvenile detention facility.

(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.

(f) Monitoring of Jails, Detention Facilities and Correctional

Facilities.

(1) Pursuant to section 223(a)(15) of the JJDP Act, and except as

provided by paragraph (f)(7) of this section, the State shall:

(i) Describe its plan, procedure, and timetable for annually

monitoring jails, lockups, detention facilities, correctional

facilities and non-secure facilities. The plan must at a minimum

describe in detail each of the following tasks including the

identification of the specific agency(s) responsible for each task.

(A) Identification of monitoring universe: This refers to the

identification of all residential facilities which might hold juveniles

pursuant to public authority and thus must be classified to determine

if it should be included in the monitoring effort. This includes those

facilities owned or operated by public and private agencies.

(B) Classification of the monitoring universe: This is the

classification of all facilities to determine which ones should be

considered as a secure detention or correctional facility, adult

correctional institution, jail, lockup, or other type of secure or

nonsecure facility.

(C) Inspection of facilities: Inspection of facilities is necessary

to ensure an accurate assessment of each facility's classification and

record keeping. The inspection must include:

(1) A review of the physical accommodations to determine whether it

is a secure or non-secure facility or whether adequate sight and sound

separation between juvenile and adult offenders exists and

(2) a review of the record keeping system to determine whether

sufficient data are maintained to determine compliance with section

223(a) (12), (13) and/or (14).

(D) Data collection and data verification: This is the actual

collection and reporting of data to determine whether the facility is

in compliance with the applicable requirement(s) of section 223(a)

(12), (13) and/or (14). The length of the reporting period should be 12

months of data, but in no case less than 6 months. If the data is self-

reported by the facility or is collected and reported by an agency

other than the State agency designated pursuant to section 223(a)(1) of

the JJDP Act, the plan must describe a statistically valid procedure

used to verify the reported data.

(ii) Provide a description of the barriers which the State faces in

implementing and maintaining a monitoring system to report the level of

compliance with section 223(a) (12), (13), and (14) and how it plans to

overcome such barriers.

(iii) Describe procedures established for receiving, investigating,

and reporting complaints of violation of section 223(a) (12), (13), and

(14). This should include both legislative and administrative

procedures and sanctions.

(2) For the purpose of monitoring for compliance with section

223(a)(12)(A) of the Act a secure detention or correctional facility is

any secure public or private facility used for the lawful custody of

accused or adjudicated juvenile offenders or non-offenders, or used for

the lawful custody of accused or convicted adult criminal offenders.

(3) Valid Court Order. For the purpose of determining whether a

valid court order exists and a juvenile has been found to be in

violation of that valid order all of the following conditions must be

present prior to secure incarceration:

(i) The juvenile must have been brought into a court of competent

jurisdiction and made subject to an order issued pursuant to proper

authority. The order must be one which regulates future conduct of the

juvenile. Prior to issuance of the order, the juvenile must have

received the full due process rights guaranteed by the Constitution of

the United States.

(ii) The court must have entered a judgment and/or remedy in accord

with established legal principles based on the facts after a hearing

which observes proper procedures.

(iii) The juvenile in question must have received adequate and fair

warning of the consequences of violation of the order at the time it

was issued and such warning must be provided to the juvenile and to the

juvenile's attorney and/or legal guardian in writing and be reflected

In the court record and proceedings.

(iv) All judicial proceedings related to an alleged violation of a

valid court order must be held before a court of competent

jurisdiction. A juvenile accused of violating a valid court order may

be held in secure detention beyond the 24-hour grace period permitted

for a noncriminal juvenile offender under OJJDP monitoring policy, for

protective purposes as prescribed by State law, or to assure the

juvenile's appearance at the violation hearing, as provided by State

law, if there has been a judicial determination based on a hearing

during the 24-hour grace period that there is probable cause to believe

the juvenile violated the court order. In such case the juveniles may

be held pending a violation hearing for such period of time as is

provided by State law, but in no event should detention prior to a

violation hearing exceed 72 hours exclusive of nonjudicial days. 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.

(v) Prior to and during the violation hearing the following full

due process rights must be provided:

(A) The right to have the charges against the juvenile in writing

served upon him a reasonable time before the hearing;

(B) The right to a hearing before a court;

(C) The right to an explanation of the nature and consequences of

the proceeding; [[Page 28446]]

(D) The right to legal counsel, and the right to have such counsel

appointed by the court if indigent;

(E) The right to confront witnesses;

(F) The right to present witnesses;

(G) The right to have a transcript or record of the proceedings;

and

(H) The right of appeal to an appropriate court.

(vi) In entering any order that directs or authorizes disposition

of placement in a secure facility, the judge presiding over an initial

probable cause hearing or violation hearing must determine that all the

elements of a valid court order (paragraphs (f)(3) (i), (ii) and (iii)

of this section) and the applicable due process rights (paragraph

(f)(3)(v) of this section) were afforded the juvenile and, in the case

of a violation hearing, the judge must determine that there is no less

restrictive alternative appropriate to the needs of the juvenile and

the community. This determination must be preceded by a written report

to the judge that: reviews the behavior of the juvenile and the

circumstances under which the juvenile was brought before the court and

made subject to such order; determines the reasons for the juvenile's

behavior; and determines whether all dispositions other than secure

confinement have been exhausted or are clearly inappropriate. This

report must be prepared and submitted by an appropriate public agency

(other than a court or law enforcement agency). A multidisciplinary

review team that operates independently of courts or law enforcement

agencies would satisfy this requirement even if some individual members

of the team represent court or law enforcement agencies.

(vii) A non-offender such as a dependent or neglected child cannot

be placed in secure detention or correctional facilities for violating

a valid court order.

(4) Removal exception (section 223(a)(14)). The following

conditions must be met in order for an accused juvenile criminal-type

offender, awaiting an initial court appearance, to be detained up to 24

hours (excluding weekends and holidays) in an adult jail or lockup:

(i) The State must have an enforceable State law requiring an

initial court appearance within 24 hours after being taken into custody

(excluding weekends and holidays);

(ii) The geographic area having jurisdiction over the juvenile is

outside a metropolitan statistical area pursuant to the Bureau of

Census' current designation;

(iii) A determination must be made that there is no existing

acceptable alternative placement for the juvenile pursuant to criteria

developed by the State and approved by OJJDP;

(iv) The adult jail or lockup must have been certified by the State

to provide for the sight and sound separation of juveniles and

incarcerated adults; and

(v) The State must provide documentation that the conditions in

paragraphs(f)(4)(i) through (iv) of this section have been met and

received prior approval from OJJDP. OJJDP strongly recommends that

jails and lockups that incarcerate juveniles be required to provide

youth specific admissions screening and continuous visual supervision

of juveniles incarcerated pursuant to this exception.

(vi) Pursuant to section 223(a)(14) of the JJDP Act, the non-MSA

(low population density) exception to the jail and lockup removal

requirements as described in paragraphs (f)(4)(i) through (v) of this

section shall remain in effect through 1997, and shall allow for secure

custody beyond the twenty four hours period described in paragraph

(f)(4)(i) of this section when the facility is located where conditions

of distance to be traveled or the lack of highway, road, or other

ground transportation do not allow for court appearances within twenty

four hours, so that a brief (not to exceed an additional forty eight

hours) delay is excusable; or the facility is located where conditions

of safety exist (such as severely adverse, life-threatening weather

conditions that do not allow for reasonably safe travel), in which case

the time for an appearance may be delayed until twenty four hours after

the time that such conditions allow for reasonably safe travel. States

may use these additional statutory allowances only where the precedent

requirements set forth in paragraphs (f)(4)(i) through (v) of this

section have been complied with. This may necessitate statutory or

judicial (court rule or opinion) relief within the State from the

twenty four hours initial court appearance standard required by

paragraph (f)(4)(i) of this section. States must document and describe

in their annual monitoring report to OJJDP, the specific circumstances

surrounding each individual use of the distance/ground transportation,

and weather allowances.

(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 the extent of compliance with section

223(a)(12)(A) of the JJDP Act, the report must include, at a minimum,

the following information for the current reporting period:

(A) Dates covered by the current reporting period;

(B) Total number of public and private secure detention and

correctional facilities, the total number reporting, and the number

inspected on-site;

(C) The total number of accused status offenders and nonoffenders,

including out-of-State runaways and Federal wards, held in any secure

detention or correctional facility for longer than twenty four hours

(not including weekends or holidays), excluding those held pursuant to

the valid court order provision as set forth in paragraph (f)(3) of

this section or pursuant to section 922(x) of title 18, United States

Code, or a similar State law;

(D) The total number of accused status offenders (including valid

court order violators, out of state runaways, and Federal wards, but

excluding Title 18 922(x) violators) and nonoffenders securely detained

in any adult jail, lockup, or nonapproved collocated facility for any

length of time;

(E) The total number of adjudicated status offenders and

nonoffenders, including out-of-state runaways and Federal wards, held

for any length of time in a secure detention or correctional facility,

excluding those held pursuant to the valid court order provision or

pursuant to title 18 U.S.C. section 922(x);

(F) The total number of status offenders held in any secure

detention or correctional facility pursuant to the valid court order

provision set forth in paragraph (f)(3) of this section; and

(G) The total number of juvenile offenders held pursuant to title

18 U.S.C. section 922(x).

(ii) To demonstrate the extent to which the provisions of section

223(a)(12)(B) of the JJDP Act are being met, the report must include

the total number of accused and adjudicated status offenders and

nonoffenders placed in facilities that are:

(A) Not near their home community;

(B) Not the least restrictive appropriate alternative; and

(C) Not community-based.

(iii) To demonstrate the extent of compliance with section

223(a)(13) of the JJDP Act, the report must include, at a minimum, the

following information for the current reporting period:

(A) Dates covered by the current reporting period; [[Page 28447]]

(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 from adult criminal offenders in facilities used for the

secure detention and confinement of both juveniles and adults;

(E) The total number of juvenile detention centers located within

the same building or on the same grounds as an adult jail or lockup

that have been concurred with by OJJDP, including a list of such

facilities;

(F) The total number of juveniles detained in collocated facilities

concurred with by OJJDP that were not separated from the management,

security or direct care staff of the adult jail or lockup;

(G) The total number of juvenile detention centers located within

the same building or on the same grounds as an adult jail or lockup

that have not been concurred with by OJJDP, including a list of such

facilities; and

(H) The total number of juveniles detained in collocated facilities

not approved by the State and concurred with by OJJDP, that were not

sight and sound separated from adult criminal offenders.

(iv) To demonstrate the extent of compliance with section

223(a)(14) of the JJDP Act, the report must include, at a minimum, the

following information for the current reporting period:

(A) Dates covered by the current reporting period;

(B) The total number of adult jails in the State AND the number

inspected on-site;

(C) The total number of adult lockups in the State AND the number

inspected on-site;

(D) The total number of adult jails holding juveniles during the

past twelve months;

(E) The total number of adult lockups holding juveniles during the

past twelve months;

(F) The total number of accused juvenile criminal-type offenders

held securely in adult jails, lockups, and collocated facilities not

concurred with by OJJDP, in excess of six hours (including those held

pursuant to the ``removal exception'' as set forth in paragraph (f)(4)

of this section);

(G) The total number of accused juvenile criminal-type offenders

held securely in adult jails, lockups and collocated facilities not

concurred with by OJJDP for less than six hours for purposes other than

identification, investigation, processing, release to parent(s),

transfer to court, or transfer to a juvenile facility following initial

custody;

(H) The total number of adjudicated juvenile criminal-type

offenders held securely in adult jails or lockups and collocated

facilities not concurred with by OJJDP for any length of time;

(I) The total number of accused and adjudicated status offenders

(including valid court order violators) and nonoffenders held securely

in adult jails, lockups and collocated facilities not concurred with by

OJJDP, for any length of time;

(J) The total number of adult jails, lockups, and collocated

facilities not concurred with by OJJDP, in areas meeting the ``removal

exception'' as noted in paragraph (f)(4) of this section, including a

list of such facilities and the county or jurisdiction in which each is

located;

(K) The total number of juveniles accused of a criminal-type

offense who were held in excess of six hours but less than 24 hours in

adult jails, lockups and collocated facilities not concurred with by

OJJDP pursuant to the ``removal exception'' as set forth in paragraph

(f)(4) of this section;

(L) The total number of juveniles accused of a criminal-type

offense who were held in excess of 24 hours but not more than an

additional 48 hours in adult jails, lockups and collocated facilities

not concurred with by OJJDP pursuant to the ``removal exception'' as

noted in paragraph (f)(4) of this section, due to conditions of

distance or lack of ground transportation; and

(M) The total number of juveniles accused of a criminal-type

offense who were held in excess of 24 hours, but not more than an

additional 24 hours after the time such conditions as adverse weather

allow for reasonably safe travel, in adult jails, lockups and

collocated facilities not concurred with by OJJDP, in areas meeting the

``removal exception'' as noted in paragraph (f)(4) of this section.

(6) Compliance. The State must demonstrate the extent to which the

requirements of sections 223(a)(12)(A), (13), (14), and (23) of the Act

are met. If the State fails to demonstrate full compliance with

sections 223(a)(12)(A) and (14), and compliance with sections

223(a)(13) and (23) by the end of the fiscal year for any fiscal year

beginning with fiscal year 1994, the State's allotment under Section

222 will be reduced by twenty five percent for each such failure,

provided that the State will lose its eligibility for any allotment

unless: the State agrees to expend all remaining funds (except planning

and administration, State advisory group set-aside funds and Indian

tribe pass-through funds) for the purpose of achieving compliance with

the mandate(s) for which the State is in noncompliance; or the

Administrator makes discretionary determination that the State has

substantially complied with the mandate(s) for which there is

noncompliance and that the State has made through appropriate executive

or legislative action, an unequivocal commitment to achieving full

compliance within a reasonable time. In order for a determination to be

made that a State has substantially complied with the mandate(s), the

State must demonstrate that it has: Diligently carried out the plan

approved by OJJDP; demonstrated significant progress toward full

compliance; submitted a plan based on an assessment of current barriers

to DMC; and provided an assurance that added resources will be

expended, be it formula grants or other funds, to achieve compliance.

Where a State's allocation is reduced, the amount available for

planning and administration and the required pass-through allocation,

other than State advisory group set-aside, will be reduced because they

are based on the reduced allocation.

(i) Substantial compliance with section 223(a)(12)(A) can be used

to demonstrate eligibility for FY 1993 and prior year formula grant

allocations if, within three years of initial plan submission, the

State has achieved a seventy five percent reduction in the aggregate

number of status offenders and nonoffenders held in secure detention or

correctional facilities, or removal of 100 percent of such juveniles

from secure correctional facilities only. In addition, the State must

make an unequivocal commitment, through appropriate executive or

legislative action, to achieving full compliance by FY 1994. Full

compliance is achieved when a State has removed 100 percent of such

juveniles from secure detention and correctional facilities or can

demonstrate full compliance with de minimis exceptions pursuant to the

policy criteria contained in the Federal Register of January 9, 1981

(46 FR 2566-2569).

(ii) Compliance with section 223(a)(13) has been achieved when a

State can demonstrate that:

(A) The last submitted monitoring report, covering a full 12 months

of data, demonstrates that no juveniles were incarcerated in

circumstances that [[Page 28448]] were in violation of section

223(a)(13); or

(B) (1) State law, regulation, court rule, or other established

executive or judicial policy clearly prohibits the incarceration of all

juvenile offenders in circumstances that would be in violation of

section 223(a)(13);

(2) All instances of noncompliance reported in the last submitted

monitoring report were in violation of, or departures from, the State

law, rule, or policy referred to in paragraph (f)(6)(ii)(B)(1) of this

section;

(3) The instances of noncompliance do not indicate a pattern or

practice but rather constitute isolated instances; and

(4) Existing mechanisms for the enforcement of the State law, rule,

or policy referred to in paragraph (f)(6)(ii)(B)(1) of this section are

such that the instances of noncompliance are unlikely to recur in the

future.

(iii) (A) Full compliance is achieved when a state demonstrates

that the last submitted monitoring report, covering 12 months of actual

data, demonstrates that no juveniles were held in adult jails or

lockups in circumstances that were in violation of section 223(a)(14).

(B) Full compliance with de minimis exceptions is achieved when a

State demonstrates that it has met the standard set forth in either of

paragraphs (f)(6)(iii)(B) (1) or (2) of this section:

(1) Substantive De Minimis Standard. To comply with this standard

the State must demonstrate that each of the following requirements have

been met:

(i) State law, court rule, or other statewide executive or judicial

policy clearly prohibits the detention or confinement of all juveniles

in circumstances that would be in violation of section 223(a)(14);

(ii) All instances of noncompliance reported in the last submitted

monitoring reported were in violation of or departures from, the State

law, rule, or policy referred to In paragraph (f)(6)(iii)(B)(1)(i) of

this section;

(iii) The instances of noncompliance do not indicate a pattern or

practice but rather constitute isolated instances;

(iv) Existing mechanisms for the enforcement of the State law, rule

or policy referred to in paragraph (f)(6)(iii)(B)(1)(i) of this section

are such that the instances of noncompliance are unlikely to recur in

the future; and

(v) An acceptable plan has been developed to eliminate the

noncompliant incidents and to monitor the existing mechanism referred

to in paragraph (f)(6)(iii)(B)(1)(iv) of this section.

(2) Numerical De Minimis Standard. To comply with this standard the

State must demonstrate that each of the following requirements under

paragraphs (f)(6)(iii)(B)(2) (i) and (ii) of this section have been

met:

(i) The incidents of noncompliance reported in the State's last

submitted monitoring report do not exceed an annual rate of 9 per

100,000 juvenile population of the State; and

(ii) An acceptable plan has been developed to eliminate the

noncompliant incidents through the enactment or enforcement of State

law, rule, or statewide executive or judicial policy, education, the

provision of alternatives, or other effective means.

(iii) Exception. When the annual rate for a State exceeds 9

incidents of noncompliance per 100,000 juvenile population, the State

will be considered ineligible for a finding of full compliance with de

minimis exceptions under the numerical de minimis standard unless the

State has recently enacted changes in State law which have gone into

effect and which the State demonstrates can reasonably be expected to

have a substantial, significant and positive impact on the state's

achieving full (100%) compliance or full compliance with de minimis

exceptions by the end of the monitoring period immediately following

the monitoring period under consideration.

(iv) Progress. Beginning with the monitoring report due by December

31, 1990, any State whose prior full compliance status is based on

having met the numerical de minimis standard set forth in paragraph

(f)(6)(iii)(B)(2)(i) of this Sec. 31.303, must annually demonstrate, in

its request for a finding of full compliance with de minimis

exceptions, continued and meaningful progress toward achieving full

(100%) compliance in order to maintain eligibility for a continued

finding of full compliance with de minimis exceptions.

(v) Request Submission. Determinations of full compliance and full

compliance with de minimis exceptions are made annually by OJJDP

following submission of the monitoring report due by December 31 of

each calendar year. Any State reporting less than full (100%)

compliance in any annual monitoring report may request a finding of

full compliance with de minimis exceptions under paragraph

(f)(6)(iii)(B) (1) or (2) of this section. The request may be submitted

in conjunction with the monitoring report, as soon thereafter as all

information required for a determination is available, or be included

in the annual State plan and application for the State's formula grant

award.

(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. ln 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 paragraphs

(f)(6)(iii)(C) (1)-(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 lock-ups for any length of time; or that all status offenders and

nonoffenders securely detained in adult jails and lock-ups for any

length of time were held in violation of an enforceable State law and

did not constitute a pattern or practice within the State; and

(3) Made meaningful progress in removing juvenile criminal-type

offenders from adult jails and lockups. Compliance with this standard

requires the State to document a significant reduction in the number of

jurisdictions securely detaining juvenile criminal-type offenders in

violation of section 223 (a)(14) of the JJDP Act; or a significant

reduction in the number of facilities securely detaining such

juveniles; or a significant reduction in the average length of time

each juvenile criminal-type offender is securely detained in an adult

jail or lock-up; or State legislation has recently been enacted and

taken effect and which the State demonstrates will significantly impact

the secure detention of juvenile criminal-type offenders in adult jails

and lock-ups; 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 lock-up removal

goals and objectives within approved time lines, and that the State

Advisory Group, required by section 223 (a)(3) of the JJDP Act, has

maintained an appropriate involvement in developing and/or implementing

the State's plan; and

(5) Submitted an acceptable plan, based on a assessment of current

jail [[Page 28449]] 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.

(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.

(7) Monitoring report exemption. States which have been determined

by the OJJDP Administrator to have achieved full compliance with

sections 223(a)(12)(A), (a)(14), and compliance with section 223(a)(13)

of the JJDP 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 lockup, detention facilities, to enable an annual

determination of State compliance with sections 223(a)(12)(A), (13),

and (14) of the JJDP Act;

(ii) State legislation has been enacted which conforms to the

requirements of Sections 223(a)(12)(A), (13), and (14) of the JJDP Act;

and

(iii) The enforcement of the legislation is statutorily or

administratively prescribed, specifically providing that:

(A) Authority for enforcement of the statute is assigned;

(B) Time frames for monitoring compliance with the statute are

specified; and

(C) Adequate procedures are set forth for enforcement of the

statute and the imposition of sanctions for violations.

(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.

(1) Analysis. The analysis must be provided in the multiyear

application. A suggested format for the analysis is provided in the

Formula Grant Application Kit.

(2) Product. The product of the analysis is a series of brief

written problem statements set forth in the application that define and

describe the priority problems.

(3) Programs. Applications are to include descriptions of programs

to be supported with JJDP Act formula grant funds. A suggested format

for these programs is included in the application kit.

(4) Performance Indicators. A list of performance indicators must

be developed and set forth for each program. These indicators show what

data will be collected at the program level to measure whether

objectives and performance goals have been achieved and should relate

to the measures used in the problem statement and statement of program

objectives.

(h) Annual Performance Report. Pursuant to section 223(a) and

section 223(a)(22) the State plan shall provide for submission of an

annual performance report. The State shall report on its progress in

the implementation of the approved programs, described in the three-

year plan. The performance indicators will serve as the objective

criteria for a meaningful assessment of progress toward achievement of

measurable goals. The annual performance report shall describe progress

made in addressing the problem of serious juvenile crime, as documented

in the juvenile crime analysis pursuant to section 223(a)(8)(A). 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.

(i) Technical Assistance. States shall include, within their plan,

a description of technical assistance needs. Specific direction

regarding the development and inclusion of all technical assistance

needs and priorities will be provided in the ``Application Kit for

Formula Grants under the JJDPA.''

(j) Minority Detention and Confinement. Pursuant to section

223(a)(23) of the JJDP Act, States must demonstrate specific efforts to

reduce the proportion of juveniles detained or confined in secure

detention facilities, secure correctional facilities, jails and lockups

who are members of minority groups if such proportion exceeds the

proportion such groups represent in the general population, viz., in

most States, youth between ages ten-seventeen are subject to secure

custody. It is essential that States approach this statutory mandate in

a comprehensive manner. Compliance with this provision is achieved when

a State meets the requirements set forth in paragraphs (j)(1) through

(3) of this section:

(1) Identification. Provide quantifiable documentation (State,

county and local level) in the State's FY 1994 Formula Grant Plan (and

all subsequent Multi-Year Plans) Juvenile Crime Analysis and Needs

Assessment to determine whether minority juveniles are

disproportionately detained or confined in secure detention and

correctional facilities, jails and lockups in relation to their

proportion of the State juvenile population. Guidelines are provided in

the OJJDP Disproportionate Minority Confinement Technical Assistance

Manual (see Phase I Matrix). Where quantifiable documentation is not

available to determine if disproportionate minority confinement exists

in secure detention and correctional facilities, jails and lockups, the

State must provide a time-limited plan of action, not to exceed six

months, for developing and implementing a system for the ongoing

collection, analysis and dissemination of information regarding

minorities for those facilities where documentation does not exist.

(2) Assessment. Each State's FY 1994 Formula Grant Plan must

provide a completed assessment of disproportionate minority

confinement. Assessments must, at minimum, identify and explain

differences in arrest, diversion and adjudication rates, court

dispositions other than incarceration, the rates and periods of

prehearing detention in and dispositional commitments to secure

facilities of minority youth in the juvenile justice system, and

transfers to adult court (see Phase II Matrix). If a completed

assessment is not available, the State must submit a time-limited plan

(not to exceed twelve months from submission of the Formula Grant

Application) for completing the assessment.

(3) Intervention. Each State's FY 1995 Formula Grant Plan must,

where disproportionate confinement has been demonstrated, provide a

time-limited plan of action for reducing the disproportionate

confinement of minority juveniles in secure facilities. The

intervention plan shall be based on the results of the assessment, and

must [[Page 28450]] include, but not be limited to the following:

(i) Diversion. Increasing the availability and improving the

quality of diversion programs for minorities who come in contact with

the juvenile justice system, such as police diversion programs;

(ii) Prevention. Providing developmental, operational, and

assessment assistance (financial and/or technical) for prevention

programs in communities with a high percentage of minority residents

with emphasis upon support for community-based organizations (including

non-traditional organizations) that serve minority youth;

(iii) Reintegration. Providing developmental, operational, and

assessment assistance (financial and/or technical) for programs

designed to reduce recidivism by facilitating the reintegration of

minority youth in the community following release from dispositional

commitments to reduce recidivism;

(iv) Policies and procedures. Providing financial and/or technical

assistance that addresses necessary changes in statewide and local,

executive, judicial, and legal representation policies and procedures;

and

(v) Staffing and training. Providing financial and/or technical

assistance that addresses staffing and training needs that will

positively impact the disproportionate confinement of minority youth in

secure facilities.

(4) The time-limited plans of action set forth in paragraphs (j)

(1), (2) and (3) of this section must include a clear indication of

current and future barriers; which agencies, organizations, or

individual(s) will be responsible for taking what specific actions;

when; and what the anticipated outcomes are. The interim and final

outcomes from implementation of the time-limited plan of action must be

reported in each State's Multi-Year Plans and Annual Plan Updates.

Final outcomes for individual project awards are to be included with

each State's annual performance report (See Paragraph (h) of this

Section).

(5) Technical assistance is available through the OJJDP Technical

Assistance Contract to help guide States with the data collection and

analysis, and with programmatic elements of this requirement.

Information from the OJJDP Special Emphasis Initiative on

Disproportionate Minority Confinement pilot sites will be disseminated

as it becomes available.

(6) For purposes of this statutory mandate, minority populations

are defined as: African-Americans, American Indians, Asians, Pacific

Islanders, and Hispanics.

(k) Pursuant to section 223(a)(24) of the JJDP Act, states shall

agree to other terms and conditions as the Administrator may reasonably

prescribe to assure the effectiveness of programs assisted under the

Formula Grant.

Sec. 31.304 Definitions.

(a) Private agency. A private non-profit agency, organization or

institution is:

(1) Any corporation, foundation, trust, association, cooperative,

or accredited institution of higher education not under public

supervision or control; and

(2) Any other agency, organization or institution which operates

primarily for scientific, education, service, charitable, or similar

public purposes, but which is not under public supervision or control,

and no part of the net earnings of which inures or may lawfully inure

to the benefit of any private shareholder or individual, and which has

been held by IRS to be tax-exempt under the provisions of section

501(c)(3) of the 1954 Internal Revenue Code.

(b) Secure. As used to define a detention or correctional facility

this term includes residential facilities which include construction

features designed to physically restrict the movements and activities

of persons in custody such as locked rooms and buildings, fences, or

other physical structures. It does not include facilities where

physical restriction of movement or activity is provided solely through

facility staff.

(c) Facility. A place, an institution, a building or part thereof,

set of buildings or an area whether or not enclosing a building or set

of buildings which is used for the lawful custody and treatment of

juveniles and may be owned and/or operated by public and private

agencies.

(d) Juvenile who is accused of having committed an offense. A

juvenile with respect to whom a petition has been filed In the juvenile

court or other action has occurred alleging that such juvenile is a

juvenile offender, i.e., a criminal-type offender or a status offender,

and no final adjudication has been made by the juvenile court.

(e) Juvenile who has been adjudicated as having committed an

offense. A juvenile with respect to whom the juvenile court has

determined that such juvenile is a juvenile offender, i.e., a criminal-

type offender or a status offender.

(f) Juvenile offender. An individual subject to the exercise of

juvenile court jurisdiction for purposes of adjudication and treatment

based on age and offense limitations by defined as State law, i.e., a

criminal-type offender or a status offender.

(g) Criminal-type offender. A juvenile offender who has been

charged with or adjudicated for conduct which would, under the law of

the jurisdiction in which the offense was committed, be a crime if

committed by an adult.

(h) Status offender. A juvenile offender who has been charged with

or adjudicated for conduct which would not, under the law of the

jurisdiction in which the offense was committed, be a crime if

committed by an adult.

(i) Non-offender. A juvenile who is subject to the jurisdiction of

the juvenile court, usually under abuse, dependency, or neglect

statutes for reasons other than legally prohibited conduct of the

juvenile.

(j) Lawful custody. The exercise of care, supervision and control

over a juvenile offender or non-offender pursuant to the provisions of

the law or of a judicial order or decree.

(k) Other individual accused of having committed a criminal

offense. An individual, adult or juvenile, who has been charged with

committing a criminal offense in a court exercising criminal

jurisdiction.

(l) Other individual convicted of a criminal offense. An

individual, adult or juvenile, who has been convicted of a criminal

offense in court exercising criminal jurisdiction.

(m) Adult jail. A locked facility, administered by State, county or

local law enforcement and correctional agencies, the purpose of which

is to detain adults charged with violating criminal law, pending trial.

Also considered as adult jails are those facilities used to hold

convicted adult criminal offenders sentenced for less than one year.

(n) Adult lockup. Similar to an adult jail except that an adult

lockup is generally a municipal or police facility of a temporary

nature which does not hold persons after they have been formally

charged.

(o) Valid court order. The term means a court order given by a

juvenile court judge to a juvenile who has been brought before the

court and made subject to a court order. The use of the word ``valid''

permits the incarceration of juveniles for violation of a valid court

order only if they received their full due process rights as guaranteed

by the Constitution of the United States.

(p) Local private agency. For the purposes of the pass-through

requirement of section 223(a)(5), a local private agency is defined as

a private non-profit agency or organization that

[[Page 28451]] provides program services within an identifiable unit or

a combination of units of general local government.

Subpart E--General Conditions and Assurances

Sec. 31.400 Compliance with statute.

The applicant State must assure and certify that the State and its

subgrantees and contractors will comply with applicable provisions of

the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351,

as amended, and with the provisions of the Juvenile Justice and

Delinquency Prevention Act of 1974, Pub. L. 93-415, as amended, and the

provisions of the current edition of OJP Financial and Administrative

Guide for Grants, M7100.1.

Sec. 31.401 Compliance with other Federal laws, orders, circulars.

The applicant State must further assure and certify that the State

and its subgrantees and contractors will adhere to other applicable

Federal laws, orders and OMB circulars. These general Federal laws and

regulations are described in greater detail in the Financial and

Administrative Guide for Grants, M7100.1, and the Formula Grant

Application Kit.

Sec. 31.402 Application on file.

Any Federal funds awarded pursuant to an application must be

distributed and expended pursuant to and in accordance with the

programs contained in the applicant State's current approved

application. Any departures therefrom, other than to the extent

permitted by current program and fiscal regulations and guidelines,

must be submitted for advance approval by the Administrator of OJJDP.

Sec. 31.403 Civil rights requirements.

The State assures that it will comply, and that subgrantees and

contractors will comply, with all applicable Federal non-discrimination

requirements, including:

(a) Section 809(c) of the Omnibus Crime Control and Safe Streets

Act as 1968, as amended, and made applicable by section 299(A) of the

Juvenile Justice and Delinquency Prevention Act of 1974, as amended;

(b) Title VI of the Civil Rights Act of 1964, as amended;

(c) Section 504 of the Rehabilitation Act of 1973, as amended;

(d) Title IX of the Education Amendments of 1972;

(e) The Age Discrimination Act of 1975;

(f) The Department of Justice NonDiscrimination regulations, 28 CFR

part 42, subparts C, D, E, and G;

(g) The Department of Justice regulations on disability

discrimination, 28 CFR parts 35 and 39; and

(h) Subtitle A, title II of the Americans with Disabilities Act

(ADA) of 1990.

Shay Bilchik,

Administrator, Office of Juvenile Justice and Delinquency Prevention.

[FR Doc. 95-13046 Filed 5-30-95; 8:45 am]

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