Formula Grants; Correction

DEPARTMENT OF JUSTICE

Office of Justice Programs

Office of Juvenile Justice and Delinquency Prevention

28 CFR Part 31

[OJP No. 1045]

RIN 1121-AA28

Formula Grants; Correction

Date: April 13, 1995.

AGENCY: Department of Justice, Office of Justice Programs, Office of

Juvenile Justice and Delinquency Prevention.

ACTION: Correction to final regulation.

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SUMMARY: This document contains corrections to the Final Regulation,

revising 28 CFR part 31, which was published in the Federal Register on

Friday, March 10, 1995, (60 FR 13330). The regulation revisions

provided clarification and guidance to States in the formulation,

submission and implementation of the State Formula Grants Program under

Part B of Title II of the Juvenile Justice and Delinquency Act of 1974,

as amended by the Juvenile Justice and Delinquency Prevention

Amendments of 1992 (Pub. L. 102-586, November 18, 1992).

The 1992 Amendments reauthorize and modify the Federal assistance

program to State, local governments, and private not-for-profit

agencies for the prevention and control of delinquency and improvement

of the juvenile justice system. This final revision to the existing

regulation provides clarification and guidance to States in the

formulation, submission, and implementation of State Formula Grants

Program plans and determinations of State compliance with plan

requirements. It provides additional flexibility and guidance to

participating States while strengthening several key provisions related

to the deinstitutionalization, separation, jail and lockup removal, and

disproportionate minority confinement plan requirements of the JJDP

Act.

EFFECTIVE DATE: This regulation is effective March 10, 1995.

FOR FURTHER INFORMATION CONTACT: Roberta Dorn, Director, State

Relations and Assistance Division, Office of Juvenile Justice and

Delinquency Prevention (OJJDP), 633 Indiana Avenue NW., Room 543,

Washington, D.C. 20531; (202) 307-5924.

SUPPLEMENTARY INFORMATION: The corrections include the requirement that

collocated juvenile detention facilities approved by the State and

concurred with by OJJDP on or before June 30, 1995, be reviewed against

the regulatory criteria and OJJDP policies in effect at the time of the

initial approval and concurrence. Facilities approved after the

effective date of this regulation and prior to July 1, 1995, will be

reviewed against the regulatory criteria in effect on the day before

the effective date of this regulation. For those collocated juvenile

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

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

an annual basis. The requirement that in order to receive OJJDP's

initial and subsequent concurrences, a collocated juvenile detention

facility must only provide secure custody for juvenile criminal-type

offenders, status offenders accused of violating a valid court order,

and adjudicated delinquents and valid court order violators who are

awaiting disposition hearings or transfer to a long term juvenile

correctional facility, has been eliminated.

Need for Correction

As published in the Federal Register on March 10, 1995, (60 FR

13330), the Final Regulation was an earlier draft version that is

materially different from the final draft that was intended to be

published. These errors are in need of correction.

Correction of Publication

Accordingly, the Final Regulation, as published in the Federal

Register on March 10, 1995, which was the subject of FR Doc. 95-5919,

is corrected as follows:

Sec. 31.301 [Corrected]

Paragraph 1. On page 13334 in amendatory instruction 6, paragraph

(e) of Sec. 31.301 was revised. Paragraph (e) of Sec. 31.301 in the

second column, line 30, the numerals ``1994'' are corrected to read

``1995''.

Sec. 31.302 [Corrected]

Paragraph 2. On page 13334 in amendatory instruction 7, paragraph

(b)(2) of Sec. 31.302 was revised. Paragraph (b)(2) of Sec. 31.302 is

corrected to read as follows:

* * * * *

(b) * * *

(2) Should consider in meeting the statutory membership

requirements and responsibilities of section 223(a)(3) (A)-(E),

appointing at least one member who represents each of the following: A

locally elected official representing general purpose local government;

a law enforcement officer; representatives of juvenile justice

agencies, including a juvenile or family court judge, a probation

officer, a prosecutor, and a person who routinely provides legal

representation to youth in juvenile court; a public agency

representative concerned with delinquency prevention and treatment; a

representative from a private, non-profit organization, such as a

parents group, concerned with teenage drug and alcohol abuse; a high

school principal; a recreation director; a volunteer who works with

delinquent or at risk youth; a person with a special focus on the

family; a youth worker experienced with programs that offer

alternatives to incarceration; persons with special competence in

addressing problems of school violence and vandalism and alternatives

to expulsion and suspension; and persons with knowledge concerning

learning disabilities, child abuse and neglect, and youth violence.

* * * * *

Sec. 31.303 [Corrected]

Paragraph 3. On page 13335, in the second column, in amendatory

instruction 11, paragraph (d)(l)(i) of Sec. 31.303 was revised.

Paragraph (d)(1)(i) of Sec. 31.303, line ten, the word ``no'' is

corrected to read ``any''.

Paragraph 4. On page 13335 in amendatory instruction 13, paragraph

(e)(3) of Sec. 31.303 was revised. Paragraph (e)(3) of Sec. 31.303 is

corrected by removing (e)(3)(v). As corrected, Sec. 31.303(e)(3) reads

as follows:

* * * * *

(e) * * *

(3) Collocated facilities. (i) Determine whether or not a facility

in which juveniles are detained or confined is an adult jail or lockup.

The JJDP Act prohibits the secure custody of juveniles in adult jails

and lockups, except as otherwise provided under the Act and

implementing OJJDP regulations. Juvenile facilities collocated with

these adult facilities are considered adult jails or lockups unless the

paragraph (e)(3)(i)(D) (1)-(4) criteria established in this section are

complied with and the determinations and concurrences set forth in

paragraph (e)(3) (ii), (iii), and (iv) of this section have been made.

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

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

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

lockup. A complex of buildings [[Page 19848]] is considered ``related''

when it shares physical features such as walls and fences services

beyond mechanical services (heating, air conditioning, water and

sewer), or the specialized services that are allowable under paragraph

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

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

collocated facility qualifies as a separate juvenile detention facility

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

this section for the purpose of monitoring compliance with section

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

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

for State approval and be included with the request for OJJDP

concurrence that a collocated facility qualifies as a juvenile

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

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

an existing juvenile detention center, crowding in an existing facility

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

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

facilities, a measurable increase in the need for juvenile detention

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

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

local jurisdiction). The needs based analysis must take into

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

designed to establish a continuum of detention care and to assist

detention facilities to provide a full range of services for juvenile

offenders.

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

ensure the requisite separateness of a juvenile detention facility that

is collocated with an adult jail or lockup:

(1) Total separation between juvenile and adult facility spatial

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

juveniles and incarcerated adults in the facility. Total separation of

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

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

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

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

general living activities. There must be an independent and

comprehensive operational plan for the juvenile detention center which

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

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

equipment and other resources may be used by both populations subject

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

this section;

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

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

specialized services (food service, laundry, maintenance and

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

whose infrequent contacts occur under conditions of separation of

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

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

security and direct care functions of the juvenile detention center

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

juvenile population within the collocated facilities; and

(4) In States that have established standards or licensing

requirements for juvenile detention facilities, the juvenile facility

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

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

standards or licensing requirements, then the jurisdiction must

cooperate in a preapproval review of its physical plant, staffing

patterns, and programs by an organization selected and compensated by

OJJDP. This review will be based on prevailing national juvenile

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

concurrence by OJJDP.

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

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

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

juvenile detention facility exists. To enable OJJDP to assess the

separateness of the two facilities, sufficient documentation must

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

It is incumbent upon the State to make the initial determination

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

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

ensure that the separate character of the juvenile detention facility

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

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

(iii) Collocated juvenile detention facilities approved by the

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

reviewed against the regulatory criteria and OJJDP policies in effect

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

facilities approved after the effective date of this regulation, but

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

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

regulation, and except that all collocated facilities are subject to

the separate staff requirement established by the 1992 Amendments to

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

section. Unless otherwise indicated, review of previously approved

collocated facilities is expected to occur as part of the State's

regularly scheduled monitoring activities.

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

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

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

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

employed by the State agency administering the JJDP Act Formula Grants

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

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

determine if compliance with the criteria set forth in paragraph

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

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

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

or regional) or other detention alternative, unless the juvenile

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

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

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

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

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

jail or lockup and a juvenile detention facility.

* * * * *

Paragraph 5. On page 13337 in amendatory instruction 20, paragraph

(f)(5) of section 31.303 was revised. Paragraph (f)(5) of Sec. 31.303

is corrected by removing (f)(5)(i)(D) and redesignating paragraphs

(f)(5)(i) (E), (F), (G) and (H) as paragraphs (f)(5)(i) (D), (E), (F)

and (G), respectively. As corrected, Sec. 31.303(f)(5) reads as

follows:

* * * * *

(f) * * *

(5) Reporting requirement. The State shall report annually to the

Administrator on the results of monitoring for section 223(a) (12),

(13), and (14) of the JJDP Act. The reporting period should provide 12

months of data, but shall not be less than six [[Page 19849]] months.

The report shall be submitted to the Administrator by December 31 of

each year.

(i) To demonstrate the extent of compliance with section

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

the following information for the current reporting period:

(A) Dates covered by the current reporting period;

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

correctional facilities, the total number reporting, and the number

inspected on-site;

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

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

detention or correctional facility for longer than 24 hours (not

including weekends or holidays), excluding those held pursuant to the

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

section, or pursuant to section 922(x) of Title 18, United States Code,

or a similar State law;

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

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

excluding Title 18 U.S.C. 922(x) violators) and nonoffenders securely

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

for any length of time;

(E) The total number of adjudicated status offenders and

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

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

excluding those held pursuant to the valid court order provision or

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

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

detention or correctional facility pursuant to the valid court order

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

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

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

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

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

the total number of accused and adjudicated status offenders and

nonoffenders placed in facilities that are:

(A) Not near their home community;

(B) Not the least restrictive appropriate alternative; and

(C) Not community-based.

(iii) To demonstrate the extent of compliance with section

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

following information for the current reporting period:

(A) Dates covered by the current reporting period;

(B) The total number of facilities used to detain or confine both

juvenile offenders and adult criminal offenders during the past 12

months and the number inspected on-site;

(C) The total number of facilities used for the secure detention

and confinement of both juvenile offenders and adult criminal offenders

which did not provide sight and sound separation;

(D) The total number of juvenile offenders and nonoffenders not

separated from adult criminal offenders in facilities used for the

secure detention and confinement of both juveniles and adults;

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

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

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

facilities;

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

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

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

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

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

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

facilities; and

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

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

sight and sound separated from adult criminal offenders.

(iv) To demonstrate the extent of compliance with section

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

following information for the current reporting period:

(A) Dates covered by the current reporting period;

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

inspected on-site;

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

inspected on-site;

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

past twelve months;

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

past twelve months;

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

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

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

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

of this section);

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

held securely in adult jails, lockups and collocated facilities not

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

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

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

custody;

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

offenders held securely in adult jails, lockups and collocated

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

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

(including valid court order violators) and nonoffenders held securely

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

OJJDP for any length of time;

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

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

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

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

located;

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

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

adult jails, lockups and collocated facilities not concurred with by

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

(f)(4) of this section;

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

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

additional 48 hours in adult jails, lockups and collocated facilities

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

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

distance or lack of ground transportation; and

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

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

additional 24 hours after the time such conditions as adverse weather

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

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

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

* * * * *

Paragraph 6. On page 13338 in amendatory instruction 23, paragraph

(f)(6)(iii)(A) in Sec. 31.303 was removed and paragraphs (f)(6)(iii)

(B), (C), (D), and (E) of Sec. 31.303 were redesignated as paragraphs

(f)(6)(iii) (A), (B), (C), and (D) of Sec. 31.303, respectively.

Redesignated [[Page 19850]] paragraph (f)(6)(iii)(B) of Sec. 31.303 is

corrected to read as follows:

* * * * *

(f) * * *

(6) * * *

(iii) * * *

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

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

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

(1) Substantive de minimis standard. To comply with this standard

the State must demonstrate that each of the following requirements have

been met:

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

policy clearly prohibits the detention or confinement of all juveniles

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

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

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

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

this section;

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

practice but rather constitute isolated instances;

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

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

section are such that the instances of noncompliance are unlikely to

recur in the future; and

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

noncompliant incidents and to monitor the existing mechanism referred

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

(2) Numerical de minimis standard. To comply with this standard the

State must demonstrate that each of the following requirements under

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

met:

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

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

100,000 juvenile population of the State; and

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

noncompliant incidents through the enactment or enforcement of State

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

provision of alternatives, or other effective means.

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

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

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

minimis exceptions under the numerical de minimis standard unless the

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

effect and which the State demonstrates can reasonably be expected to

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

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

exceptions by the end of the monitoring period immediately following

the monitoring period under consideration.

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

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

having met the numerical de minimis standard set forth in paragraph

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

its request for a finding of full compliance with de minimis

exceptions, continued and meaningful progress toward achieving full

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

finding of full compliance with de minimis exceptions.

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

compliance with de minimis exceptions are made annually by OJJDP

following submission of the monitoring report due by December 31 of

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

compliance in any annual monitoring report may request a finding of

full compliance with de minimis exceptions under paragraph

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

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

information required for a determination is available, or be included

in the annual State plan and application for the State's Formula Grant

Award.

* * * * *

Paragraph 7. On page 13338 in amendatory instruction 23, paragraph

(f)(6)(iii)(D) of Sec. 31.303 was redesignated as paragraph

(f)(6)(iii)(C) of Sec. 31.303. Redesignated paragraph (f)(6)(iii)(C) of

Sec. 31.303 is corrected to read as follows:

* * * * *

(f) * * *

(6) * * *

(iii) * * *

(C) Waiver. Failure to achieve full compliance as defined in this

section shall terminate any State's eligibility for FY 1993 and prior

year formula grants funds unless the Administrator of OJJDP waives

termination of the State's eligibility. In order to be eligible for a

waiver of termination, a State must request a waiver and demonstrate

that it meets the standards set forth in paragraph (f)(6)(iii)(C) (1)

through (7) of this section:

(1) Agrees to expend all of its formula grant award except planning

and administration, advisory group set-aside, and Indian tribe pass-

through funds, to achieve compliance with section 223(a)(14); and

(2) Removed all status and nonoffender juveniles from adult jails

and lockups. Compliance with this standard requires that the last

submitted monitoring report demonstrate that no status offender

(including those accused of or adjudicated for violating a valid court

order) or nonoffender juveniles were securely detained in adult jails

or lockups for any length of time; or that all status offenders and

nonoffenders securely detained in adult jails and lockups for any

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

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

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

offenders from adult jails and lockups. Compliance with this standard

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

jurisdictions securely detaining juvenile criminal-type offenders in

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

reduction in the number of facilities securely detaining such

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

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

jail or lockup; or State legislation has recently been enacted and

taken effect and which the State demonstrates will significantly impact

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

and lockups; and

(4) Diligently carried out the State's jail and lockup removal plan

approved by OJJDP. Compliance with this standard requires that actions

have been undertaken to achieve the State's jail and lockup removal

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

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

maintained an appropriate involvement in developing and/or implementing

the State's plan; and

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

jail and lockup removal barriers within the State, to eliminate

noncompliant incidents; and

(6) Achieved compliance with section 223(a)(15) of the JJDP Act;

and

(7) Demonstrates an unequivocal commitment, through appropriate

executive or legislative action, to achieving full compliance.

* * * * * [[Page 19851]]

Paragraph 8. On page 13338 in amendatory instruction 23, paragraph

(f)(6)(iii)(E) of Sec. 31.303 was redesignated as paragraph

(f)(6)(iii)(D) of Sec. 31.303. Redesignated paragraph (f)(6)(iii)(D) is

corrected to read as follows:

* * * * *

(f) * * *

(6) * * *

(iii) * * *

(D) Waiver maximum. A State may receive a waiver of termination of

eligibility from the Administrator under paragraph (f)(6)(iii)(C) of

this section for a combined maximum of four Formula Grant Awards

through Fiscal Year 1993. No additional waivers will be granted.

* * * * *

John J. Wilson,

Deputy Administrator, Office of Juvenile Justice and Delinquency

Prevention.

[FR Doc. 95-9826 Filed 4-20-95; 8:45 am]

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