Formula Grants

SUMMARY: The Office of Juvenile Justice and Delinquency Prevention

(OJJDP) of the U.S. Department of Justice is publishing the final

revision of the existing Formula Grants Regulation, which implements

part B of Title II of the Juvenile Justice and Delinquency Prevention

(JJDP) Act of 1974, as amended by the Juvenile Justice and Delinquency

Prevention Amendments of 1992.

This final regulation is a further clarification and modification

of the regulations issued in March and April of 1995. It offers greater

flexibility to States and local units of government in carrying out the

Formula Grants Program requirements of the JJDP Act, while reinforcing

the importance of complying with those underlying legal requirements

and the policy objectives from which they stem.

The Department of Justice remains firmly committed to the core

requirements of the JJDP Act, such as the obligation to maintain sight

and sound separation between juveniles and adults. With that in mind,

this regulation is expected to assist jurisdictions that are working

diligently to comply with statutory and regulatory obligations by

expressly providing such flexibility as State authorized transfers of

delinquents who have reached the age of full criminal responsibility to

the criminal justice system and by recognizing certain real-world

factors which can make ``perfect'' compliance unrealistic. These

regulatory changes are in no way intended to evidence any lessening of

the Department's commitment to the core requirements.

EFFECTIVE DATE: This regulation is effective December 10, 1996.

FOR FURTHER INFORMATION CONTACT: Roberta Dorn, Director, State

Relations and Assistance Division, Office of Juvenile Justice and

Delinquency Prevention, U.S. Department of Justice, 633 Indiana Avenue,

NW., Room 543, Washington, DC 20531; (202) 307-5924.

SUPPLEMENTARY INFORMATION:

Description of Major Changes

Contact With Incarcerated Adults

The revised regulation provides definitions of sight and sound

contact to assist in understanding the level of separation that is

required under section 223(a)(13) of the JJDP Act (section 223(a)(13)).

Sight contact is defined as clear visual contact between incarcerated

adults who are in close proximity to juveniles alleged to be or found

to be delinquent, status offenders, and nonoffenders in a secure

institution. Sound contact is defined in the regulation as direct oral

communication between incarcerated adults and juveniles in secure

institutions. While separation must be provided through architectural

or procedural means, the revised regulation provides that sight or

sound contact that is both brief and inadvertent or accidental must be

reported as a violation only if it occurs in secure areas of the

facility that are dedicated to use by juvenile offenders, including any

residential area. A residential area is an area used to confine

individuals overnight, and may include sleeping, shower and toilet, and

day room areas.

Placement of Delinquents in Adult Facilities

State laws are increasingly providing for the mandatory or

permissible transfer (or placement) of adjudicated delinquents to adult

facilities once the delinquent has attained the age of full criminal

responsibility under State law. The revised regulation expressly

provides that the section 223(a)(13) separation requirement is not

violated as a result of contact between an adjudicated delinquent and

adult criminal offenders in a secure institution once the adjudicated

delinquent has reached the age of full criminal responsibility

established by State law, provided that the transfer (or placement) of

the adjudicated delinquent is required or authorized under State law.

Expansion of 6-Hour Hold Exception to Pre and Post Court Appearances

The revised regulation builds upon the existing authority to place

an alleged or adjudicated delinquent juvenile in an adult jail or

lockup for up to 6 hours by providing a 6 hour time period immediately

before and/or after a court appearance, subject to the section

223(a)(13) separation requirement, during the time the delinquent

juvenile is in a secure custody status in the adult jail or lockup.

Collocated Facilities

The revised regulation removes the requirement that a needs-based

analysis precede a jurisdiction's request for State approval of a

juvenile holding facility that is collocated with an adult jail or

lockup to qualify as a separate juvenile detention facility. OJJDP

concurrence with a State agency's decision to approve a collocated

facility will no longer be required. On-site reviews by the State to

determine compliance, coupled with OJJDP's statutorily required review

of the adequacy of state monitoring systems, will be used to insure

that each collocated juvenile detention facility meets and continues to

meet the collocated juvenile detention facility criteria.

The revised regulation permits the sharing of common use

nonresidential areas of collocated adult and juvenile facilities on a

time-phased basis that prevents contact between juveniles and adults.

Secure juvenile detention facilities around the country are routinely

overcrowded. OJJDP's objective is to encourage the development and use

of separately located juvenile facilities whenever possible. Still, it

is recognized that expecting every jurisdiction to create wholly

separate juvenile facilities, including the duplication of costly

infrastructure elements like gymnasiums, cafeterias, and classrooms,

may result in those jurisdictions being unable to provide any secure

juvenile detention capacity. The revised regulation makes it possible

for more jurisdictions to provide juvenile facilities by removing the

requirement that collocated facilities not share program space between

juvenile and adult populations. Utilization of time-phasing will allow

both juveniles and adults access to available educational, vocational,

and recreational areas of collocated facilities. Time-phased use is

explicitly limited to nonresidential areas of collocated facilities and

requires the use of written procedures to ensure that no contact occurs

between detained juveniles and incarcerated adults.

Deinstitutionalization of Status Offenders

The revised regulation expressly provides, formalizing existing

OJJDP policy, that it is permissible to hold an accused status offender

or nonoffender in a secure juvenile detention facility for up to 24

hours, exclusive of weekends and legal holidays, prior to an initial

court appearance and up to 24 hours, exclusive of weekends and legal

[[Page 65133]]

holidays, immediately following an initial court appearance.

Valid Court Order

The revised regulation eliminates the regulatory language

suggesting that jurisdictions use multi-disciplinary review teams to

prepare and submit a written report to a judge who is considering an

order that directs or authorizes the placement of a status offender in

a secure facility for the violation of a valid court order pursuant to

the valid court order exception to section 223(a)(12)(A). Although a

multi-disciplinary team is still an appropriate option, and is

encouraged when practical, this suggestion led to some confusion and,

therefore, the example was unnecessary.

Removal Exception

The revised regulation eliminates the requirement for States to

document and describe, in their annual monitoring report to OJJDP, the

specific circumstances surrounding each individual use of the distance/

ground transportation and weather exceptions to the section 223(a)(14)

jail and lockup removal requirement.

Compliance With Separation Requirement

The revised regulation modifies the compliance standard that

penalized States that have not enacted laws, rules, and regulations, or

policies prohibiting the incarceration of all juvenile offenders under

circumstances that would be in violation of the section 223(a)(13)

separation requirement. These States were not eligible for a finding of

compliance if any instances of noncompliance were sanctioned by state

law, rule or regulation, or policy. Instead, the revised regulation

establishes a single standard applicable to all States regardless of

whether a law, rule or regulation, or policy exists that prohibits the

detention or confinement of juveniles with incarcerated adults in

circumstances that would be in violation of section 223(a)(13),

providing that compliance can be established under circumstances in

which:

(1) the instances of noncompliance do not indicate a pattern or

practice; and either (2) adequate enforcement mechanisms exist; or (3)

an acceptable plan has been developed to eliminate the noncompliant

incidents.

Minority Detention and Confinement

The revised regulation specifically provides that the purpose of

the section 223(a)(23) Disproportionate Minority Confinement core

requirement is to encourage States to programmatically address any

features of its justice system that may account for the

disproportionate detention or confinement of minority juveniles. The

regulation is revised to clearly state that the Disproportionate

Minority Confinement core requirement neither requires nor establishes

numerical standards or quotas in order for a State to achieve or

maintain compliance.

Discussion of Comments

The proposed revisions to the existing Formula Grants Regulation

were published in the Federal Register on July 3, 1996 (61 FR 34770),

for public comment. Written comments were received from thirty-six

respondents on ten issues addressed by the proposed regulation. The

respondents represent a diverse group including child advocacy

organizations, state agencies responsible for carrying out the JJDP

Act, and public interest groups. All comments have been considered by

OJJDP in the issuance of this final regulation.

The following is a summary of the comments and the responses from

OJJDP:

1. Comment: Several respondents raised concern over the proposed

clarification of the Section 223(a)(13) prohibition against contact

between incarcerated adults and juveniles who are in close proximity

but not at such distances as ``several hundred feet.'' These

respondents contended that this statement in the commentary section of

the proposed regulation appears to conflict with the later statement in

the commentary section concerning the prohibition against systematic

contact. These respondents suggested that the ``several hundred feet''

standard would create monitoring difficulties and, consequently, it

should be clarified that ``several hundred feet'' was intended only as

an example and that the ability for a juvenile and adult to communicate

is the key. These respondents felt that it should be made clear that

``systematic, procedural, and condoned contact is always prohibited.''

Response: The Section 223(a)(13) separation requirement is designed

to protect juveniles who are at risk from contact with adult offenders

while under the delinquency jurisdiction of the juvenile justice

system. OJJDP agrees with the comment that ``systematic, procedural,

and condoned contact is always prohibited.'' The ``several hundred

feet'' example was intended to illustrate a common sense approach to

determining if visual ``contact'' or oral ``communication'' is

possible. This is not an issue of systematic, procedural, or condoned

contact, but one of the potential for harm to juveniles. OJJDP does not

believe that a juvenile who is able to see an adult from a significant

distance is in danger of being harmed. Simultaneous use of secure areas

of adult facilities continues to be prohibited and, under the revised

regulation, time-phased use of common use areas to achieve separation

is permitted in both collocated facilities and adult jails, lockups, or

other adult institutions. For collocated facilities, this revision is

designed to allow both juveniles and adults access to available

educational, vocational, and recreational areas common to the two

facilities.

2. Comment: A number of respondents opined that the ``brief and

inadvertent'' contact language of the proposed regulation essentially

changes the Section 223(a)(13) prohibition from ``no contact'' back to

``no regular contact'' for nonresidential areas of institutions.

Relaxing the no contact standard, it is argued, would permit more

violations because violations are already occurring under current

regulations. Several respondents believe this proposed regulation would

``muddy the waters'' and may ``expose children to needless risks'' by

lowering the standards to which states must adhere. They assert that

national policy should set the separation standard at the highest

possible level.

Response: The revised regulation seeks to clarify with

particularity the prohibition of systematic, procedural, or condoned

contact between incarcerated adults and juveniles. It is not the intent

of OJJDP, through the revised regulation, to in any way encourage or

tolerate increased contact between incarcerated juveniles and adults,

or to expose juveniles to greater risk. However, common sense and

practicality suggested that the regulatory definitions of both sight

and sound contact needed to be clarified, so that appropriate and

reasonable parameters would guide State and local policy and practice.

In considering the respondent comments concerning this proposed

regulatory clarification, it is important to note that the obligation

of local jurisdictions housing juveniles to maintain sight and sound

separation by architectural means or by established policies and

procedures remains firmly in place. This obligation, coupled with the

maintenance of policies, practices and facilities designed to maximize

separation, is designed to maintain strict adherence to the ``no

contact'' statutory prohibition between juveniles and adults in secure

custody.

OJJDP also believes, however, that strict adherence to the ``no

contact''

[[Page 65134]]

prohibition is not inconsistent, in view of the lack of a statutory

definition of the word ``contact'', with a recognition that brief and

inadvertent or accidental sight or sound contact may occur, upon

occasion, in nonresidential areas of a secure institution, without

being considered a reportable violation of the separation requirement.

OJJDP believes it would be unfair to penalize jurisdictions working

consistently and genuinely to maintain sight and sound separation

through policies, practices, and facilities architecture if brief and

inadvertent or accidental contact between a juvenile and adult occurs

in common use areas. This recognition should in no way be interpreted

to indicate acceptance or tolerance of such impermissible contacts, but

only as a recognition that in such environments, even the very best

intentioned facility administrators may not prevent all short-term,

accidental contact between juveniles and adults in a portion of the

facility used at different times by both juveniles and adults.

Nonetheless, based on the concern expressed in the comment, OJJDP

has expanded the regulatory language to prohibit contact in any secure

areas of an institution that are dedicated to use by juvenile

offenders, including any residential area. A residential area is an

area used to confine individuals overnight, and may include sleeping,

shower and toilet, and day room areas. OJJDP recognizes that in many

jurisdictions, especially jurisdictions in rural areas, there may be

periods of time when no juveniles are detained in an adult jail or

lockup facility. During these periods, jurisdictions use all areas of

the facility, including those areas dedicated to use by juveniles when

juveniles are present, for incarcerated adults because no contact

between incarcerated adults and juveniles is possible when juveniles

are not present in the facility.

This revision, coupled with the requirement that facilities

establish separation by architectural means or by establishing policies

and procedures for time-phased use of common use areas within the

secure perimeter of an adult jail, lockup, or penal facility, or within

a juvenile detention facility that is collocated with any adult jail or

lockup, helps to insure the safety of detained and confined juveniles.

OJJDP hopes that this explanation will assist those concerned with

the proposed regulation to see that it is in no way intended to

evidence a change in view or policy regarding the importance of

maintaining the sight and sound separation of juveniles from adults in

secure facilities at all times.

3(a). Comment: Several respondents asserted that an adjudicated

delinquent should only be subject to transfer to an adult facility,

such as a prison, once he (or she) reaches the age of full criminal

responsibility, as provided by State law, in circumstances where the

delinquent has been afforded the full due process rights available to a

criminal offender in a criminal court proceeding (e.g. bail, trial by

jury, etc.).

Response: The JJDP Act separation requirement expressly applies to

juveniles who are alleged to be or found to be delinquent. An

individual who has reached the age of full criminal responsibility is

no longer considered a juvenile under the law of a State unless

expressly so provided and would not, therefore, fall under the

protection of the JJDP Act separation requirement. States have a

compelling interest in striking a balance between the goal of achieving

an adjudicated delinquent's well-being through treatment and physical

security and the goals of punishment and protection of the public by

lengthening the period of confinement in appropriate circumstances. The

State of Texas, for example, has instituted a determinate sentencing

system for certain violent offenders which initially places a juvenile

adjudicated delinquent under the jurisdiction of the Texas Youth

Commission and requires the committing court to re-evaluate the

delinquent's placement status when he/she reaches the age of 18. At

that time, the court can transfer the individual, who is now an adult,

to an adult penal institution if warranted. Alternatively, the

delinquent can be retained under the custody of the Texas Youth

Commission to age 21, at which time transfer is mandatory if he/she is

not released. Our review indicates that the caselaw is not definitive

on the issue of whether a failure to provide a juvenile with all the

due process rights of a criminal defendant in a delinquency proceeding

would prohibit such a transfer, on due process or other grounds, to an

adult jail or prison. The regulation continues to prohibit the pro

forma administrative transfer of an adjudicated delinquent who has

reached the age of full criminal responsibility to an adult jail or

prison. However, we believe it is consistent with the JJDP Act and

principles of federalism to allow States to authorize or require the

transfer of such delinquents under State law. While the due process

issue is appropriately a matter of State law and practice, those

jurisdictions contemplating passage of a law to authorize such

transfers should consider whether delinquents subject to incarceration

in the criminal justice system upon reaching the age of full criminal

responsibility should be afforded the same due process rights in the

original delinquency adjudication to which an adult in a criminal court

proceeding is entitled.

3(b). Comment: One respondent opined that where an adjudicated

delinquent is subject to transfer to an adult institution on or after

reaching the age of full criminal responsibility pursuant to State law,

assurances should be required that age-appropriate needs, such as

health, mental health, recreation, and education services will be made

available.

Response: Meeting the basic needs of transferred adjudicated

delinquents should be a priority for any jurisdiction's correctional

system. It is the responsibility of the State to provide for basic

needs and services for all prisoners, including juveniles and young

adults.

3(c). Comment: Several respondents felt that the transfer of

adjudicated delinquents to adult facilities once they reach the age of

full criminal responsibility defeats the purpose of a delinquency

adjudication.

Response: It is important to note that persons eligible for such a

transfer are limited to those who are no longer considered juveniles

under State law. With States increasingly focusing on the transfer of

serious and violent juvenile offenders to criminal court for

prosecution, this type of transfer scheme may result in fewer transfers

of juveniles to the criminal justice system through judicial waiver,

prosecutorial direct-file, and statutory exclusion of certain offenses

from the jurisdiction of the juvenile court. This will help to assure

that appropriate treatment services are provided by the juvenile

justice system while the individual is a juvenile and may serve to

protect juvenile offenders from older delinquents who pose a threat or

whose treatment needs cannot be met by the juvenile correctional

system.

3(d). Comment: Several respondents stated that the transfer of

adjudicated delinquents to adult facilities is not sound policy because

the influences of adult facilities are extremely negative and harmful

to young adults. These respondents further asserted that the risk of

assaults and violence in juvenile facilities increase when wards know

that they are going to be transferred to adult correctional facilities.

This ``split'' disposition has a destabilizing influence on juvenile

programs, according to one respondent. Several respondents stated that

any advances made by juveniles in

[[Page 65135]]

the juvenile justice system through available educational, vocational,

and therapeutic programs will be destroyed as a result of the transfer

to an adult facility.

Response: OJJDP strongly recommends that States enacting a transfer

law provide the transferred adjudicated delinquent with age appropriate

programs. However, this Office is neither aware of any studies

supporting the alleged harm from such transfers nor believes that a

juvenile who is able to remain in a juvenile correctional setting at

least until the age of full criminal responsibility is worse off than

the juvenile who is transferred to the criminal justice system for

felony prosecution and, upon conviction, is incarcerated in the

criminal justice system.

3(e). Comment: One respondent suggested that OJJDP recommend that

States provide separate facilities for delinquent offenders who have

reached the age of full criminal responsibility.

Response: OJJDP agrees that this option merits State consideration.

Such a system has been adopted in Colorado, where older serious and

violent delinquent offenders who have reached the age of full criminal

responsibility and juveniles transferred to criminal court pursuant to

State transfer laws, are placed in secure treatment facilities designed

and operated for youthful offenders.

3(f). Comment: One respondent suggested that the proposed

regulatory change is of great assistance to individual States looking

for appropriate methods to deal with the rising levels of violent

juvenile crime.

Response: The intent of this regulatory change is to provide States

with appropriate flexibility in dealing with serious and violent

delinquent offenders who require sentences that extend into adulthood.

4(a). Comment: Three questions were asked by one respondent

concerning the ``6 hour rule'' that allows an alleged delinquent to be

held in a secure custody status in an adult jail or lockup for up to 6

hours for purposes of processing (while maintaining sight and sound

separation from adult offenders). The proposed regulation would apply

the six hour hold exception to include a six hour period before and/or

after a court appearance (both pre and post adjudication).

(a) Is the 6 hour rule cumulative (i.e. before and after inclusive

of the 6 hours) or is it a separate 6 hours for before and after a

court appearance?

(b) Is the time limit affected by the status of the jail site, i.e.

MSA or nonMSA?

(c) Would the 24 hour rural exception continue to be permitted?

Response: (a) The 6 hour rule is not cumulative. A juvenile may be

held up to 6 hours before a court appearance and up to 6 hours after a

court appearance in an adult jail or lockup.

(b) The time limit is not affected by the status of the jail site;

(c) The 24-hour rural exception is not changed by the regulation.

The 24-hour rural (MSA) exception is a statutory exception that applies

to initial law enforcement custody, which may or may not result in an

initial court appearance. The new six-hour hold exception would apply

in either an MSA or nonMSA jurisdiction both before and/or after a

court appearance.

4(b). Comment: Several respondents suggested that the 6-hour rule

following a court appearance be expanded to 24 hours for rural

jurisdictions because of the expense of identifying and traveling to an

appropriate facility or of constructing a separate detention facility

in a small rural county or group of counties.

Response: The nonMSA, or rural exception, provides a 24-hour

period, exclusive of nonjudicial days (Saturdays, Sundays and

holidays), to detain an alleged delinquent, pending an initial court

appearance, if State law requires such an appearance within the 24-hour

period. Long distance and weather may extend this exception. The 6-hour

hold exception has historically applied when police are holding a

juvenile for investigation or processing a juvenile for purposes of

notifying parents, arranging release, or transporting to a juvenile

facility. Expansion of the 6-hour hold for pre- and post-court

appearances is designed to facilitate court appearances of juveniles

that require transportation. The statutory 24-hour nonMSA exception for

initial court appearances is premised on the need for time to plan the

placement/release of the juvenile. Subsequent court appearances can be

planned in advance, negating the need for an extended placement of the

juvenile in an adult jail or lockup.

4(c). Comment: One respondent found that the 6-hour exception was

too inflexible where no reasonable alternative juvenile placement was

available following arrest. The respondent suggested that a workable

``good faith'' rule be established.

Response: The six-hour exception gives law enforcement officials in

nonMSA jurisdictions the opportunity to make decisions about

investigating, processing, and/or transporting juveniles. States and

local units of government have found the 6-hour exception to be

sufficient where mechanisms are put in place to expedite the handling

of alleged delinquents who need to be detained for investigation or

processing in secure custody in an adult jail or lockup.

4(d). Comment: One respondent organization cited the Institute for

Judicial Administration/American Bar Association (IJA/ABA) Standards

which state that ``The interim detention of accused juveniles in any

facility or part thereof also used to detain adults is prohibited.'' In

support of its opposition to the proposed regulation, this respondent

noted that under conditions where juveniles are held with adults prior

to adjudication, ABA standards recommend a blanket prohibition against

the detention of juveniles with adult inmates prior to adjudication

under any circumstances.

Response: Congress considered the secure confinement of accused

delinquent juveniles for up to 6 hours in an urban jail or lockup to be

a reasonable outside time limit for processing purposes. This period of

time was considered to reflect a ``rule of reason'', as stated in the

House Committee report on the 1980 JJDP Act reauthorization. OJJDP is

not establishing any new policy by this regulation, but rather is

codifying in the regulation what has been the Office's monitoring

policy for 16 years, and extending it to pre- and post-court appearance

holds.

5(a). Comment: One respondent, while supporting the time-phasing of

common use areas of collocated facilities, requested clarification on

whether ``professional treatment staff'' can be ``shared'' between

juvenile and adult populations.

Response: In collocated facilities, professional care staff such as

medical, counseling, or education services continue to be permitted to

serve both adult and juvenile residents, although not at the same time.

5(b) Comment: One respondent asserted that elimination of the

requirement for OJJDP's concurrence in State-approved collocated

facilities weakens the Office's enforcement capabilities.

Response: States will continue to have the responsibility to

approve and monitor these facilities. OJJDP will continue to review the

monitoring practices of States, as well as provide training and

technical assistance. Further, the criteria for the establishment of

such facilities are clearly set forth in Sec. 31.303(e)(3) of the

regulation.

5(c). Comment: Another respondent felt that the regulation should

more

[[Page 65136]]

clearly reflect that collocated facilities are not prohibited and that

these facilities are permissible if established in accordance with the

regulatory criteria set forth to establish that a collocated facility

is a separate and distinct facility from the adult jail or lockup with

which it is collocated.

Response: OJJDP's proposal to eliminate the requirement for its

concurrence in State approval of a collocated facility, and the

elimination of a needs-based analysis, should make it clear that the

establishment of collocated facilities is not prohibited. States may

approve collocated facilities in accordance with State law and policy

as long as each such facility meets the criteria set forth in

Sec. 31.303(e)(3) of the regulation.

5(d). Comment: Another respondent opined that the needs-based

analysis and prohibition of time-phased use should not be eliminated.

Response: A properly constructed and operated collocated facility

that meets the criteria set forth in Sec. 31.303(e)(3) does not create

conditions where the health and safety of juveniles would be

jeopardized. Time-phased use of nonresidential areas allows for

efficient use of these resources which, otherwise, might not be

available to the juvenile population. Time-phased use, if properly

implemented, would not result in any contact between juveniles and

adults. Further, States are encouraged to conduct their own needs-based

analysis. OJJDP technical assistance will remain available, upon State

request, for this purpose.

6(a). Comment: One commentor, in response to the 24 hour detention

exception for status and nonoffenders, stated that nonoffenders should

not be placed in detention facilities. Limited exceptions should be

permitted in the event of a well documented need. In this way,

detention of nonoffenders will not become a pattern or practice.

Response: OJJDP agrees that the detention of nonoffenders, such as

dependent, neglected, or abused children, should not become a pattern

or practice. This authority should be used to meet emergency needs

only. States are encouraged to provide for the return of nonoffenders

to their families or to appropriate shelter care as soon as possible.

6(b). Comment: Another respondent considers the placement of

nonoffenders in secure detention to be a retrenchment of longstanding

national policy in opposition to such a placement.

Response: OJJDP Formula Grants program policy and regulation have

authorized the limited and temporary placement of nonoffenders in

secure detention facilities since 1975. When either status offenders or

nonoffenders are placed in such facilities, Section 223(a)(12)(B)

encourages States to place the status offender or nonoffender in

facilities which are the least restrictive alternative appropriate to

the needs of the child and the community. The provision does not change

established policy and is intended to provide adequate time to arrange

for appropriate placement prior to or following an initial court

appearance. Because the current statutory definition of ``secure

detention facility'' includes dedicated facilities for nonoffenders,

removal of the 24 hour hold exception's applicability to nonoffenders

would also prohibit the secure holding of nonoffender juveniles in

dedicated facilities. This issue needs to be addressed statutorily

before OJJDP can propose a change to the 24 hour hold exception's

applicability to nonoffenders.

6(c). Comment: One respondent believes that placement of status

offenders with children accused of delinquency can stigmatize them as

delinquent and that the proposed regulation dilutes OJJDP's strong

regulatory support for the deinstitutionalization of status offender

and nonoffender juveniles. This respondent supports the placement of

status offenders in secure residential facilities for up to six hours

and only when law enforcement is unable to contact a parent, custodian,

or relative, unreasonable distance exists, the juvenile refuses to be

taken home, or law enforcement is otherwise unable to make arrangements

for the safe release of the juvenile.

Response: OJJDP has, since 1975, authorized the secure short-term

detention of status offenders and nonoffenders in juvenile detention

facilities. While blanket use of this authority without regard to the

facts and circumstances of each juvenile taken into custody would be a

poor policy, State and local governments should determine the specific

law and policy that will govern the use of this authority.

7(a). Comment: Two respondents commented regarding revision of

Sec. 31.303(f)(3)(vi), authorizing the use of multi-disciplinary teams

to make recommendations on the use of secure confinement for a valid

court order violator, contending that such teams are an important tool

for the valid court order process and that the language should not be

deleted. Another commented that language should be added to clarify

that multi-disciplinary teams are only a suggested way of meeting the

requirement for an independent review team and that court or law

enforcement personnel can still serve on such a team.

Response: Multi-disciplinary teams may still be utilized for the

purpose of preparing and submitting a written report to a judge

considering an order to place a status offender in a secure facility

for violation of a valid court order.

The suggestion of multi-disciplinary teams in the existing

regulation was meant to be an example of one mechanism that would

fulfill the statutory requirement. However, this apparently created the

impression that only multi-disciplinary teams could be utilized. In

fact, the review could be conducted by an individual, agency, or team

representing a noncourt or law enforcement agency.

7(b). Comment: One comment opposed the deletion of language

requiring that secure confinement represent the least restrictive

alternative ``appropriate to the needs of the juvenile and the

community.'' This respondent felt that removal of this language lessens

the judge's overall responsibility to ensure the appropriateness of the

disposition in light of other available placement.

Response: Section 103(16)(C)(iii) of the JJDP Act and

Sec. 31.303(f)(3)(vi) of the regulation require that a disposition of

secure confinement must consider all alternative dispositions

(including treatment) to placement in a secure detention or secure

correctional facility. Removal of the referenced language does not

diminish the responsibility of the court to consider alternatives to

secure confinement. However, the referenced nonstatutory language is

vague and does not provide meaningful guidance.

7(c). Comment: Another comment requested clarification of why the

words ``of a status offender'' were added to the language ``In entering

any order that directs or authorizes the placement of a status offender

in a secure facility, the judge presiding over an initial probable

cause hearing or violation hearing must. * * *'' in Section

31.303(f)(3)(vi).

Response: The change was intended to underscore that the valid

court order (VCO) provision applies solely to status offenders. A

nonoffender may not be placed in secure confinement for any length of

time for violation of a court order.

7(d). Comment: One respondent recommended the deletion of the VCO

requirement for an independent review and determination of the reasons

for the juvenile's behavior. This respondent

[[Page 65137]]

insisted that the first was difficult to monitor and the latter

impossible to determine, asking ``How can the court ascertain the

reasons for the juvenile's behavior?''. Another respondent commented

that the VCO provision should be a recommendation rather than a

requirement.

Response: The use of the independent review standard under the

valid court order exception is statutorily established in Section

223(a)(12)(A) and the term ``valid court order'' is defined in Section

103(16) of the JJDP Act. Therefore, they cannot be deleted or modified

by regulation.

8. Comment: Comments were received both in favor of and opposed to

the proposal to eliminate the reporting requirement for each use of the

ground/distance and weather exceptions to the jail and lockup removal

exception. Those opposed to the change are concerned that it will

encourage abuses of the rule and lead to more youth in adult jails and

lockups, in violation of the statute.

Response: Enforcement of this provision will continue to be a State

responsibility that is subject to on'site monitoring and verification

by OJJDP during compliance monitoring visits to States utilizing this

jail and lockup removal exception. The changes streamline the process

and remove an unnecessary administrative burden.

9(a). Comment: Several respondents felt that the ``relaxation'' of

State reporting and monitoring requirements related to the separation

requirement is ``dangerous'' and could cause States to slide into

noncompliance. States might view this as an opportunity to relax their

oversight responsibility.

Response: It is not OJJDP's intent to encourage States to weaken

their commitment to the core requirements of the JJDP Act. However,

OJJDP believes that isolated violations of the separation requirement

that do not represent a pattern or practice should not jeopardize a

State's ability to access federal funds. OJJDP remains fully committed

to the enforcement of Section 223(a)(13) of the JJDP Act requiring the

separation of juvenile delinquents from adult offenders.

9(b). Comment: One respondent commented that the existence of state

laws, regulations, or court rules is the only mechanism that provides

any true assurance that future violations of the separation requirement

will not occur in a given jurisdiction. Another felt that eliminating

this requirement will mean that States will abandon their efforts to

obtain conforming laws, regulations, and court rules in order to

enforce the separation core requirement. A third respondent felt that

all States should have a policy that mirrors the JJDP Act separation

requirement.

Response: OJJDP encourages States to retain existing laws,

regulations, and court rules mirroring the separation requirement.

OJJDP also encourages States to utilize other effective enforcement

tools including: training and technical assistance workshops; on-site

training for law enforcement and adult jail and lockup personnel; and

development of alternatives to incarceration.

9(c). Comment: One commentor suggested that until such time as

OJJDP has unlimited resources, there is no way that the existence of a

``pattern or practice'' of noncompliance can be monitored.

Response: Section 223(a)(15) requires States to ``provide for an

adequate system of monitoring jails, detention facilities, and

nonsecure facilities to ensure that the requirements of paragraph

(12)(A), paragraph (13) and paragraph (14) are met, and for annual

reporting of the results of such monitoring to the Administrator; * *

*''. It is OJJDP's position that State monitoring systems successfully

identify the vast majority of violations and State monitoring reports

can be used to identify whether reported violations establish a pattern

or practice of separation violations in the State.

9(d). Comment: A single separation standard applicable to all

States for measuring compliance based on de minimis violations that do

not indicate a pattern or practice is a fair standard, according to one

respondent. Moreover, it is less cumbersome than the present compliance

requirement. Another respondent felt that it is clearly appropriate to

find overall compliance within the separation requirement even if

individual violations have occurred, as long as no pattern or practice

exists.

Response: It is OJJDP's intent to treat all States in a fair and

equitable manner. In addressing violations of Section 223(a)(13) of the

JJDP Act in terms of a pattern or practice, OJJDP's across the board

approach is equitable to the States, providing a substantive de minimis

standard for the separation requirement.

10(a). Comment: A commentor noted that the addition of the word

``programmatically'' in Section 31.303(j) to clarify that ``the purpose

of the statute and regulation is to encourage States to address

programmatically.* * *'' the disproportionate minority confinement

(DMC) core requirement (Section 223(a)(23)) will limit the focus of the

States and move them away from alternative ways to address the over-

representation of minorities in secure facilities.

Response: OJJDP notes that the addition of the word

``programmatically'' does not restrict a State's options for addressing

DMC. States are encouraged to examine all aspects of DMC and address

any features of its juvenile or criminal justice systems that may

contribute to DMC as identified by the State.

10(b). Comment: Another respondent stated that the regulation needs

to reflect a broader examination of minority over-representation. Since

1992, States have spent considerable time and dollars reviewing their

juvenile justice systems in their entirety. The clarification to the

DMC core requirement provides that States should address

``programmatically'' any feature of its justice system that accounts

for the disproportionate detention or confinement of minority

juveniles. However, the entire system should be analyzed, not just

juvenile detention or confinement.

Response: The regulation provides for a broad examination of the

DMC issue, including all decision points in the juvenile justice

system, and encourages States to address ``any feature of its justice

system'' that accounts for DMC and not just those that ``may account

for the disproportionate detention or confinement.'' The latter

language is taken verbatim from the statutory language of Section

223(a)(23) of the JJDP Act.

Executive Order 12866

This final rule is 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 entitlement, grants, user fees, or loan programs or the rights and

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

or policy issues arising out of legal mandates, the President's

priorities or the principles of Executive Order No. 12866, and

accordingly this rule has not been reviewed by the Office of Management

of Budget. This regulation has been drafted and reviewed in accordance

with Executive Order 12866, Section 1(b), Principles of Regulation.

[[Page 65138]]

Regulatory Flexibility Act

This final rule, if promulgated, will not have a ``significant''

economic impact on a substantial number of small ``entities'' as

defined by the Regulatory Flexibility Act. This action is intended to

relieve existing requirements in the Formula Grants program and to

clarify other provisions so as to promote compliance with its

provisions by States participating in the program.

Paperwork Reduction Act

No collections of information requirements are contained in or

affected by this regulation pursuant to the Paperwork Reduction Act,

codified at 44 U.S.C. 3504(H).

Intergovernmental Review of Federal Programs

In accordance with Executive Order 12372 and the Department of

Justice's implementing regulation 28 CFR Part 30, States must submit

Formula Grant Program applications to the State ``Single Point of

Contact,'' if one exists. The State may take up to 60 days from the

application date to comment on the application.

Lists of Subjects in 28 CFR Part 31

Grant programs--law, Juvenile delinquency, Reporting and

recordkeeping requirements.

For the reasons set forth in the preamble 28 CFR Part 31 is amended

as follows:

PART 31--[AMENDED]

1. The authority citation for Part 31 continues to read as follows:

Authority: 42 U.S.C. 5601 et seq.

2. Section 31.303 is amended to read as follows:

a. Paragraphs (d)(1)(i) and (d)(1)(v) are revised;

b. Paragraphs (e)(2) and (e)(3) are revised;

c. Paragraphs (f)(2), (f)(3)(vi), (f)(4)(vi), (f)(5)(i)(C),

(f)(5)(iii), (f)(5)(iv), (f)(6)(i), and (f)(6)(ii) are revised;

d. Paragraph (f)(4)(iv) is amended by removing ``and'' at the end

of the paragraph and paragraph (f)(4)(v) is amended by removing the

period at the end of the paragraph and adding ``; and'' in its place;

and

e. Paragraph (j) introductory text is amended by adding two

sentences following the second sentence.

The additions and revisions read as follows:

Sec. 31.303 Substantive requirements.

* * * * *

(d) * * *

(1) * * *

(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'' includes any physical or

sustained sight or sound contact between juvenile offenders in a secure

custody status and incarcerated adults, including inmate trustees. A

juvenile offender in a secure custody status is one who is physically

detained or confined in a locked room or other area set aside or used

for the specific purpose of securely detaining persons who are in law

enforcement custody. Secure detention or confinement may result either

from being placed in such a room or area and/or from being physically

secured to a cuffing rail or other stationary object. Sight contact is

defined as clear visual contact between incarcerated adults and

juveniles within close proximity to each other. Sound contact is

defined as direct oral communication between incarcerated adults and

juvenile offenders. Separation must be accomplished architecturally or

through policies and procedures in all secure areas of the facility

which include, but are not limited to, such areas as admissions,

sleeping, and shower and toilet areas. Brief and inadvertent or

accidental contact between juvenile offenders in a secure custody

status and incarcerated adults in secure areas of a facility that are

not dedicated to use by juvenile offenders and which are

nonresidential, which may include dining, recreational, educational,

vocational, health care, sally ports or other entry areas, and

passageways (hallways), would not require a facility or the State to

document or report such contact as a violation. However, any contact in

a dedicated juvenile area, including any residential area of a secure

facility, between juveniles in a secure custody status and incarcerated

adults would be a reportable violation.

* * * * *

(v) Assure that adjudicated delinquents are not reclassified

administratively and transferred to an adult (criminal) correctional

authority to avoid the intent of separating juveniles from adult

criminals in jails or correctional facilities. A State is not

prohibited from placing or transferring an alleged or adjudicated

delinquent who reaches the State's age of full criminal responsibility

to an adult facility when required or authorized by State law. However,

the administrative transfer, without statutory direction or

authorization, of a juvenile offender to an adult correctional

authority, or a transfer within a mixed juvenile and adult facility for

placement with adult criminals, either before or after a juvenile

reaches the age of full criminal responsibility, is prohibited. A State

is also precluded from transferring adult offenders to a juvenile

correctional authority for placement in a juvenile facility. This

neither prohibits nor restricts the waiver or transfer of a juvenile to

criminal court for prosecution, in accordance with State law, for a

criminal felony violation, nor the detention or confinement of a waived

or transferred criminal felony violator in an adult facility.

* * * * *

(e) * * *

(2) Describe the barriers that a State faces in removing all

juveniles from adult jails and lockups. This requirement excepts only

those alleged or adjudicated juvenile delinquents placed in a jail or a

lockup for up to six hours from the time they enter a secure custody

status or immediately before or after a court appearance, 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 absent

compliance with criteria established in paragraphs (e)(3)(i)(C)(1)

through (4) of this section.

(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)(C)(3) of this section.

(B) The State must determine whether a collocated facility

qualifies as a separate juvenile detention facility under the four

criteria set forth in paragraphs (e)(3)(i)(C) (1) through (4) of this

section for the purpose of monitoring compliance with section 223(a)

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

[[Page 65139]]

(C) 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) Separation between juveniles and adults such that there could

be no sustained sight or sound contact between juveniles and

incarcerated adults in the facility. Separation can be achieved

architecturally or through time-phasing of common use nonresidential

areas; and

(2) Separate juvenile and adult programs, including recreation,

education, vocation, counseling, dining, sleeping, and general living

activities. There must be an independent and comprehensive operational

plan for the juvenile detention facility which provides for a full

range of separate program services. No program activities may be shared

by juveniles and incarcerated adults. Time-phasing of common use

nonresidential areas is permissible to conduct program activities.

Equipment and other resources may be used by both populations subject

to security concerns; and

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

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

specialized services (medical care, 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, OJJDP encourages States to

establish administrative requirements that authorize the State to

review the facility's physical plant, staffing patterns, and programs

in order to approve the collocated facility based on prevailing

national juvenile detention standards.

(ii) The State must determine that the four criteria are fully met.

It is incumbent upon the State to make the 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)(C) (1) through (4) of this section.

(iii) Collocated juvenile detention facilities approved by the

State and concurred with by OJJDP before December 10, 1996 may be

reviewed by the State against the regulatory criteria and OJJDP

policies in effect at the time of the initial approval and concurrence

or against the regulatory criteria set forth herein, as the State

determines. Facilities approved on or after the effective date of this

regulation shall be reviewed against the regulatory criteria set forth

herein. 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)(C)(3) of this section.

(iv) 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. The

purpose of the annual review is to determine if compliance with the

criteria set forth in paragraphs (e)(3)(i)(C) (1) through (4) of this

section is being maintained.

* * * * *

(f) * * *

* * * * *

(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 nonoffenders, or used for

the lawful custody of accused or convicted adult criminal offenders.

Accused status offenders or nonoffenders in lawful custody can be held

in a secure juvenile detention facility for up to twenty-four hours,

exclusive of weekends and holidays, prior to an initial court

appearance and for an additional twenty-four hours, exclusive of

weekends and holidays, following an initial court appearance.

(3) * * *

(vi) In entering any order that directs or authorizes the placement

of a status offender 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 obtain and review a

written report 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).

* * * * *

(4) * * *

(vi) Pursuant to section 223(a)(14) of the JJDP Act, the nonMSA

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

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

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

custody beyond the twenty-four hour period described in paragraph

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

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

ground transportation do not allow for court appearances within 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 hour initial court appearance standard required by

paragraph (f)(4)(i) of this section.

(5) * * *

(i) * * *

(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 (which prohibits the possession of a handgun by a juvenile), or a

similar State law. A juvenile who violates this statute, or a similar

state law, is

[[Page 65140]]

excepted from the deinstitutionalization of status offenders

requirement;

* * * * *

(iii) To demonstrate the extent of compliance with section

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

following information for the current reporting period:

(A) Dates covered by the current reporting period;

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

juvenile offenders and adult criminal offenders during the past 12

months and the number inspected on-site;

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

confinement of both juvenile offenders and adult criminal offenders

which did not provide sight and sound separation;

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

separated from adult criminal offenders in facilities used for the

secure detention and confinement of both juveniles and adults;

(E) The total number of State approved juvenile detention centers

located within the same building or on the same grounds as an adult

jail or lockup, including a list of such facilities;

(F) The total number of juveniles detained in State approved

collocated facilities 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 approved by the State, including a list of such

facilities; and

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

not approved by the State 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 unapproved collocated

facilities 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 unapproved collocated

facilities for less than six hours for purposes other than

identification, investigations, 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 unapproved

collocated facilities in excess of six hours prior to or following a

court appearance or for any length of time not related to a court

appearance;

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

(including valid court order violators) and nonoffenders held securely

in adult jails, lockups and unapproved collocated facilities for any

length of time;

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

collocated facilities 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 unapproved collocated facilities 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 unapproved collocated

facilities 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

unapproved collocated facilities, in areas meeting the ``removal

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

(6) * * *

(i) Full compliance with section 223(a)(12)(A) is achieved when a

State has removed 100 percent of status offenders and nonoffenders 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 (copies are

available from the Office of General Counsel, Office of Justice

Programs, 633 Indiana Ave., N.W., Washington, D.C. 20531).

(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 were in violation of section 223(a)(13); or

(B)(1) The instances of noncompliance reported in the last

submitted monthly report do not indicate a pattern or practice but

rather constitute isolated instances; and

(2)(i) Where all instances of noncompliance reported were in

violation of or departure from State law, rule, or policy that clearly

prohibits the incarceration of all juvenile offenders in circumstances

that would be in violation of Section 223(a)(13), existing enforcement

mechanisms are such that the instances of noncompliance are unlikely to

recur in the future; or

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

noncompliant incidents.

* * * * *

(j) * * * The purpose of the statute and the regulation in this

part is to encourage States to address, programmatically, any features

of its justice system, and related laws and policies, that may account

for the disproportionate detention or confinement of minority juveniles

in secure detention facilities, secure correctional facilities, jails,

and lockups. The disproportionate minority confinement core requirement

neither establishes nor requires numerical standards or quotas in order

for a State to achieve or maintain compliance. * * *

* * * * *

Dated: December 5, 1996.

Shay Bilchik,

Administrator, Office of Juvenile Justice and Delinquency Prevention.

[FR Doc. 96-31316 Filed 12-9-96; 8:45 am]

BILLING CODE 4410-18-P