[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17961]


[[Page Unknown]]

[Federal Register: July 25, 1994]


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Part III





Department of Justice





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Office of Juvenile Justice and Delinquency Prevention



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28 CFR Part 31



Juvenile Justice and Delinquency Prevention Office; Formula Grants; 
Proposed Rule
DEPARTMENT OF JUSTICE

Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention

28 CFR Part 31

 

OJJDP Formula Grants Regulation

AGENCY: Office of Justice Programs, Office of Juvenile Justice and 
Delinquency Prevention.

ACTION: Proposed rule and request for public comment.

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SUMMARY: The Office of Juvenile Justice and Delinquency Prevention 
(OJJDP) is publishing for public comment proposed amendments to the 
existing Formula Grants Regulation. The Formula Grants Regulation 
implements Part B of Title II of the Juvenile Justice and Delinquency 
Prevention (JJDP) Act of 1974, as amended by the Juvenile Justice and 
Delinquency Prevention Amendments of 1992. The 1992 Amendments 
reauthorize and modify the Federal assistance program to state and 
local governments, and private not-for-profit agencies for juvenile 
justice and delinquency prevention improvements. The proposed 
amendments to the existing Regulation provides clarification and 
guidance to States in the formulation, submission and implementation of 
State Formula Grant plans and determinations of State compliance with 
plan requirements. It provides additional flexibility and guidance to 
participating States while strengthening several key provisions related 
to the mandates of the JJDP Act.

DATES: Interested persons are invited to submit written comments which 
must be received on or before September 8, 1994.

ADDRESSES: Address all comments to Mr. John J. Wilson, Acting 
Administrator, Office of Juvenile Justice and Delinquency Prevention 
(OJJDP), 633 Indiana Avenue NW., room 742, Washington, DC 20531.

FOR FURTHER INFORMATION CONTACT: Ms. Roberta Dorn, Director, State 
Relations and Assistance Division, Office of Juvenile Justice and 
Delinquency Prevention (OJJDP), 633 Indiana Avenue NW., room 543, 
Washington, DC 20531; (202) 307-5924.

SUPPLEMENTARY INFORMATION: The Office of Juvenile Justice and 
Delinquency Prevention is proposing revisions to the existing 
Regulation, codified at 28 CFR Part 31, and inviting public comment on 
the proposed changes. The proposed changes in the regulatory text 
accomplish the following:
    (1) continue the authority citation for the regulation;
    (2) revise Sec. 31.3 to establish a mandatory deadline for the 
submission of State Formula Grant applications;
    (3) revise Sec. 31.102 to provide that the State agency must, at a 
minimum, assign one full-time Juvenile Justice Specialist to manage the 
Formula Grants Program;
    (4) revise Sec. 31.301 to provide for statutory changes in the base 
allocation for States and Territories;
    (5) revise Sec. 31.303(e)(3) to modify the requirements for a 
facility located within the same building or on the same grounds as an 
adult jail or lockup to qualify as a separate juvenile detention 
facility;
    (6) delete Sec. 31.303(c)(3) and (e)(4) related to substantial 
compliance with the deinstitutionalization of status offenders (DSO) 
and jail and lockup removal requirements respectively, and section 
31.303(d)(2) related to progress toward compliance with the separation 
provision;
    (7) revise Sec. 31.303(d)(1) to provide for statutorily required 
enhanced separation requirements;
    (8) revise Sec. 31.303(f)(3)(iv) to provide that a status offender 
alleged or found in a judicial hearing to have violated a valid court 
order may be held in a secure juvenile detention or correctional 
facility and not in an adult jail or lockup. This proposed revision, 
based on the 1992 Amendments, is effective for, and must be reflected 
in, State monitoring reports due by December 31, 1994, and subsequent 
monitoring reports;
    (9) revise Sec. 31.303(f)(3) to require that status offenders 
receive the full due process protections guaranteed by the Constitution 
prior to the issuance of a court order regulating future behavior, and 
that prior to a secure dispositional placement of a status offender 
found to have violated a valid court order, the court must review and 
consider a report on possible dispositional alternatives for the youth, 
the report to be prepared by a public agency or organization other than 
a court or law enforcement agency;
    (10) revise Sec. 31.303(f)(4) to provide for expansion of the non-
MSA exception to jail and lockup removal to address adverse weather and 
distance/lack of ground transportation;
    (11) revise Sec. 31.303 (f)(5) to require that States must, in 
completing their annual monitoring report, report as violations of the 
section 223(a)(12)(A) deinstitutionalization requirement the number of 
status offenders (including those status offenders accused of violating 
a valid court order) and nonoffenders held in secure custody in an 
adult jail or lockup for any length of time. This proposed policy-based 
revision is effective for, and must be reflected in, State monitoring 
reports due by December 31, 1995, and subsequent monitoring reports;
    (12) delete Sec. 31.303(f)(6)(iii)(A) related to substantial 
compliance with the jail and lockup removal requirement and redesignate 
subsequent paragraphs;
    (13) revise Sec. 31.303(f)(6)(iii)(C), as redesignated, to allow 
States that have reduced the number of status and nonoffenders securely 
detained or confined in jails and lockups to less than 9 per 100,000 
juvenile population in the State, and can demonstrate meaningful 
progress in removing juvenile criminal-type offenders, to qualify for a 
waiver of termination for annual fund allocations through Fiscal Year 
1993, when full compliance with the jail and lockup removal requirement 
has not been achieved. This section is also revised to require that a 
State seeking a waiver of termination demonstrate an ``unequivocal'' 
commitment to achieving full compliance;
    (14) revise Sec. 31.303(f)(6)(iii)(D), as redesignated, to increase 
the maximum number of waivers that may be granted to a State from three 
to four;
    (15) revise Sec. 31.303(f)(6) to provide that failure to comply 
with the subsection (a)(12)(A), (13), (14) or (23) mandates for any 
fiscal year beginning with 1994, will result in the State's Formula 
Grant allocation being reduced by 25% for each such failure;
    (16) revise Sec. 31.303(h) to require the submission of annual 
performance reports by June 30, beginning with calendar year 1995; and
    (17) revise Sec. 31.303(j) to enhance State requirements for 
demonstrating compliance with the section 223(a)(23) mandate on 
disproportionate minority confinement, and to establish timelines for 
compliance.

Application Deadline

    Section 31.1 currently requires that Formula Grant applications and 
related plans or plan updates for each fiscal year should be submitted 
to OJJDP by August 1st (60 days prior to the beginning of the fiscal 
year) or within 60 days after States are officially notified of each 
fiscal year's Formula Grants Program allocation.
    A number of States have submitted applications sufficiently late in 
recent fiscal years to impede orderly and timely application processing 
by OJJDP. This has resulted in an increased number of special 
conditions and a need for time consuming follow-up by State Relations 
and Assistance Division staff.
    The submission requirement would be changed to require that Fiscal 
Year 1995 applications and all subsequent applications shall be 
submitted to OJJDP no later than March 31 of the fiscal year for which 
the funds were allocated. This submission date would allow OJJDP 
adequate time to conduct a full review of each State's plan or plan 
update, give States the opportunity to address any deficiencies in the 
application, plan or plan update, or budget prior to award, and assure 
complete application processing and award of funds prior to the end of 
the fiscal year.

State Agency Structure--Staffing

    In addition to the current ``adequate staff'' requirement of 
Sec. 31.102 for the State agency administering Formula Grant funds, the 
Regulation is revised to provide that a participating State agency 
must, at a minimum, assign one full-time Juvenile Justice Specialist to 
manage the Formula Grants Program. OJJDP's experience indicates that 
the complexity of the Formula Grants program justifies the attention of 
at least one full-time Juvenile Justice Specialist in each State to 
perform and oversee required planning and administration activities 
including: developing, announcing, competing, packaging, awarding, 
evaluating, and overseeing subawards, developing programs to address 
disproportionate minority confinement issues and provide for effective 
use of Indian tribe pass-through funds; providing for program and 
project monitoring; playing a central role in preparing the three year 
program plan and annual plan update; providing staff support to the 
State supervisory board and/or the State advisory group; and overseeing 
the reporting of State progress in achieving and maintaining compliance 
with the deinstitutionalization, separation, adult jail and lockup 
removal, and disproportionate minority confinement requirements.

Funding--Allocation to States

    Section 222(a) provides for a ``floating minimum'' for the 
allocation of formula grants to States and Territories that is tied to 
the total appropriation level for Title II in a given fiscal year. For 
Fiscal Year 1993, the total appropriation for Title II of the JJDP Act 
(other than Parts D and E) was less than $75 million. As a result, the 
``floating minimum'' formula grant allocation for any State was 
legislatively established at a minimum of $325,000 and a maximum of 
$400,000 for States, and $75,000 and $100,000 for Territories, with no 
State or Territory receiving less than its Fiscal Year 1992 allocation. 
The Congressionally stated purpose of this formula was to increase the 
funds available to the minimum allocation States and Territories. In 
order to ensure that this Congressional intent is maximized, the Fiscal 
Year 1993 formula grant allocations held the non-minimum States and 
Territories at their Fiscal Year 1992 funding levels, allocating the 
increased Fiscal Year 1993 formula grant funds to the minimum States 
and Territories on a prorata basis.
    For Fiscal Year 1994, the total appropriation for Title II (other 
than Part D) exceeds the $75 million threshold. Consequently, the 
``floating minimum'' formula grant allocation for any State in Fiscal 
Year 1994 is established at a minimum of $400,000 and a maximum of 
$600,000. OJJDP proposes to implement the amended language in Section 
222(a)(2)(B) to provide for a minimum allocation of $600,000, based on 
fund availability: ``* * * not less than $400,000, or such greater 
amount, up to $600,000, as is available to be allocated * * *'' All 
non-minimum States will also receive an increased formula grant 
allocation in Fiscal Year 1994.
    Proposed State formula grant allocations for Fiscal Years 1993 and 
1994 have been provided to all States and Territories. The precise 
procedure used by the budget staff of the Office of Justice Programs to 
calculate State formula grant allocations is available upon request.

Collocated Juvenile and Adult Facilities

    Section 223(a)(14) of the JJDP Act requires that juveniles be 
removed from adult jails and lockups. OJJDP policy No. 91-1401, July 
16, 1991, sought to clarify the existing OJJDP regulatory requirements 
for establishing the existence of a separate juvenile detention 
facility where such facility is located in the same building or on the 
same grounds as an adult jail or lockup.
    OJJDP's initial policy on collocated juvenile and adult facilities 
was established by an OJJDP ``Position Statement on Minimum 
Requirements of Section 223(a)(14) of the Juvenile Justice and 
Delinquency Prevention Act, as amended,'' which was published as a 
Notice in the Federal Register on January 17, 1984. Four criteria were 
established in that policy publication, each of which had to be met to 
ensure the requisite separateness of juvenile and adult facilities. The 
criteria were subsequently incorporated into the Formula Grants 
regulation the following year (See 50 FR 119, 25550-25561, June 20, 
1985). The July 16, 1991 OJJDP policy reiterated each of the four 
criteria, and sought to clarify a number of specific implementation 
mechanisms that would be acceptable to OJJDP while remaining within the 
parameters of each criterion.
    The clarifications in OJJDP Policy No. 91-1401 have been the 
subject of continued concern and controversy in the juvenile justice 
community. In addition, the 1992 Amendments substantially revise one of 
the four criteria (separate staff) for determining whether a separate 
juvenile detention facility exists. For these reasons, the 
Administrator deems it essential to provide interested parties with an 
opportunity to comment on each of the four collocated facility 
criteria.
    In formulating the four criteria initially, and in providing 
additional policy clarification, OJJDP recognized a need to distinguish 
an optimal system, where a juvenile detention center would never be 
collocated with an adult jail or lockup, from a system where States can 
use collocated facilities that meet the regulatory requirements for a 
separate facility by creating and maintaining an atmosphere that is 
appropriate and conducive to the care of alleged juvenile criminal-type 
offenders who require a secure detention environment. Given the limited 
level of funds available to States under the Formula Grants program, 
and the need to expend these funds to address a variety of priorities 
and needs identified in the JJDP Act and State plans, OJJDP has sought 
to provide States with sufficient flexibility to achieve and maintain 
compliance with JJDP Act mandates while, at the same time, addressing 
needed delinquency prevention and other system improvement initiatives.
    The proposed regulation clarifies the four criteria by providing 
that: (1) Total separation in spatial areas of juvenile and adult 
facilities can be achieved by providing for no common use areas or by 
time-phasing common use areas, provided that the arrangement precludes 
even haphazard or accidental contact between juvenile and adult 
residents and adult facility staff at all times and provided that time-
phasing of common use areas cannot extend to sleeping or living areas. 
Under either approach to total separation, written operational plans, 
policies and procedures must be in place to insure that the objective 
of total separation is achieved; (2) total separation in juvenile and 
adult program activities requires the formulation of an independent and 
comprehensive operational plan for the juvenile facility which provides 
a full range of separate program activities for juveniles. While 
program space, equipment and resources may be shared by both juvenile 
and adult facility populations subject to the requirements of total 
separation in spatial areas, the key feature of this policy is the 
express requirement that the juvenile population receive a full range 
of services in circumstances where collocation of facilities is 
approved; (3) separate juvenile and adult staff--management, security 
and direct care--is essential to the maintenance of an appropriate 
atmosphere for the care of juveniles in detention. The regulation 
distinguishes between staff who routinely have day-to-day direct care 
responsibility for juveniles and specialized service staff not normally 
in contact with detainees. For security and direct care staff 
(including management), the 1992 Amendments require that these 
functions be vested in totally separate staff. This requirement is 
designed to ensure that a facility's security and direct care staff are 
both well qualified to serve, and appropriately focused on, the needs 
of the juvenile population while providing juvenile facility services; 
(4) in States that have standards or licensing requirements for secure 
juvenile detention facilities, a collocated facility must meet the 
standards (on the same basis as separate facilities) and be licensed as 
appropriate. The proposed regulation establishes an express requirement 
that a responsible State authority must certify that State standards 
and licensing requirements have been met and that the architectural 
configuration and operational procedures and policies of the facility 
assure total separation between juvenile detention center and adult 
facility populations.
    OJJDP intends these clarifications to strengthen the four 
requirements for a separate facility and to establish reliable 
parameters for States completing final steps to achieve and maintain 
full compliance with the jail and lockup removal requirement. The 
regulatory language committing OJJDP to the ``rule of reason'' 
represents a further attempt to place the collocated facility criteria 
in perspective. Finally, States are reminded of their oversight 
responsibility to insure that the separate character of any collocated 
juvenile detention facility is fully maintained following its 
classification as a separate juvenile detention facility. The 1992 
Amendments require States to reassess the separate staff criterion in 
all collocated facilities, including those classified as such by the 
State and concurred with by OJJDP prior to the effective date of this 
proposed regulation.
    OJJDP's original policy on collocated facilities was designed to 
accommodate a small number of existing juvenile detention facilities. 
However, several States have used the policy and regulation to create a 
network of collocated juvenile detention facilities in rural areas as 
county or regional detention facilities in lieu of establishing 
dedicated county or regional juvenile detention facilities. 
Consequently, and because OJJDP does not believe either that building 
or establishing collocated facilities in urban areas can be justified 
or that States should rely upon collocated facilities as a primary or 
long-term strategy for achieving and maintaining compliance with the 
jail and lockup removal mandate in rural areas, OJJDP proposes to limit 
future approval of collocated facilities to those that are outside a 
Standard Metropolitan Statistical Area (SMSA), are operational or 
planned such that a determination of compliance with the criteria can 
be made, and have been determined by the State (with subsequent OJJDP 
concurrence) to meet each of the four criteria, by December 31, 1994.

Criteria for Compliance With DSO, Adult Jail and Lockup Removal, 
Separation, and Minority Overrepresentation

    The proposed regulation deletes the ``substantial compliance 
criteria'' from Sec. 31.303(c)(3) and (e)(4) of the regulation. 
Pursuant to the 1992 Amendments, all eligible States and territories 
are required to be in full compliance with the DSO and Jail and Lockup 
Removal requirements in order to be eligible for FY 1994 Formula Grant 
funds. Also, States must demonstrate compliance with the enhanced 
Separation and Disproportionate Minority Confinement mandates in order 
to be eligible for 1994 funds. Therefore, the regulatory provision 
recognizing ``progress'' toward compliance with the Separation mandate 
is being deleted. Also, enhanced criteria and specific timelines would 
be established for the Disproportionate Minority Confinement Mandate. 
OJJDP would use these criteria and timelines to determine if States 
have demonstrated compliance with the Minority Overrepresentation 
Mandate.

Deinstitutionalization of Status Offenders

    Revisions are proposed to the valid court order exception and 
monitoring report requirements related to the deinstituionalization of 
status offenders and nonoffenders requirement (DSO) [section 
223(a)(12)(A)]. These changes are designed to bring the DSO requirement 
in line with the section 223(a)(14) Jail and Lockup Removal 
requirement. Currently, the regulatory DSO exceptions for valid court 
order violations [28 CFR 31.303(f)(3)] and the 24-hour monitoring 
report exception for detention of status and nonoffender juveniles [28 
CFR 31.303(f)(5)] do not prohibit the use of adult jails and lockups 
for status offenders who violate a valid court order or for status or 
nonoffender juveniles held in secure custody pursuant to the 24-hour 
monitoring exception. This anomaly, which resulted from the separate 
years in which these requirements became law (1974 and 1980, 
respectively), is being addressed to reflect OJJDP's determination that 
there are no longer any circumstances in which the secure custody of 
noncriminal juveniles in adult jails and lockups can be justified or 
sanctioned. To the extent that inadvertent or isolated violations 
occur, or where violations result from emergency situations, the de 
minimis criteria for full compliance should continue to provide 
sufficient latitude to permit States to maintain full compliance with 
the DSO requirement. Monitoring information to reflect these changes 
must be included in the State Monitoring Report due by December 31, 
1995, and subsequent monitoring reports.

Waiver of Termination--Criteria and Number

    The criteria for a waiver of termination when a State has failed to 
achieve full compliance, or full compliance with de minimis exceptions 
with the jail and lockup removal requirement, were established by 
regulation in Sec. 31.303(f)(6) in 1989. Section 223(c)(3) of the JJDP 
Act provided that a State's failure to achieve compliance with the jail 
and lockup removal requirement ``* * * shall terminate any State's 
eligibility for funding unless the Administrator waives the termination 
of the State's eligibility on the condition that the State agrees to 
expend all of the funds to be received under this part by the State, 
[with specific exceptions] only to achieve compliance with subsection 
(a)(14).''
    OJJDP established seven regulatory criteria to be satisfied by a 
State requesting a waiver. OJJDP's premise, based on Congressional 
guidance, was that
    ``A State which satisfies these standards qualifies for a waiver on 
the basis that: (1) It has made significant progress to date; and (2) 
additional funding is likely to produce further progress toward 
compliance (54 FR 14769, April 12, 1989).
    The seven criteria, set forth at 28 CFR 31.303(f)(6)(iii)(D)(2), 
provide that a State requesting a waiver must demonstrate that it:
    (i) Agrees to expend all of its Formula Grant Award except planning 
and administration, advisory group set aside, and Indian tribe pass-
through funds, to achieve compliance with section 223(a)(14); and
    (ii) Removed all status and nonoffender juveniles from adult jails 
and lockups as set forth in paragraph (f)(6)(iii)(A)(2)(i) of this 
section; and
    (iii) Made meaningful progress in removing other juveniles from 
adult jails and lockups as set forth in paragraph (f)(6)(iii)(A)(2)(ii) 
of this section; and
    (iv) Diligently carried out the State's jail and lockup removal 
plan as set forth in paragraph (f)(6)(iii)(A)(2)(iii) of this section; 
and (v) Submitted an acceptable plan, based on an assessment of current 
jail and lockup removal barriers within the State, to eliminate 
noncompliant incidents; and
    (vi) Achieved compliance with section 223(a)(15) of the JJDP Act; 
and
    (vii) Demonstrated a commitment, through appropriate executive or 
legislative action, to achieving full compliance.
    The reference in (ii) above, is to regulatory provisions 
implementing the former ``substantial compliance'' standard, which 
reads as follows:
    (i) Removed all status and nonoffender juveniles from adult jails 
and lockups. Compliance with this standard requires that the last 
submitted monitoring report demonstrate that no status offender 
(including those accused of or adjudicated for violating a valid court 
order) or nonoffender juveniles were securely detained in adult jails 
or lockups for any length of time; or, that all status offenders and 
nonoffenders securely detained in adult jails and lockups for any 
length of time were held in violation of an enforceable state law and 
did not constitute a pattern or practice within the state.
    Currently, several States have not been awarded their FY 1992 and/
or FY 1993 funds because they cannot meet criterion (ii) for receiving 
a waiver. While the numbers of status and nonoffenders are typically 
small, these States either lack an enforceable State law which would 
prohibit any violations or the State has been unable to demonstrate 
that the violations do not constitute a pattern or practice within the 
State. OJJDP does not believe that the practice of detaining status or 
nonoffender juveniles in adult jails or lockups is acceptable or that 
States should in any way sanction or permit such a practice. However, 
OJJDP also has to weigh the detriment that will occur if States which 
are close to achieving full compliance are deprived of a significant 
means of obtaining that important goal through the application of 
criteria that are inflexible.
    Consequently, OJJDP proposes to modify criterion (ii) to provide 
that States can meet the standard by demonstrating that the number of 
status offenders (including valid court order violators) and 
nonoffenders securely detained in adult jails and lockups is less than 
the numerical de minimis rate of 9 per 100,000 juvenile population in 
the State. This provision is balanced by the addition in criterion 
(vii) of a requirement that the State demonstrate an unequivocal 
commitment, through appropriate executive or legislative action, to 
achieving full compliance, and the proposed change in the monitoring 
exception for DSO to prohibit placing a status or nonoffender juvenile 
in an adult jail or lockup for any length of time. The proposed 
revisions should provide these few remaining States with a reasonable 
opportunity to achieve full compliance without a loss of Formula Grant 
Program funds while, at the same time, reiterating the Congressional 
mandate that adult jails and lockups are inappropriate places in which 
to securely detain children who have committed no criminal law 
violation.
    Finally, OJJDP proposes to increase the maximum number of waivers 
of termination from three to four. There are several States that may 
need to receive a fourth waiver in order to be eligible for a Fiscal 
Year 1992 or 1993 Formula Grant Award.

Executive Order 12866

    This notice is not a ``significant regulatory action'' for purposes 
of Executive Order 12886 because it does not result in: (1) an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or state, 
local or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; and (4) does not raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities or the principles of Executive Order No. 12866.

Regulatory Flexibility Act

    This proposed regulation, if promulgated, will not have a 
``significant'' economic impact on a substantial number of small 
``entities,'' as defined by the Regulatory Flexibility Act (Pub.L. 96-
354).

Paperwork Reduction Act

    No collection of information requirements are contained in or 
effected by this regulation (See the Paperwork Reduction Act, 44 U.S.C. 
3504(H)).

Intergovernmental Review of Federal Programs

    In accordance with Executive Order 12372 and the Department of 
Justice's implementing regulation 28 CFR Part 30, States must submit 
Formula Grant Program applications to the State ``Single Point of 
Contact,'' if one exists. The State may take up to 60 days from the 
application date to comment on the application.

Lists of Subjects in 28 CFR Part 31

    Grant programs--law, juvenile delinquency, grant programs. For the 
reasons set forth in the preamble, it is proposed to amend the OJJDP 
Formula Grants Regulation, 28 CFR Part 31, as follows:

PART 31--[AMENDED]

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

    Authority: Juvenile Justice and Delinquency Prevention Act of 
1974, as amended (42 U.S.C. 5601 et seq.).

    2. Section 31.3 is revised to read as follows:


Sec. 31.3  General.

    Formula Grant Applications for each fiscal year should be submitted 
to OJJDP by August 1 (60 days prior to the beginning of the fiscal 
year) or within 60 days after the States are officially notified of the 
fiscal year formula grant allocations. Beginning with Fiscal Year 1995 
and each subsequent fiscal year, all Formula Grant Applications must be 
submitted no later than March 31 of the fiscal year for which the funds 
are allocated.
    3. Section 31.101 is revised to read as follows:


Sec. 31.101  Designation of State agency.

    The Chief Executive of each State which chooses to apply for a 
formula grant shall establish or designate a State agency as the sole 
agency for supervising the preparation and administration of the plan. 
The plan must demonstrate compliance with administrative and 
supervisory board membership requirements established by the OJJDP 
Administrator pursuant to section 299(c) of the JJDP Act. States must 
have available for review a copy of the State law or executive order 
establishing the State agency and its authority.
    4. Section 31.102(c) is amended by adding the following sentence at 
the end thereof:


Sec. 31.102  State agency structure.

    (c) * * * At a minimum, one full-time Juvenile Justice Specialist 
must be assigned to the Formula Grants Program by the State agency. 
Where the State does not currently provide or maintain a full-time 
Juvenile Justice Specialist, the plan must clearly establish and 
document that the program and administrative support staff resources 
currently assigned to the program will temporarily meet the adequate 
staff requirement, and provide an assurance that at least one full-time 
Juvenile Justice Specialist will be assigned to the Formula Grants 
Program by the end of Fiscal Year 1995 (September 30, 1995).
    5. Section 31.203 is revised to read as follows:


Sec. 31.203  Open meetings and public access to records.

    The State must assure that the State agency, its supervisory board 
established pursuant to section 299(c) and the State advisory group 
established pursuant to section 223(a)(3) will follow applicable State 
open meeting and public access laws and regulations in the conduct of 
meetings and the maintenance of records relating to their functions.
    6. Section 31.301 (a), (c), (d), and (e) is revised to read as 
follows:


Sec. 31.301  Funding.

    (a) Allocation to states. Funds shall be allocated annually among 
the States on the basis of relative population of persons under age 18. 
If the amount allocated for title II (other than Parts D and E) of the 
JJDP Act is less than $75 million, the amount allocated to each State 
will not be less than $325,000, nor more than $400,000, provided that 
no State receives less than its allocation for Fiscal Year 1992. The 
Territories will receive not less than $75,000 or more than $100,000. 
If the amount appropriated for title II (other than Part D) is $75 
million or more, the amount allocated for each State will be not less 
than $400,000, nor more than $600,000, provided that Parts D and E have 
been funded in the full amounts authorized. For the Territories, the 
amount remains at $100,000.
* * * * *
    (c) Match. Formula Grants under the JJDP Act shall be 100% of 
approved costs, with the exception of planning and administration 
funds, which require a 100% cash match (dollar for dollar), and 
construction projects funded under section 299C (a)(2) of the JJDP Act 
which also require a 100% cash match.
    (d) Funds for administration. Not more than 10% of the total annual 
Formula Grant award may be utilized to develop the annual juvenile 
justice plan and pay for administrative expenses, including project 
monitoring. These funds are to be matched on a dollar for dollar basis. 
The State shall make available needed funds for planning and 
administration to units of local government on an equitable basis. Each 
annual application must identify uses of such funds.
    (e) Nonparticipating States. Pursuant to section 223(d), the OJJDP 
Administrator shall endeavor to make the fund allotment under section 
222(a), of a State which chooses not to participate or loses its 
eligibility to participate in the formula grant program, directly 
available to local public and private nonprofit agencies within the 
nonparticipating State. The funds may be used only for the purpose(s) 
of achieving deinstitutionalization of status offenders and 
nonoffenders, separation of juveniles from incarcerated adults, removal 
of juveniles from adult jails and lockups, and/or reducing the 
disproportionate confinement of minority youth in secure facilities. 
Absent a request for extension which demonstrates compelling 
circumstances justifying the reallocation of formula grant funds back 
to the State to which the funds were initially allocated, or the 
pendency of administrative hearing proceedings under section 223(d), 
formula grant funds allocated to a State which has failed to submit an 
application, plan, or monitoring data establishing its eligibility for 
the funds will, beginning with Fiscal Year 1994, be reallocated to the 
nonparticipating State program on September 30 of the fiscal year for 
which the funds were appropriated. Reallocated funds will be awarded to 
eligible recipients pursuant to program announcements published in the 
Federal Register.
    7. Section 31.302 (a) and (b)(2) is amended to read as follows:


Sec. 31.302  Applicant State agency.

    (a) Pursuant to section 223(a)(1), section 223(a)(2) and section 
299(c) of the JJDP Act, the State must assure that the State agency 
approved under section 299(c) has been designated as the sole agency 
for supervising the preparation and administration of the plan and has 
the authority to implement the plan.
    (b) * * *
    (2) Should consider in meeting the statutory membership 
requirements and responsibilities of section 223(a)(3) (A)-(E), 
appointing at least one member who represents each of the following: a 
locally elected official representing general purpose local government; 
a law enforcement officer; a juvenile or family court judge; a 
probation officer; a juvenile corrections official; a prosecutor; a 
representative from an organization, such as a parents group, concerned 
with teenage drug and alcohol abuse; a high school principal; a 
recreation director; a volunteer who works with delinquent or at risk 
youth; a person with a special focus on the family; a youth worker 
experienced with programs that offer alternatives to incarceration; 
persons with special competence in addressing programs of school 
violence and vandalism and alternatives to expulsion and suspension; 
and, persons with special knowledge concerning learning disabilities, 
child abuse, neglect and youth violence.
    8. Section 31.303 (a) and (b) is revised to read as follows:


Sec. 31.303  Assurances.

    (a) Assurances. The State must certify through the provision of 
assurances that it has complied and will comply (as appropriate) with 
section 223(a) (1), (2), (3), (4), (5), (6), (7), (8)(c), (9), (10), 
(11), (16), (17), (18), (19), (20), (21), (22), and (25), and sections 
229 and 261(d), in formulating and implementing the State plan. The 
Formula Grant Application kit provides a form and guidance for the 
provision of assurances. OJJDP interprets the 223(a)(16) assurance as 
satisfied by an affirmation that State law and/or policy clearly 
require equitable treatment on the required bases; or by providing in 
the State plan that the State agency will require an assurance of 
equitable treatment by all Formula Grant subgrant and contract 
recipients, and establish as a program goal, in conjunction with the 
State Advisory Group, the adoption and implementation of a statewide 
juvenile justice policy that all youth in the juvenile justice system 
will be treated equitably without regard to gender, race, family 
income, and mentally, emotionally, or physically handicapping 
conditions. OJJDP interprets the 223(a)(25) assurance as satisfied by a 
provision in the State plan for the State agency and the State Advisory 
Group to promulgate policies and budget priorities that require the 
funding of programs that are part of a comprehensive and coordinated 
community system of services as set forth in section 103(19) of the 
JJDP Act. This requirement is applicable when a State's formula grant 
for any fiscal year exceeds 105 percent of the State's formula grant 
for Fiscal Year 1992.
    (b) Serious juvenile offender emphasis. Pursuant to sections 
101(a)(10) and 223(a)(10) of the JJDP Act, the Office encourages States 
that have identified serious and violent juvenile offenders as a 
priority problem to allocate formula grant funds to programs designed 
for serious and violent juvenile offenders at a level consistent with 
the extent of the problem as identified through the State planning 
process. Particular attention should be given to improving prosecution, 
sentencing procedures, providing resources necessary for informed 
dispositions, providing for effective rehabilitation, and facilitating 
the coordination of services between the juvenile justice and criminal 
justice systems.
* * * * *
    9. Section 31.301 is amended by revising paragraph (c)(3) to read 
as follows:


Sec. 31.301  Federal Wards.

    (c) * * *
    (3) Apply this requirement to alien juveniles under Federal 
jurisdiction who are held in State or local facilities.
* * * * *
    10. Section 31.303 is amended by revising paragraph (c)(4) to read 
as follows:


Sec. 31.303  DSO Compliance.

    (c) * * *
    (4) Those States which, based upon the most recently submitted 
monitoring report, have been found to be in full compliance with 
section 223(a)(12)(A) may, in lieu of addressing paragraphs (c) (1) and 
(2) of this section, provide an assurance that adequate plans and 
resources are available to maintain full compliance.
* * * * *
    11. Section 31.303 is amended by revising paragraphs (d)(1) (i) and 
(ii) to read as follows:

Section Sec. 31.303  Separation

    (d) * * *
    (1) * * *
    (i) Describe its plan and procedure, covering the three-year 
planning cycle, for assuring that the requirements of this section are 
met. The term ``contact'' is defined to include any sight and sound 
contact between juveniles in a secure custody status and incarcerated 
adults, including inmate trustees. Sound contact is further defined to 
mean that no conversation is possible. Separation must be accomplished 
in all secure areas of the facility which include, but are not limited 
to: sallyports within the secure perimeter of the facility, other entry 
areas, all passageways (hallways), admissions, sleeping, toilet and 
shower, dining, recreational, educational, vocational, health care, and 
other areas as appropriate.
    (ii) In those instances where accused juvenile criminal-type 
offenders are authorized to be temporarily detained in facilities where 
adults are confined, the State must set forth the procedures for 
assuring no sight or sound contact between such juveniles and confined 
adults.
* * * * *
    12. Paragraph (d)(2) of Sec. 31.303 is amended by adding a period 
``.'' after the word ``State'' and removing the remainder of paragraph 
(d)(2).
    13. Paragraph (e)(3) in Sec. 31.303 is revised to read as follows:


Sec. 31.303  Collocated Facilities.

    (e) * * *
    (3)(i) Determine whether or not a facility in which juveniles are 
detained or confined is an adult jail or lockup. In circumstances where 
juveniles are detained or confined in a separate building within a 
justice center or building complex which includes both juvenile and 
adult facilities (same grounds) or in a separate juvenile area (floor, 
wing, or side) of a building which includes an adult jail or lockup 
(same building), the separate building or area in which juveniles are 
detained or confined may qualify as a juvenile detention facility. 
However, except when a collocated building or area within a building 
has previously been determined by the State (with OJJDP concurrence) to 
qualify as a separate juvenile detention facility under the four 
established requirements prior to the effective date of this proposed 
regulation, State determinations and OJJDP concurrence on collocated 
facilities will be limited to those which are located in geographic 
areas outside a Standard Metropolitan Statistical Area, and are 
operational or planned such that a determination of compliance with the 
criteria can be made, and are determined by the State (with subsequent 
OJJDP concurrence) to meet the criteria and procedure established in 
paragraph (e)(3)(i) (A) through (D) and (ii) of this section, no later 
than December 31, 1994. Each of the following four criteria must be met 
in order to ensure the requisite separateness of the two facilities. 
The requirements are:
    (A) Total separation between juvenile and adult facility spatial 
areas such that there could be no contact between juveniles and adult 
residents in the respective facilities. Total separation in spatial 
areas of juvenile and adult facilities can be achieved by providing for 
no common use areas, or by time-phasing common use areas, provided that 
the arrangement precludes contact between juveniles and adult residents 
and adult facility staff at all times. Sleeping or other living areas 
may not be considered common use areas.
    (B) Total separation in all juvenile and adult program activities 
within the facilities, including recreation, education, counseling, 
health care, dining, sleeping, and general living activities. There 
must be an independent and comprehensive operational plan for the 
juvenile detention facility which provides for a full range of separate 
program activities. No program activities may be shared by juvenile and 
adult residents. However, program space, equipment, and other resources 
may be used by both facility populations subject to the criterion in 
paragraph (e)(3)(i)(A) of this section.
    (C) Separate juvenile and adult staff, including management, 
security staff, and direct care staff such as recreation, education, 
and counseling. Specialized services staff, such as cooks, bookkeepers 
and medical professionals who are not normally in contact with 
detainees or whose infrequent contacts occur under conditions of 
separation of juveniles and adults, can serve both. The day to day 
management, security and direct care functions of the juvenile 
detention facility and its programs must be vested in totally separate 
staff. Collocated facilities classified by the State with subsequent 
OJJDP concurrence prior to the effective date of this proposed 
regulation must also meet this requirement.
    (D) In States that have established State standards or licensing 
requirements for secure juvenile detention facilities, the juvenile 
facility meets the standards (on the same basis as free-standing 
juvenile detention facilities) and is licensed as appropriate. 
Responsible State authorities must certify that all State standards or 
licensing requirements for a secure juvenile detention facility have 
been met, and that the architectural and operational configuration of 
the juvenile facility assures total separation.
    (ii) The State must initially determine that the four requirements 
are fully met. Upon such determination, the State must submit to OJJDP 
a request to concur with the State finding that a separate juvenile 
facility exists. To enable OJJDP to assess the separateness of the two 
facilities, sufficient documentation must accompany the request to 
demonstrate that each requirement is met. In assessing the separateness 
of the two facilities pursuant to a State's request for OJJDP 
concurrence, OJJDP will be guided by the ``rule of reason.'' If a 
facility is, in fact, a separate and distinct living environment for 
juveniles in secure custody, and not simply a juvenile wing, section, 
or area of an adult jail or lockup, a reasoned and reasonable 
application of the criteria will result in OJJDP's concurrence that a 
separate juvenile detention facility exists. It is incumbent upon each 
State to make the initial determination through an on-site facility (or 
full plan) review and, through the exercise of its oversight 
responsibility, to insure that the separate character of the facility 
is maintained by continuing to fully meet each of the four criteria in 
the operation of the juvenile detention facility.
* * * * *
    14. Paragraph (e)(4) in Sec. 31.303 is removed and paragraph (e)(5) 
is redesignated as paragraph (e)(4) and revised to read as follows:


Sec. 31.303  Jail Removal Compliance.

    (e) * * *
    (4) Those States which, based upon the most recently submitted 
monitoring report, have been found to be in full compliance with 
section 223(a)(14) may, in lieu of addressing paragraphs (e) (1) and 
(2) of this section, provide an assurance that adequate plans and 
resources are available to maintain full compliance.
    15. In Sec. 31.303, Paragraph (f)(1) introductory text is revised 
to read as follows:


Sec. 31.303  Compliance Monitoring.

    (f) * * *
    (1) Pursuant to section 223(a)(15) of the JJDP Act, the State 
shall:
* * * * *
    16. Paragraph (f)(3)(i) in Sec. 31.303 is amended by adding the 
following to the end of the paragraph:


Sec. 31.303  Valid Court Order.

    (f) * * *
    (3) * * *
    (i) * * * Prior to issuance of the order, the juvenile must have 
received the full due process rights guaranteed by the Constitution of 
the United States.
* * * * *
    17. Paragraph (f)(3)(iv) in Sec. 31.303 is amended by revising the 
last sentence thereof to read as follows:


Sec. 31.303  Valid Court Order.

    (f) * * *
    (3) * * *
    (iv) * * * A juvenile alleged or found in a violation hearing to 
have violated a valid court order may be held only in a secure juvenile 
detention or correctional facility, and not in an adult jail or lockup.
* * * * *
    18. Paragraph (f)(3)(vi) in Sec. 31.303 is amended by adding the 
following to the end of the paragraph:


Sec. 31.303  Valid Court Order.

    (f) * * *
    (3) * * *
    (vi) * * * This determination must be informed by a written report, 
to the judge, that: reviews the behavior of the juvenile and the 
circumstances under which the juvenile was brought before the court and 
made subject to such order; determines the reasons for the juvenile's 
behavior; and determines whether all dispositions other than secure 
confinement have been exhausted or are clearly inappropriate. This 
report must be prepared and submitted by a public agency or 
organization other than a court or law enforcement agency. A 
multidisciplinary review team that operates independently of courts or 
law enforcement agencies would satisfy this requirement even if some 
individual members of the team represented court or law enforcement 
agencies.
* * * * *
    19. Paragraph (f)(4)(vi) in Sec. 31.303 is revised to read as 
follows:


Sec. 31.303  Rural Area.

    (f) * * *
    (4) * * *
    (vi) Pursuant to section 223(a)(14) of the JJDP Act, the non-MSA 
(low population density) exception to the jail and lockup removal 
requirement as described in paragraphs (f)(4) (i) through (v) of this 
section shall remain in effect through 1997, and shall allow for secure 
custody beyond the 24 hour period described in paragraph (f)(4)(i) of 
this section when the facility is located where conditions of distance 
to be traveled or the lack of highway, road, or other ground 
transportation do not allow for court appearances within 24 hours, so 
that a brief (not to exceed an additional 48 hours) delay is excusable; 
or the facility is located where conditions of safety exist (such as 
severely adverse, life-threatening weather conditions that do not allow 
for reasonably safe travel), in which case the time for an appearance 
may be delayed until 24 hours after the time that such conditions allow 
for reasonably safe travel. States may use these additional statutory 
allowances only where the precedent requirements set forth in 
paragraphs (f)(4) (i) through (v) of this section have been complied 
with. This may necessitate statutory or judicial (court rule or 
opinion) relief within the State from the 24 hour initial court 
appearance standard required by paragraph (f)(4)(i) of this section. 
States must document and describe in their annual monitoring report to 
OJJDP, the specific circumstances surrounding each individual use of 
the distance/ground transportation, and weather allowances.
* * * * *
    20. Paragraph (f)(5) in Sec. 31.303 is revised to read as follows:


Sec. 31.303  Monitoring Report.

    (f) * * *
    (5) Reporting Requirement. The State shall report annually to the 
Administrator of OJJDP on the results of monitoring for section 223(a) 
(12), (13), and (14) of the JJDP Act. The reporting period should 
provide 12 months of data, but shall not be less than six months. The 
report shall be submitted to the Administrator of OJJDP by December 31 
of each year.
    (i) To demonstrate compliance with section 223(a)(12)(A) of the 
JJDP Act, the report must include, at a minimum, the following 
information for the current reporting period:
    (A) Dates covered by the current reporting period.
    (B) Total number of public and private secure detention and 
correctional facilities, the total number reporting, and the number 
inspected on-site.
    (C) The total number of accused status offenders and nonoffenders, 
including out-of-state runaways and Federal wards, held in any secure 
detention or correctional facility for longer than 24 hours (not 
including weekends or holidays), excluding those held pursuant to the 
valid court order provision as set forth in paragraph (f)(3) of this 
section.
    (D) The total number of accused status offenders and nonoffenders, 
including out-of-state runaways and Federal wards, held in any secure 
detention or correctional facility for less than 24 hours for purposes 
other than identification, investigation, release to parent(s), or 
transfer to a nonsecure facility.
    (E) The total number of accused status offenders (including valid 
court order violations) and nonoffenders securely detained in any adult 
jail, lockup, or nonapproved collocated facility for less than 24 
hours.
    (F) The total number of adjudicated status offenders and 
nonoffenders, including out-of-state runaways and Federal wards, held 
for any length of time in a secure detention or correctional facility, 
excluding those held pursuant to the valid court order provision.
    (G) The total number of status offenders held in any secure 
detention or correctional facility pursuant to the valid court order 
provision set forth in paragraph (f)(3) of this section.
    (ii) To demonstrate the extent to which the provisions of section 
223(a)(12)(B) of the JJDP Act are being met, the report must include 
the total number of accused and adjudicated status offenders and 
nonoffenders placed in facilities that are:
    (A) Not near their home community;
    (B) Not the least restrictive appropriate alternative; and
    (C) Not community-based.
    (iii) To demonstrate the extent of compliance with section 
223(a)(13) of the JJDP Act, the report must include, at a minimum, the 
following information for the current reporting period:
    (A) Dates covered by the current reporting period.
    (B) The total number of facilities used to detain or confine both 
juvenile offenders and adult criminal offenders during the past 12 
months AND the number inspected on-site.
    (C) The total number of facilities used for secure detention and 
confinement of both juvenile offenders and adult criminal offenders 
which did not provide sight and sound separation.
    (D) The total number of juvenile offenders and nonoffenders NOT 
separated in facilities used for the secure detention and confinement 
of both juveniles and adults.
    (E) The total number of juvenile detention centers located within 
the same building or on the same grounds as an adult jail or lockup 
that have been concurred with by OJJDP, including a list of such 
facilities.
    (F) The total number of juveniles detained in collocated facilities 
concurred with by OJJDP, that were not separated from the security or 
direct care staff of the adult portion of the facility.
    (G) The total number of juvenile detention centers located within 
the same building or on the same grounds as an adult jail or lockup 
that have not been concurred with by OJJDP, including a list of such 
facilities.
    (H) The total number of juveniles detained in collocated facilities 
not approved by the State and concurred with by OJJDP, that were not 
sight and sound separated from adult criminal offenders.
    (iv) To demonstrate the extent of compliance with section 
223(a)(14) of the JJDP Act, the report must include, at a minimum, 
include the following information for the current reporting period:
    (A) Dates covered by the current reporting period.
    (B) The total number of adult jails in the State AND the number 
inspected on-site.
    (C) The total number of adult lockups in the State AND the number 
inspected on-site.
    (D) The total number of adult jails holding juveniles during the 
past twelve months.
    (E) The total number of adult lockups holding juveniles during the 
past twelve months.
    (F) The total number of accused juvenile criminal-type offenders 
held securely in adult jails, lockups, and collocated facilities not 
concurred with by OJJDP, in excess of six hours.
    (G) The total number of accused juvenile criminal-type offenders 
held securely in adult jails, lockups, and collocated facilities not 
concurred with by OJJDP, for less than six hours for purposes other 
than identification, investigation, processing, release to parent(s), 
or transfer to a juvenile facility.
    (H) The total number of adjudicated juvenile criminal-type 
offenders held securely in adult jails, lockups and collocated 
facilities not concurred with by OJJDP, for any length of time.
    (I) The total number of accused and adjudicated status offenders 
(including valid court order violators) and nonoffenders held securely 
in adult jails, lockups and collocated facilities not approved by the 
State and concurred with by OJJDP, for any length of time.
    (J) The total number of adult jails, lockups and collocated 
facilities not concurred with by OJJDP, in areas meeting the ``removal 
exception'' as noted in paragraph (f)(4) of this section, including a 
list of such facilities and the county or jurisdiction in which each is 
located.
    (K) The total number of juveniles accused of a criminal-type 
offense who were held in excess of six hours but less than 24 hours in 
adult jails, lockups and collocated facilities not approved by the 
State and concurred with by OJJDP, in areas meeting the ``removal 
exception'' as noted in paragraph (f)(4) of this section.
    (L) The total number of juveniles accused of a criminal-type 
offense who were held in excess of 24 hours in adult jails, lockups and 
collocated facilities not approved by the State and concurred with by 
OJJDP, in areas meeting the ``removal exception'' as noted in paragraph 
(f)(4) of this section, due to conditions of distance or lack of ground 
transportation.
    (M) The total number of juveniles accused of a criminal-type 
offense who were held in excess of 24 hours in adult jails, lockups and 
collocated facilities not concurred with by OJJDP, in areas meeting the 
``removal exception'' as noted in paragraph (f)(4) of this section, due 
to adverse weather conditions.
* * * * *
    21. Paragraph (f)(6) introductory text in Sec. 31.303 is revised to 
read as follows:


Sec. 31.303  Funding Eligibility.

    (f) * * *
    (6) Compliance. The State must demonstrate the extent to which the 
requirements of section 223(a) (12)(A), (13), (14), and (23) of the Act 
are met. If the State fails to demonstrate full compliance with section 
223(a) (12)(A) and (14), and compliance with (13) and (23) by the end 
of the fiscal year for any fiscal year beginning with 1994, the State's 
allotment under section 222 will be reduced by 25% for each such 
failure, provided that the State will lose its eligibility for any 
allotment unless: the State agrees to expend all remaining funds 
(except planning and administration, State advisory group set-aside 
funds and Indian tribe pass-through funds) for the purpose of achieving 
compliance with the mandate(s) for which the State is in noncompliance; 
or the Administrator makes a discretionary determination that the State 
has substantially complied with the mandate(s) for which there is 
noncompliance and that the State has made an unequivocal commitment to 
achieving full compliance within a reasonable time. Where a State's 
allocation is reduced, the amount available for planning and 
administration and the required pass-through allocation, other than 
State advisory group set-aside, will be reduced because they are based 
on the reduced allocation.
* * * * *
    22. Paragraph (f)(6)(i) in Sec. 31.303 is revised to read as 
follows:


Sec. 31.303  DSO Substantial Compliance.

    (f) * * *
    (6) * * *
    (i) Substantial compliance with section 223(a)(12)(A) can be used 
to demonstrate eligibility for FY 1993 and prior year formula grant 
allocations if, within three years of initial plan submission, the 
State has achieved a 75% reduction in the aggregate number of status 
offenders and nonoffenders held in secure detention or correctional 
facilities, or removal of 100% of such juveniles from secure 
correctional facilities only. In addition, the State must make an 
unequivocal commitment, through appropriate executive or legislative 
action, to achieving full compliance by Fiscal Year 1994. Full 
compliance is achieved when a State has removed 100% of such juveniles 
from secure detention and correctional facilities or can demonstrate 
full compliance with de minimis exceptions pursuant to the policy 
criteria contained in the Federal Register of January 9, 1981 (46 FR 
2566-2569).
* * * * *
    23. Paragraph (f)(6)(iii)(A) in Sec. 31.303 is removed and 
paragraphs (f)(6)(iii) (B), (C), (D), and (E), thereof are redesignated 
as paragraphs (f)(6)(iii) (A), (B), (C), and (D), respectively.
    24. Newly designated paragraph (f)(6)(iii)(C) in Sec. 31.303 is 
revised to read as follows:


Sec. 31.303  Jail Removal Waiver.

    (f) * * *
    (6) * * *
    (iii) * * *
    (C) Waiver. Failure to achieve full compliance as defined in this 
section shall terminate any State's eligibility for FY 1993 and prior 
year formula grant funds unless the Administrator of OJJDP waives 
termination of the State's eligibility. In order to be eligible for 
this waiver of termination, a State must request a waiver and 
demonstrate that it meets the standards set forth in paragraph 
(f)(6)(iii)(C) (1) through (7) of this section:
    (1) Agrees to expend all of its Formula Grant award except planning 
and administration, advisory group set-aside, and Indian tribe pass-
through funds, to achieve compliance with section 223(a)(14); and
    (2) Removed all status and nonoffender juveniles from adult jails 
and lockups. Compliance with this standard requires that the last 
submitted monitoring report demonstrate that no status offender 
(including those accused of or adjudicated for violating a valid court 
order) or nonoffender juveniles were securely detained in adult jails 
or lockups for any length of time; or, that all status offenders and 
nonoffenders securely detained in adult jails and lockups for any 
length of time were held in violation of an enforceable State law and 
did not constitute a pattern or practice within the State; or, the 
number of status offenders and nonoffenders securely detained in adult 
jails and lockups is less than 9 per 100,000 juvenile population in the 
State; and
    (3) Made meaningful progress in removing juvenile criminal-type 
offenders from adult jails and lockups. Compliance with this standard 
requires the State to document a significant reduction in the number of 
jurisdictions securely detaining juvenile criminal-type offenders in 
violation of section 223(a)(14) of the JJDP Act; or, a significant 
reduction in the number of facilities securely detaining such 
juveniles; or, a significant reduction in the average length of time 
each juvenile criminal-type offender is securely detained in an adult 
jail or lockup; or, that State legislation has recently been enacted 
and taken effect and which the State demonstrates will significantly 
impact the secure detention of juvenile criminal-type offenders in 
adult jails and lockups; and
    (4) Diligently carried out the State's jail and lockup removal plan 
approved by OJJDP. Compliance with this standard requires that actions 
have been undertaken to achieve the State's jail and lockup removal 
goals and objectives within approved timelines, and that the State 
advisory group, required by section 223(a)(3) of the JJDP Act, has 
maintained an appropriate involvement in developing and/or implementing 
the State's plan; and
    (5) Submitted an acceptable plan, based on an assessment of current 
jail and lockup removal barriers within the State, to eliminate 
noncompliant incidents; and
    (6) Achieved compliance with section 223(a)(15) of the JJDP Act; 
and
    (7) Demonstrates an unequivocal commitment, through appropriate 
executive or legislative action, to achieving full compliance.
* * * * *
    25. Newly designated paragraph (f)(6)(iii)(D) in Sec. 31.301 is 
revised to read as follows:


Sec. 31.303  Jail Removal Waiver.

    (f) * * *
    (6) * * *
    (iii) * * *
    (D) Waiver Maximum. A State may receive a waiver of termination of 
eligibility from the Administrator under paragraph (f)(6)(iii)(C) of 
this section for a combined maximum of four Formula Grant awards 
through Fiscal Year 1993. No additional waivers will be granted.
* * * * *
    26. Paragraph (f)(7) in Sec. 31.303 is revised to read as follows:


Sec. 31.303  Monitoring Report Exemption.

    (f) * * *
    (7) Monitoring Report Exemptions. States which have been determined 
by the OJJDP Administrator to have achieved full compliance with 
sections 223(a)(12)(A) and 223(a)(14), and compliance with section 
223(a)(13) of the JJDP Act and wish to be exempted from the annual 
monitoring report requirements must submit a written request to the 
OJJDP Administrator which demonstrates that:
    (i) The State provides for an adequate system of monitoring jails, 
law enforcement lockups, detention facilities, correctional facilities, 
and nonsecure facilities to enable an annual determination of State 
compliance with sections 223(a) (12)(A), (13), and (14) of the JJDP 
Act;
    (ii) State legislation has been enacted which conforms to the 
requirements of sections 223(a) (12)(A), (13), and (14) of the JJDP 
Act; and
    (iii) The enforcement of the legislation is statutorily or 
administratively prescribed, specifically providing that:
    (A) Authority for enforcement of the statute is assigned;
    (B) Time frames for monitoring compliance with the statute are 
specified; and
    (C) Adequate procedures are set forth for enforcement of the 
statute and the imposition of sanctions for violations.
* * * * *
    27. Paragraph (g) introductory text in Sec. 31.303 is revised to 
read as follows:


Sec. 31.303  Crime Analysis.

    (g) Juvenile Crime Analysis. Pursuant to section 223(a)(8), the 
State must conduct an analysis of juvenile crime problems, including 
juvenile gangs that commit crimes, and juvenile justice and delinquency 
prevention needs within the State, including those geographical areas 
in which an Indian tribe performs law enforcement functions. The 
analysis and needs assessment must include educational needs, gender 
specific services, delinquency prevention and treatment services in 
rural areas, and mental health services available to juveniles in the 
juvenile justice system. The analysis should discuss barriers to 
accessing services and provide a plan to provide such services where 
needed.
* * * * *
    28. Paragraph (h) in Sec. 31.303 is amended by adding the following 
sentence at the end thereof:


Sec. 31.303  Performance Report.

    (h) * * * The annual performance report must be submitted to OJJDP 
no later than June 30 and address all formula grant activities carried 
out during the previous complete calendar year, federal fiscal year, or 
State fiscal year for which information is available, regardless of 
which year's formula grant funds were used to support the activities 
being reported on, e.g., during a reporting period, activities may have 
been funded from two or more formula grant awards.
* * * * *
    29. Paragraph (j) in Sec. 31.303 is revised to read as follows:


Sec. 31.303  Disproportionate Minority Confinement.

    (j) Minority Detention and Confinement. Pursuant to section 
223(a)(23) of the JJDP Act, States must demonstrate specific efforts to 
reduce the proportion of juveniles detained or confined in secure 
detention facilities, secure correctional facilities, jails and lockups 
who are members of minority groups if such proportion exceeds the 
proportion such groups represent in the general population, viz., in 
most States, youth between 10-17 are subject to secure custody. It is 
essential that States approach this statutory mandate in a 
comprehensive manner. Compliance with this provision is achieved when a 
State meets the requirements set forth in paragraphs (1) through (3) of 
this section:
    (1) Identification. Provide quantifiable documentation (State, 
county and local level) in the State's FY 1994 Formula Grant Plan (and 
all subsequent Multi-Year Plans) Juvenile Crime Analysis and Needs 
Assessment to determine whether minority juveniles are 
disproportionately detained or confined in secure detention and 
correctional facilities, jails and lockups in relation to their 
proportion of the State juvenile population. Guidelines are provided in 
the OJJDP Disproportionate Minority Confinement Technical Assistance 
Manual (see Phase I Matrix). Where quantifiable documentation is not 
available to determine if disproportionate minority confinement exists 
in secure detention and correctional facilities, jails and lockups, the 
State must provide a time-limited plan of action, not to exceed six 
months, for developing and implementing a system for the ongoing 
collection, analysis and dissemination of information regarding 
minorities for those facilities where documentation does not exist.
    (2) Assessment. Each State's FY 1994 Formula Grant Plan must 
provide a completed assessment of disproportionate minority 
confinement. Assessments must, at minimum, identify and explain 
differences in arrest, diversion and adjudication rates, court 
dispositions other than incarceration, the rates and periods of 
prehearing detention in and dispositional commitments to secure 
facilities of minority youth and non-minority youth in the juvenile 
justice system, and transfers to adult court (see Phase II Matrix). If 
a completed assessment is not available, the State must submit a time-
limited plan (not to exceed 12 months from submission of the Formula 
Grant Application) for completing the assessment.
    (3) Intervention. Each State's FY 1995 Formula Grant Plan must, 
where disproportionate confinement has been demonstrated, provide a 
time-limited plan of action for reducing the disproportionate 
confinement of minority juveniles in secure facilities. The 
intervention plan shall be based on the results of the assessment, and 
must include, but not be limited to the following:
    (i) Diversion. Increasing the availability and improving the 
quality of diversion programs for minorities who come in contact with 
the juvenile justice system, such as police diversion programs;
    (ii) Prevention. Providing developmental, operational, and 
assessment assistance (financial and/or technical) for prevention 
programs in communities with a high percentage of minority residents 
with emphasis upon support for community-based organizations (including 
non-traditional organizations) that serve minority youth;
    (iii) Reintegration. Providing developmental, operational, and 
assessment assistance (financial and/or technical) for programs 
designed to reduce recidivism by facilitating the reintegration of 
minority youth in the community following release from dispositional 
commitments to reduce recidivism;
    (iv) Policies and Procedures. Providing financial and/or technical 
assistance that addresses necessary changes in statewide and local, 
executive, judicial, and legal representation policies and procedures.
    (v) Staffing and Training: Providing financial and/or technical 
assistance that addresses staffing and training needs that will 
positively impact the disproportionate confinement of minority youth in 
secure facilities.
    (4) The time-limited plans of action set forth in paragraphs (j) 
(1), (2) and (3) of this section must include a clear indication of 
current and future barriers; which agencies, organizations, or 
individual(s) will be responsible for taking what specific actions; 
when; and what the anticipated outcomes are. The interim and final 
outcomes from implementation of the time-limited plan of action must be 
reported in each State's Multi-Year Plans and Annual Plan Updates. 
Final outcomes for individual project awards are to be included with 
each State's annual performance report [paragraph (h) of this section].
    (5) Technical assistance is available through the OJJDP Technical 
Assistance Contract to help guide States with the data collection and 
analysis, and with programmatic elements of this requirement. 
Information from the OJJDP Special Emphasis Initiative on 
Disproportionate Minority Confinement pilot sites will be disseminated 
as it becomes available.
    (6) For purposes of this statutory mandate, minority populations 
are defined as: African Americans, American Indians, Asians, Pacific 
Islanders, and Hispanics.
* * * * *
    30. Section 31.403 is revised to read as follows:


Sec. 31.403  Other Requirements.

    The State assures that it will comply, and that subgrantees and 
contractors will comply, with all applicable Federal non-discrimination 
requirements, including:
    (a) Section 809(c) of the Omnibus Crime Control and Safe Streets 
Act of 1968, as amended, and made applicable by section 299A of the 
Juvenile Justice and Delinquency Prevention Act of 1974, as amended;
    (b) Title VI of the Civil Rights Act of 1964, as amended;
    (c) Section 504 of the Rehabilitation Act of 1973, as amended;
    (d) Title IX of the Education Amendments of 1972;
    (e) The Age Discrimination Act of 1975;
    (f) The Department of Justice NonDiscrimination regulations, 28 CFR 
part 42, subparts C, D, E and G;
    (g) The Department of Justice regulations on disability 
discrimination, 28 CFR part 35 and part 39; and
    (h) Subtitle A, Title II of the Americans with Disabilities Act 
(ADA) of 1990.
John J. Wilson,
Acting Administrator, Office of Juvenile Justice and Delinquency 
Prevention.
[FR Doc. 94-17961 Filed 7-22-94; 8:45 am]
BILLING CODE 4410-18-P