[Federal Register Volume 60, Number 104 (Wednesday, May 31, 1995)]
[Rules and Regulations]
[Pages 28440-28451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13046]




[[Page 28439]]

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Part II





Department of Justice





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Office of Justice Programs; Office of Juvenile Justice and Delinquency 
Prevention



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28 CFR Part 31



Formula Grants; Final Rule

  Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules 
and Regulations    
[[Page 28440]] 

DEPARTMENT OF JUSTICE

Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention

28 CFR Part 31

[OJP No. 1000F]
RIN 1121-AA28


Formula Grants

May 22, 1995.
AGENCY: Office of Justice Programs, Office of Juvenile Justice and 
Delinquency Prevention, Justice.

ACTION: Republication.

-----------------------------------------------------------------------

SUMMARY: This document is published to consolidate the Formula Grants 
Regulation for ease of use by grantees. This document reflects the 
consolidation of the revisions to the Formula Grants Regulation 
published in the Federal Register on March 10, 1995 and corrections 
published on April 21, 1995.

EFFECTIVE DATE: The final regulation became effective on March 10, 
1995.

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

SUPPLEMENTARY INFORMATION: This document contains the entire text of 
the Formula Grants Regulation, 28 CFR Part 31, including recently made 
changes and corrections. On March 10, 1995, the Office of Juvenile 
Justice and Delinquency Prevention (OJJDP) published in the Federal 
Register the final Formula Grants Regulation revising 28 CFR part 31. 
The regulation revisions provided clarification and guidance to States 
in the formulation, submission and implementation of the State Formula 
Grants Program under Part B of Title II of the Juvenile Justice and 
Delinquency Prevention Act of 1974, as amended by the Juvenile Justice 
and Delinquency Prevention Amendments of 1992 (Pub. L. 102-586, 
November 18, 1992). On April 21, 1995 (60 FR 19847), OJJDP published in 
the Federal Register corrections to the final Regulation because the 
Final Regulation, as published on March 10, 1995 (60 FR 13330), was an 
earlier draft version that was materially different from the final 
draft that was intended to be published.
    The major changes to the Final Regulation made in the March 10, 
1995 revision and subsequent April 21, 1995 correction implemented the 
1992 reauthorization statutory amendments that impact the Formula 
Grants Program. These statutory changes include: a formula grant fund 
allocation minimum base for participating States and territories; 
elimination of the ``substantial compliance criteria'' with respect to 
the deinstitutionalization of status offenders and jail and lockup 
removal requirements because full compliance is required; a requirement 
that there be separate juvenile and adult staff with respect to 
management, security and direct care in juvenile detention facilities 
that are collocated with an adult jail or lockup. The final Regulation 
includes the requirement that collocated juvenile detention facilities 
approved by the State and concurred with by OJJDP on or before June 30, 
1995, be reviewed against the regulatory criteria and OJJDP policies in 
effect at the time of the initial approval and concurrence. Facilities 
approved after the effective date of the Regulation and prior to July 
1, 1995, will be reviewed against the regulatory criteria in effect on 
the day before the effective date of the Regulation. For collocated 
juvenile detention facilities considered after June 30, 1995, OJJDP's 
concurrence is limited to one year and, thereafter, will be reviewed on 
an annual basis. The Regulation eliminated the requirement that in 
order for a collocated juvenile detention facility to receive OJJDP's 
initial and subsequent concurrences, the facility could only provide 
secure custody for juvenile criminal-type offenders, status offenders 
accused of violating a valid court order, and adjudicated delinquents 
and valid court order violators who are awaiting disposition hearings 
or transfer to a long term juvenile correctional facility.

Executive Order 12866

    This final regulation in not a ``significant regulatory action'' 
for purposes of Executive Order 12866 because it does not result in: 
(1) an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities; 
(2) create a serious inconsistency or otherwise interfere with action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; and (4) does not raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities or the principles of Executive Order 12866.

Regulatory Flexibility Act

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

Paperwork Reduction Act

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

Intergovernmental Review of Federal Programs

    In accordance with Executive Order 12372 and the Department of 
Justice's implementing regulation 28 CFR Part 31, States must submit 
formula grant applications to the State ``Single Point of Contact,'' if 
one exists. The State may take up to 60 days from the application date 
to comment on the application.

List of Subjects in 28 CFR Part 31

    Grant programs--law, Juvenile delinquency, Reporting and 
recordkeeping r equirements.

    For the reasons set out in the preamble, Title 28, Chapter I, Part 
31 of the Code of Federal Regulations is republished for the 
convenience of the reader as follows:

PART 31-FORMULA GRANTS

Subpart A--General Provisions

Sec.
31.1 General.
31.2 Statutory authority.
31.3 Formula Grant Plan and Applications.

Subpart B--Eligible Applicants

31.100 Eligibility.
31.101 Designation of State Agency.
31.102 State agency structure.
31.103 Membership of supervisory board.

Subpart C--General Requirements

31.200 General.
31.201 Audit.
31.202 Civil rights.
31.203 Open meetings and public access to records.

Subpart D--Juvenile Justice Act Requirements

31.300 General.
31.301 Funding.
31.302 Applicant State agency.
31.303 Substantive requirements.
31.304  Definitions.

Subpart E--General Conditions and Assurances

31.400  Compliance with statute.
31.401  Compliance with other Federal laws, orders, circulars.
31.402  Application on file.
31.403  Civil rights requirements.

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

Subpart A--General Provisions


Sec. 31.1  General.

    This part defines eligibility and sets forth requirements for 
application for and administration of formula grants to State 
governments authorized by part B, subpart I, of the Juvenile Justice 
and Delinquency Prevention Act.


Sec. 31.2  Statutory authority.

    The Statute establishing the Office of Juvenile Justice and 
Delinquency Prevention and giving authority to make grants for juvenile 
justice and delinquency prevention improvement programs is the Juvenile 
Justice and Delinquency Prevention Act of 1974, as amended (42 U.S.C. 
5601 et seq.).


Sec. 31.3  Formula grant plan and applications

    Formula Grant Applications for each Fiscal Year should be submitted 
to OJJDP by August 1st (60 days prior to the beginning of the fiscal 
year) or within 60 days after the States are officially notified of the 
fiscal year formula grant allocations. Beginning with FY 1995 and each 
subsequent fiscal year, all Formula Grant Applications are due no later 
than March 31 of the fiscal year for which the funds are allocated.

Subpart B--Eligible Applicants


Sec. 31.100  Eligibility.

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


Sec. 31.101  Designation of State agency.

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


Sec. 31.102  State agency structure.

    The State agency may be a discrete unit of State government or a 
division or other component of an existing State crime commission, 
planning agency or other appropriate unit of State government. Details 
of organization and structure are matters of State discretion, provided 
that the agency:
    (a) Is a definable entity in the executive branch with the 
requisite authority to carry out the responsibilities imposed by the 
JJDP Act;
    (b) Has a supervisory board (i.e., a board of directors, 
commission, committee, council, or other policy board) which has 
responsibility for supervising the preparation and administration of 
the plan and its implementation; and
    (c) Has sufficient staff and staff capability to carry out the 
board's policies and the agency's duties and responsibilities to 
administer the program, develop the plan, process applications, 
administer grants awarded under the plan, monitor and evaluate programs 
and projects, provide administration/support services, and perform such 
accountability functions as are necessary to the administration of 
Federal funds, such as grant close-out and audit of subgrant and 
contract funds. At a minimum, one full-time Juvenile Justice Specialist 
must be assigned to the Formula Grants Program by the State agency. 
Where the State does not currently provide or maintain a full-time 
Juvenile Justice Specialist, the plan must clearly establish and 
document that the program and administrative support staff resources 
currently assigned to the program will temporarily meet the adequate 
staff requirement, and provide an assurance that at least one full-time 
Juvenile Justice Specialist will be assigned to the Formula Grants 
Program by the end of FY 1995 (September 30, 1995).


Sec. 31.103  Membership of supervisory board.

    The State advisory group appointed under section 223(a)(3) may 
operate as the supervisory board for the State agency, at the 
discretion of the Governor. Where, however, a State has continuously 
maintained a broad-based law enforcement and criminal justice 
supervisory board (council) meeting all the requirements of section 
402(b)(2) of the Justice System Improvement Act of 1979, and wishes to 
maintain such a board, such composition shall continue to be acceptable 
provided that the board's membership includes the chairman and at least 
two additional citizen members of the State advisory group. For 
purposes of this requirement a citizen member is defined as any person 
who is not a full-time government employee or elected official. Any 
executive committee of such a board must include the same proportion of 
juvenile justice advisory group members as are included in the total 
board membership. Any other proposed supervisory board membership is 
subject to case by case review and approval of the OJJDP Administrator 
and will require, at a minimum, ``balanced representation'' of juvenile 
justice interests.

Subpart C--General Requirements


Sec. 31.200  General.

    This subpart sets forth general requirements applicable to formula 
grant recipients under the JJDP Act of 1974, as amended. Applicants 
must assure compliance or submit necessary information on these 
requirements.


Sec. 31.201  Audit.

    The State must assure that it adheres to the audit requirements 
enumerated in the ``Financial and Administrative Guide for Grants, 
Guide Manual 7100.1 (current edition). Chapter 8 of the Manual contains 
a comprehensive statement of audit policies and requirements relative 
to grantees and subgrantees.


Sec. 31.202  Civil rights.

    (a) To carry out the State's Federal civil rights responsibilities 
the plan must:
    (1) Designate a civil rights contact person who has lead 
responsibility in insuring that all applicable civil rights 
requirements, assurances, and conditions are met and who shall act as 
liaison in all civil rights matters with OJJDP and the OJP Office of 
Civil Rights Compliance (OCRC); and
    (2) Provide the Council's Equal Employment Opportunity Program 
(EEOP), if required to maintain one under 28 CFR 42.301, et seq., where 
the application is for $500,000 or more.
    (b) The application must provide assurance that the State will:
    (1) Require that every applicant required to formulate an EEOP in 
accordance with 28 CFR 42.201 et seq., submit a certification to the 
State that it has a current EEOP on file, which meets the requirement 
therein;
    (2) Require that every criminal or juvenile justice agency applying 
for a grant of $500,000 or more submit a copy of its EEOP (if required 
to maintain one under 28 CFR 42.301, et seq.) to OCRC at the time it 
submits its application to the State;
    (3) Inform the public and subgrantees of affected persons' rights 
to file a complaint of discrimination with OCRC for investigation;
    (4) Cooperate with OCRC during compliance reviews of recipients 
located within the State; and
    (5) Comply, and that its subgrantees and contractors will comply 
with the requirement that, in the event that a Federal or State court 
or administrative agency makes a finding of 
[[Page 28442]] discrimination of the basis of race, color, religion, 
national origin, or sex (after a due process hearing) against a State 
or a subgrantee or contractor, the affected recipient or contractor 
will forward a copy of the finding to OCRC.


Sec. 31.203  Open meetings and public access to records.

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

Subpart D--Juvenile Justice Act Requirements


Sec. 31.300  General.

    This subpart sets forth specific JJDP Act requirements for 
application and receipt of formula grants.
Sec. 31.301  Funding.

    (a) Allocation to States. Funds shall be allocated annually among 
the States on the basis of relative population of persons under age 
eighteen. If the amount allocated for Title II (other than parts D and 
E) of the JJDP Act is less than $75 million, the amount allocated to 
each State will not be less than $325,000, nor more than $400,000, 
provided that no State receives less than its allocation for FY 1992. 
The territories will receive not less than $75,000 or more than 
$100,000. If the amount appropriated for Title II (other than parts D 
and E) is $75 million or more, the amount allocated for each State will 
be not less than $400,000, nor more than $600,000, provided that parts 
D and E have been funded in the full amounts authorized. For the 
Territories, the amount is fixed at $100,000. For each of FY's 1994 and 
1995, the minimum allocation is established at $600,000 for States and 
$100,000 for Territories.
    (b) Funds for Local Use. At least two-thirds of the formula grant 
application to the state (other than the section 222(d) State Advisory 
Group set aside) must be used for programs by local government, local 
private agencies, and eligible Indian tribes, unless the State applies 
for and is granted a waiver by the OJJDP. The proportion of pass-
through funds to be made available to eligible Indian tribes shall be 
based upon that proportion of the state youth population under 18 years 
of age who reside in geographical areas where the tribes perform law 
enforcement functions. Pursuant to section 223(a)(5)(C) of the JJDP 
Act, each of the standards set forth in paragraphs (b)(1)(i) through 
(111) of this section must be met in order to establish the eligibility 
of Indian tribes to receive pass through funds:
    (1) (i) The tribal entity must be recognized by the Secretary of 
the Interior as an Indian tribe that performs law enforcement functions 
as defined in paragraph (b) (2) of this section.
    (ii) The tribal entity must agree to attempt to comply with the 
requirements of section 223(a)(12)(A), (13), and (14) of the JJDP Act; 
and
    (iii) The tribal entity must identify the juvenile justice needs to 
be served by these funds within the geographical area where the tribe 
performs law enforcement functions.
    (2) ``Law enforcement functions'' are deemed to include those 
activities pertaining to the custody of children, including, but not 
limited to, police efforts to prevent, control, or reduce crime and 
delinquency or to apprehend criminal and delinquent offenders, and/or 
activities of adult and juvenile corrections, probation, or parole 
authorities.
    (3) To carry out this requirement, OJJDP will annually provide each 
state with the most recent Bureau of Census statistics on the number of 
persons under age 18 living within the state, and the number of persons 
under age 18 who reside in geographical areas where Indian tribes 
perform law enforcement functions.
    (4) Pass-through funds available to tribal entities under section 
223(a)(5)(C) shall be made available within states to Indian tribes, 
combinations of Indian tribes, or to an organization or organizations 
designated by such tribe(s), that meet the standards set forth in 
paragraphs (b)(1)(i)-(iii) of this section. Where the relative number 
of persons under age 18 within a geographic area where an Indian tribe 
performs law enforcement functions is too small to warrant an 
individual subgrant or subgrants, the state may, after consultation 
with the eligible tribe(s), make pass-through funds available to a 
combination of eligible tribes within the state, or to an organization 
or organizations designated by and representing a group of qualifying 
tribes, or target the funds on the larger tribal jurisdictions within 
the state.
    (5) Consistent with section 223(a)(4) of the JJDP Act, the state 
must provide for consultation with Indian tribes or a combination of 
eligible tribes within the state, or an organization or organizations 
designated by qualifying tribes, in the development of a state plan 
which adequately takes into account the juvenile justice needs and 
requests of those Indian tribes within the state.
    (c) Match. Formula grants under the JJDP Act shall be 100% of 
approved costs, with the exception of planning and administration 
funds, which require a 100 percent cash match (dollar for dollar), and 
construction projects funded under section 299C(a)(2) which also 
require a 100 percent cash match.
    (d) Funds for Administration. Not more than ten percent of the 
total annual Formula Grant award may be utilized to develop the annual 
juvenile justice plan and pay for administrative expenses, including 
project monitoring. These funds are to be matched on a dollar for 
dollar basis. The State shall make available needed funds for planning 
and administration to units of local government on an equitable basis. 
Each annual application must identify uses of such funds.
    (e) Nonparticipating States. Pursuant to section 223(d), the OJJDP 
Administrator shall endeavor to make the fund allotment under section 
222(a), of a State which chooses not to participate or loses its 
eligibility to participate in the formula grant program, directly 
available to local public and private nonprofit agencies within the 
nonparticipating State. The funds may be used only for the purpose(s) 
of achieving deinstitutionalization of status offenders and 
nonoffenders, separation of juveniles from incarcerated adults, removal 
of juveniles from adult jails and lockups, and reducing the 
disproportionate confinement of minority youth in secure facilities. 
Absent a request for extension which demonstrates compelling 
circumstances justifying the reallocation of formula grant funds back 
to the State to which the funds were initially allocated, or the 
proceedings under section 223(d), formula grant funds allocated to a 
State which has failed to submit an application, plan, or monitoring 
data establishing its eligibility for the funds will, beginning with FY 
1995 be reallocated to the nonparticipating State program on September 
30 of the fiscal year for which the funds were appropriated. 
Reallocated funds will be competitively awarded to eligible recipients 
pursuant to program announcements published in the Federal Register.


Sec. 31.302  Applicant State agency.

    (a) Pursuant to section 223(a)(1), section 223(a)(2) and section 
299(c) of the JJDP Act, the State must assure that the State agency 
approved under section 299(c) has been designated as the sole 
[[Page 28443]] agency for supervising the preparation and 
administration of the plan and has the authority to implement the plan.
    (b) Advisory Group. Pursuant to section 223(a)(3) of the JJDP Act, 
the Chief Executive:
    (1) Shall establish an advisory group pursuant to section 223(a)(3) 
of the JJDP Act. The State shall provide a list of all current advisory 
group members, indicating their respective dates of appointment and how 
each member meets the membership requirements specified in this section 
of the Act.
    (2) Should consider, in meeting the statutory membership 
requirements of section 223(A)(3) (A)-(E), appointing at least one 
member who represents each of the following: A locally elected official 
representing general purpose local government; a law enforcement 
officer; representatives of juvenile justice agencies, including a 
juvenile or family court judge, a probation officer, a prosecutor, and 
a person who routinely provides legal representation to youth in 
juvenile court; a public agency representative concerned with 
delinquency prevention and treatment; a representative from a private, 
non-profit organization, such as a parents group, concerned with 
teenage drug and alcohol abuse; a high school principal; a recreation 
director; a volunteer who works with delinquent or at risk youth; a 
person with a special focus on the family; a youth worker experienced 
with programs that offer alternatives to incarceration; persons with 
special competence in addressing programs of school violence and 
vandalism and alternatives to expulsion and suspension; and persons 
with knowledge concerning learning disabilities, child abuse, neglect, 
and youth violence.
    (c) The State shall assure that it complies with the Advisory Group 
financial support requirement of section 222(d) and the composition and 
function requirements of section 223(a)(3) of the JJDP Act.


Sec. 31.303  Substantive requirements.

    (a) Assurances. The State must certify through the provision of 
assurances that it has complied and will comply (as appropriate) with 
sections 223(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), 
(16), (17), (18), (19), (20), (21), (22), and (25), and sections 229 
and 261(d), in formulating and implementing the State plan. The Formula 
Grant Application kit provides a form and guidance for the provision of 
assurances. OJJDP interprets the section 223(a)(16) assurance as 
satisfied by an affirmation that State law and/or policy clearly 
require equitable treatment on the required bases; or by providing in 
the State plan that the State agency will require an assurance of 
equitable treatment by all Formula Grant subgrant and contract 
recipients, and establish as a program goal, in conjunction with the 
State Advisory Group, the adoption and implementation of a statewide 
juvenile justice policy that all youth in the juvenile justice system 
will be treated equitably without regard to gender, race, family 
income, and mentally, emotionally, or physically handicapping 
conditions. OJJDP interprets the section 223(a)(25) assurance as 
satisfied by a provision in the State plan for the State agency and the 
State Advisory Group to promulgate policies and budget priorities that 
require the funding of programs that are part of a comprehensive and 
coordinated community system of services as set forth in section 
103(19) of the JJDP Act. This requirement is applicable when a State's 
formula grant for any fiscal year exceeds 105 percent of the State's 
formula grant for FY 1992.
    (b) Serious Juvenile Offender Emphasis. Pursuant to sections 
101(a)(10) and 223(a)(10) of the JJDP Act, OJJDP encourages States that 
have identified serious and violent juvenile offenders as a priority 
problem to allocate formula grant funds to programs designed for 
serious and violent juvenile offenders at a level consistent with the 
extent of the problem as identified through the State planning process. 
Particular attention should be given to improving prosecution, 
sentencing procedures, providing resources necessary for effective 
rehabilitation, and facilitating the coordination of services between 
the juvenile justice and criminal justice systems.
    (c) Deinstitutionalization of Status Offenders and Non-Offenders. 
Pursuant to section 223(a)(12)(A) of the JJDP Act, the State shall:
    (1) Describe its plan, procedure, and timetable covering the three-
year planning cycle, for assuring that the requirements of this section 
are met. Refer to Sec. 31.303(f)(3) for the rules related to the valid 
court order exception to this Act requirement.
    (2) Describe the barriers the State faces in achieving full 
compliance with the provisions of this requirement.
    (3) Federal Wards. Apply this requirement to alien juveniles under 
Federal jurisdiction who are held in State or local facilities.
    (4) DSO compliance. Those States which, based upon the most 
recently submitted monitoring report, have been found to be in full 
compliance with section 223(a)(12)(A) may, in lieu of addressing 
paragraphs (c)(1) and (2) of this section, provide an assurance that 
adequate plans and resources are available to maintain full compliance.
    (5) Submit the report required under section 223(a)(12)(B) of the 
Act as part of the annual monitoring report required by section 
223(a)(15) of the Act.
    (d) Contact with incarcerated adults.
    (1) Pursuant to section 223(a)(13) of the JJDP Act the State shall:
    (i) Separation. Describe its plan and procedure, covering the 
three-year planning cycle, for assuring that the requirements of this 
section are met. The term ``contact'' is defined to include any sight 
and sound contact between juveniles in a secure custody status and 
incarcerated adults, including inmate trustees. Sound contact is 
further defined to mean any oral communication between incarcerated 
adults and juveniles. Separation must be accomplished in all secure 
areas of the facility which include, but are not limited to: sallyports 
within the secure perimeter of the facility, other entry areas, all 
passageways (hallways), admissions, sleeping, toilet and shower, 
dining, recreational, educational, vocational, health care, and other 
areas as appropriate.
    (ii) In those instances where accused juvenile criminal-type 
offenders are authorized to be temporarily detained in facilities where 
adults are confined, the State must set forth the procedures for 
assuring no sight or sound contact between such juveniles and confined 
adults.
    (iii) Describe the barriers which may hinder the separation of 
alleged or adjudicated criminal type offenders, status offenders and 
non-offenders from incarcerated adults in any particular jail, lockup, 
detention or correctional facility.
    (iv) Those States which, based upon the most recently submitted 
monitoring report, have been found to be in compliance with section 
223(a)(13) may, in lieu of addressing paragraphs (d)(1)(i), (ii), and 
(iii) of this section, provide an assurance that adequate plans and 
resources are available to maintain compliance.
    (v) Assure that adjudicated offenders are not reclassified 
administratively and transferred to an adult (criminal) correctional 
authority to avoid the intent of segregating adults and juveniles in 
correctional facilities. This does not prohibit or restrict waiver of 
juveniles to criminal court for prosecution, according to State law. It 
does, however, preclude a State from administratively transferring a 
juvenile offender to an adult correctional authority or a transfer 
within a mixed [[Page 28444]] juvenile and adult facility for placement 
with adult criminals either before or after a juvenile reaches the 
statutory age of majority. It also precludes a State from transferring 
adult offenders to juvenile correctional authority for placement.
    (2) Implementation. The requirement of this provision is to be 
planned and implemented immediately by each State.
    (e) Removal of Juveniles From Adult Jails and Lockups. Pursuant to 
section 223(a)(14)of the JJDP Act, the State shall:
    (1) Describe its plan, procedure, and timetable for assuring that 
requirements of this section will be met beginning after December 8, 
1985. Refer to Sec. 31.303(f)(4) to determine the regulatory exception 
to this requirement.
    (2) Describe the barriers which the State faces in removing all 
juveniles from adult jails and lockups. This requirement excepts only 
those juveniles formally waived or transferred to criminal court and 
against whom criminal felony charges have been filed, or juveniles over 
whom a criminal court has original or concurrent jurisdiction and such 
court's jurisdiction has been invoked through the filing of criminal 
felony charges.
    (3) Collocated facilities.
    (i) Determine whether or not a facility in which juveniles are 
detained or confined is an adult jail or lockup. The JJDP Act prohibits 
the secure custody of juveniles in adult jails and lockups, except as 
otherwise provided under the Act and implementing OJJDP regulations. 
Juvenile facilities collocated with adult facilities are considered 
adult jails or lockups unless the paragraph (e)(3)(i)(D)(1)-(4) 
criteria established in this section are complied with and the 
determinations and concurrences set forth in paragraph (e)(3)(ii), 
(iii), and (iv) of this section have been made.
    (A) A collocated facility is a juvenile facility located in the 
same building as an adult jail or lockup, or is part of a related 
complex of buildings located on the same grounds as an adult jail or 
lockup. A complex of buildings is considered ``related'' when it shares 
physical features such as walls and fences, or services beyond 
mechanical services (heating, air conditioning, water and sewer), or 
the specialized services that are allowable under paragraph 
(e)(3)(i)(D)(3) of this section.
    (B) The State, with OJJDP concurrence, must determine whether a 
collocated facility qualifies as a separate juvenile detention facility 
under the four criteria set forth in Paragraph (e)(3)(i)(D)(1)-(4) of 
this section for the purpose of monitoring compliance with section 
223(a)12(A), (13) and (14) of the JJDP Act.
    (C) A needs based analysis must precede a jurisdiction's request 
for State approval and be included with the request for OJJDP 
concurrence that a collocated facility qualifies as a juvenile 
detention facility. The needs based analysis should include, but is not 
limited to, consideration of such factors as excessive travel time to 
an existing juvenile detention center, crowding in an existing facility 
(despite the use of objective detention criteria), obsolescence of an 
existing facility, and, in areas where there are no juvenile detention 
facilities, a measurable increase in the need for juvenile detention 
beds. OJJDP's technical assistance provider to the States should be 
involved in the needs based analysis (without cost to the State or 
local jurisdiction). The needs based analysis must take into 
consideration and be coordinated with the State's plans and programs 
designed to establish a continuum of detention care and to assist 
detention facilities to provide a full range of services for juvenile 
offenders.
    (D) Each of the following four criteria must be met in order to 
ensure the requisite separateness of a juvenile detention facility that 
is collocated with an adult jail or lockup:
    (1) Total separation between juvenile and adult facility spatial 
areas such that there could be no sight or sound contact between 
juveniles and incarcerated adults in the facility. Total separation of 
spatial areas can be achieved architecturally, and must provide for no 
common use areas (time-phasing is not permissible).
    (2) Total separation in all juvenile and adult program areas, 
including recreation, education, counseling, dining, sleeping, and 
general living activities. There must be an independent and 
comprehensive operational plan for the juvenile detention center which 
provides for a full range of separate program services. No program 
activities may be shared by juveniles and incarcerated adults. However, 
equipment and other resources may be used by both populations subject 
to security concerns and the criterion in paragraph (e)(3)(i)(D)(1) of 
this section.
    (3) Separate staff for the juvenile and adult populations, 
including management, security, and direct care staff. Staff providing 
specialized services (food service, laundry, maintenance and 
engineering, etc.) who are not normally in contact with detainees, or 
whose infrequent contacts occur under conditions of separation of 
juveniles and adults, can serve both populations (subject to State 
standards or licensing requirements). The day to day management, 
security and direct care functions of the juvenile detention center 
must be vested in a totally separate staff, dedicated solely to the 
juvenile population within the collocated facilities; and
    (4) In States that have established standards or licensing 
requirements for juvenile detention facilities, the juvenile facility 
must meet the standards (on the same basis as a free-standing juvenile 
detention center) and be licensed as appropriate. If there are no State 
standards or licensing requirements, then the jurisdiction must 
cooperate in a preapproval review of its physical plant, staffing 
patterns, and programs by an organization selected and compensated by 
OJJDP. This review will be based on prevailing national juvenile 
detention standards, and will inform the State's approval process and 
concurrence by OJJDP.
    (ii) The State must initially determine that the four criteria are 
fully met. Upon such determination, the State must submit to OJJDP a 
request for concurrence with the State's finding that a separate 
juvenile detention facility exists. To enable OJJDP to assess the 
separateness of the two facilities, sufficient documentation must 
accompany the request to demonstrate that each criterion has been met. 
It is incumbent upon the State to make the initial determination 
through an on-site facility (or full construction and operations plan) 
review and, through the exercise of its oversight responsibility, to 
ensure that the separate character of the juvenile detention facility 
is maintained by continuing to fully meet the four criteria set forth 
above in paragraphs (e)(3)(i)(D)(1)-(4) of this section.
    (iii) Collocated juvenile detention facilities approved by the 
State and concurred with by OJJDP on or before June 30, 1995 are to be 
reviewed against the regulatory criteria and OJJDP policies in effect 
at the time of the initial approval and concurrence, except that 
facilities approved after the effective date of this regulation, but 
prior to July 1, 1995, shall be reviewed against the regulatory 
criteria in effect on the day before the effective date of this 
regulation, and except that all collocated facilities are subject to 
the separate staff requirement established by the 1992 Amendments to 
the JJDP Act, and set forth in paragraph (e)(3)(i)(D)(3) of this 
section. Unless otherwise indicated, review of previously approved 
collocated [[Page 28445]] facilities is expected to occur as part of 
the State's regularly scheduled monitoring activities.
    (iv) OJJDP's concurrence for facilities considered after June 30, 
1995 is limited to one year and thereafter, will be reviewed on an 
annual basis. An annual on-site review of the facility must be 
conducted by the compliance monitoring staff person(s) representing or 
employed by the State agency administering the JJDP Act Formula Grants 
Program. OJJDP's concurrence is required annually, and may involve on-
site review by OJJDP staff. The purpose of the annual review is to 
determine if compliance with the criteria set forth in paragraphs 
(e)(3)(i)(D)(1)-(4) of this section is being maintained, and to assess 
the continuing need for the collocated facility and the jurisdiction's 
long term plan to move to a free-standing facility (single jurisdiction 
or regional) or other detention alternative, unless the juvenile 
detention center is part of a justice center, in which case the annual 
review will look solely at the four regulatory criteria. An example of 
a justice center is a building or a set of buildings in which various 
agencies are housed, such as law enforcement, courts, State's 
attorneys, public defenders, and probation, in addition to an adult 
jail or lockup, and a juvenile detention facility.
    (4) Those States which, based upon the most recently submitted 
monitoring report, have been found to be in full compliance with 
section 223(a)(14) may, in lieu of addressing paragraphs (e) (1) and 
(2) of this section, provide an assurance that adequate plans and 
resources are available to maintain full compliance.
    (f) Monitoring of Jails, Detention Facilities and Correctional 
Facilities.
    (1) Pursuant to section 223(a)(15) of the JJDP Act, and except as 
provided by paragraph (f)(7) of this section, the State shall:
    (i) Describe its plan, procedure, and timetable for annually 
monitoring jails, lockups, detention facilities, correctional 
facilities and non-secure facilities. The plan must at a minimum 
describe in detail each of the following tasks including the 
identification of the specific agency(s) responsible for each task.
    (A) Identification of monitoring universe: This refers to the 
identification of all residential facilities which might hold juveniles 
pursuant to public authority and thus must be classified to determine 
if it should be included in the monitoring effort. This includes those 
facilities owned or operated by public and private agencies.
    (B) Classification of the monitoring universe: This is the 
classification of all facilities to determine which ones should be 
considered as a secure detention or correctional facility, adult 
correctional institution, jail, lockup, or other type of secure or 
nonsecure facility.
    (C) Inspection of facilities: Inspection of facilities is necessary 
to ensure an accurate assessment of each facility's classification and 
record keeping. The inspection must include:
    (1) A review of the physical accommodations to determine whether it 
is a secure or non-secure facility or whether adequate sight and sound 
separation between juvenile and adult offenders exists and
    (2) a review of the record keeping system to determine whether 
sufficient data are maintained to determine compliance with section 
223(a) (12), (13) and/or (14).
    (D) Data collection and data verification: This is the actual 
collection and reporting of data to determine whether the facility is 
in compliance with the applicable requirement(s) of section 223(a) 
(12), (13) and/or (14). The length of the reporting period should be 12 
months of data, but in no case less than 6 months. If the data is self-
reported by the facility or is collected and reported by an agency 
other than the State agency designated pursuant to section 223(a)(1) of 
the JJDP Act, the plan must describe a statistically valid procedure 
used to verify the reported data.
    (ii) Provide a description of the barriers which the State faces in 
implementing and maintaining a monitoring system to report the level of 
compliance with section 223(a) (12), (13), and (14) and how it plans to 
overcome such barriers.
    (iii) Describe procedures established for receiving, investigating, 
and reporting complaints of violation of section 223(a) (12), (13), and 
(14). This should include both legislative and administrative 
procedures and sanctions.
    (2) For the purpose of monitoring for compliance with section 
223(a)(12)(A) of the Act a secure detention or correctional facility is 
any secure public or private facility used for the lawful custody of 
accused or adjudicated juvenile offenders or non-offenders, or used for 
the lawful custody of accused or convicted adult criminal offenders.
    (3) Valid Court Order. For the purpose of determining whether a 
valid court order exists and a juvenile has been found to be in 
violation of that valid order all of the following conditions must be 
present prior to secure incarceration:
    (i) The juvenile must have been brought into a court of competent 
jurisdiction and made subject to an order issued pursuant to proper 
authority. The order must be one which regulates future conduct of the 
juvenile. Prior to issuance of the order, the juvenile must have 
received the full due process rights guaranteed by the Constitution of 
the United States.
    (ii) The court must have entered a judgment and/or remedy in accord 
with established legal principles based on the facts after a hearing 
which observes proper procedures.
    (iii) The juvenile in question must have received adequate and fair 
warning of the consequences of violation of the order at the time it 
was issued and such warning must be provided to the juvenile and to the 
juvenile's attorney and/or legal guardian in writing and be reflected 
In the court record and proceedings.
    (iv) All judicial proceedings related to an alleged violation of a 
valid court order must be held before a court of competent 
jurisdiction. A juvenile accused of violating a valid court order may 
be held in secure detention beyond the 24-hour grace period permitted 
for a noncriminal juvenile offender under OJJDP monitoring policy, for 
protective purposes as prescribed by State law, or to assure the 
juvenile's appearance at the violation hearing, as provided by State 
law, if there has been a judicial determination based on a hearing 
during the 24-hour grace period that there is probable cause to believe 
the juvenile violated the court order. In such case the juveniles may 
be held pending a violation hearing for such period of time as is 
provided by State law, but in no event should detention prior to a 
violation hearing exceed 72 hours exclusive of nonjudicial days. A 
juvenile alleged or found in a violation hearing to have violated a 
Valid Court Order may be held only in a secure juvenile detention or 
correctional facility, and not in an adult jail or lockup.
    (v) Prior to and during the violation hearing the following full 
due process rights must be provided:
    (A) The right to have the charges against the juvenile in writing 
served upon him a reasonable time before the hearing;
    (B) The right to a hearing before a court;
    (C) The right to an explanation of the nature and consequences of 
the proceeding; [[Page 28446]] 
    (D) The right to legal counsel, and the right to have such counsel 
appointed by the court if indigent;
    (E) The right to confront witnesses;
    (F) The right to present witnesses;
    (G) The right to have a transcript or record of the proceedings; 
and
    (H) The right of appeal to an appropriate court.
    (vi) In entering any order that directs or authorizes disposition 
of placement in a secure facility, the judge presiding over an initial 
probable cause hearing or violation hearing must determine that all the 
elements of a valid court order (paragraphs (f)(3) (i), (ii) and (iii) 
of this section) and the applicable due process rights (paragraph 
(f)(3)(v) of this section) were afforded the juvenile and, in the case 
of a violation hearing, the judge must determine that there is no less 
restrictive alternative appropriate to the needs of the juvenile and 
the community. This determination must be preceded by a written report 
to the judge that: reviews the behavior of the juvenile and the 
circumstances under which the juvenile was brought before the court and 
made subject to such order; determines the reasons for the juvenile's 
behavior; and determines whether all dispositions other than secure 
confinement have been exhausted or are clearly inappropriate. This 
report must be prepared and submitted by an appropriate public agency 
(other than a court or law enforcement agency). A multidisciplinary 
review team that operates independently of courts or law enforcement 
agencies would satisfy this requirement even if some individual members 
of the team represent court or law enforcement agencies.
    (vii) A non-offender such as a dependent or neglected child cannot 
be placed in secure detention or correctional facilities for violating 
a valid court order.
    (4) Removal exception (section 223(a)(14)). The following 
conditions must be met in order for an accused juvenile criminal-type 
offender, awaiting an initial court appearance, to be detained up to 24 
hours (excluding weekends and holidays) in an adult jail or lockup:
    (i) The State must have an enforceable State law requiring an 
initial court appearance within 24 hours after being taken into custody 
(excluding weekends and holidays);
    (ii) The geographic area having jurisdiction over the juvenile is 
outside a metropolitan statistical area pursuant to the Bureau of 
Census' current designation;
    (iii) A determination must be made that there is no existing 
acceptable alternative placement for the juvenile pursuant to criteria 
developed by the State and approved by OJJDP;
    (iv) The adult jail or lockup must have been certified by the State 
to provide for the sight and sound separation of juveniles and 
incarcerated adults; and
    (v) The State must provide documentation that the conditions in 
paragraphs(f)(4)(i) through (iv) of this section have been met and 
received prior approval from OJJDP. OJJDP strongly recommends that 
jails and lockups that incarcerate juveniles be required to provide 
youth specific admissions screening and continuous visual supervision 
of juveniles incarcerated pursuant to this exception.
    (vi) Pursuant to section 223(a)(14) of the JJDP Act, the non-MSA 
(low population density) exception to the jail and lockup removal 
requirements as described in paragraphs (f)(4)(i) through (v) of this 
section shall remain in effect through 1997, and shall allow for secure 
custody beyond the twenty four hours period described in paragraph 
(f)(4)(i) of this section when the facility is located where conditions 
of distance to be traveled or the lack of highway, road, or other 
ground transportation do not allow for court appearances within twenty 
four hours, so that a brief (not to exceed an additional forty eight 
hours) delay is excusable; or the facility is located where conditions 
of safety exist (such as severely adverse, life-threatening weather 
conditions that do not allow for reasonably safe travel), in which case 
the time for an appearance may be delayed until twenty four hours after 
the time that such conditions allow for reasonably safe travel. States 
may use these additional statutory allowances only where the precedent 
requirements set forth in paragraphs (f)(4)(i) through (v) of this 
section have been complied with. This may necessitate statutory or 
judicial (court rule or opinion) relief within the State from the 
twenty four hours initial court appearance standard required by 
paragraph (f)(4)(i) of this section. States must document and describe 
in their annual monitoring report to OJJDP, the specific circumstances 
surrounding each individual use of the distance/ground transportation, 
and weather allowances.
    (5) Reporting requirement. The State shall report annually to the 
Administrator of OJJDP on the results of monitoring for section 
223(a)(12),(13), and (14) of the JJDP Act. The reporting period should 
provide 12 months of data, but shall not be less than six months. The 
report shall be submitted to the Administrator of OJJDP by December 31 
of each year.
    (i) To demonstrate the extent of compliance with section 
223(a)(12)(A) of the JJDP Act, the report must include, at a minimum, 
the following information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) Total number of public and private secure detention and 
correctional facilities, the total number reporting, and the number 
inspected on-site;
    (C) The total number of accused status offenders and nonoffenders, 
including out-of-State runaways and Federal wards, held in any secure 
detention or correctional facility for longer than twenty four hours 
(not including weekends or holidays), excluding those held pursuant to 
the valid court order provision as set forth in paragraph (f)(3) of 
this section or pursuant to section 922(x) of title 18, United States 
Code, or a similar State law;
    (D) The total number of accused status offenders (including valid 
court order violators, out of state runaways, and Federal wards, but 
excluding Title 18 922(x) violators) and nonoffenders securely detained 
in any adult jail, lockup, or nonapproved collocated facility for any 
length of time;
    (E) The total number of adjudicated status offenders and 
nonoffenders, including out-of-state runaways and Federal wards, held 
for any length of time in a secure detention or correctional facility, 
excluding those held pursuant to the valid court order provision or 
pursuant to title 18 U.S.C. section 922(x);
    (F) The total number of status offenders held in any secure 
detention or correctional facility pursuant to the valid court order 
provision set forth in paragraph (f)(3) of this section; and
    (G) The total number of juvenile offenders held pursuant to title 
18 U.S.C. section 922(x).
    (ii) To demonstrate the extent to which the provisions of section 
223(a)(12)(B) of the JJDP Act are being met, the report must include 
the total number of accused and adjudicated status offenders and 
nonoffenders placed in facilities that are:
    (A) Not near their home community;
    (B) Not the least restrictive appropriate alternative; and
    (C) Not community-based.
    (iii) To demonstrate the extent of compliance with section 
223(a)(13) of the JJDP Act, the report must include, at a minimum, the 
following information for the current reporting period:
    (A) Dates covered by the current reporting period; [[Page 28447]] 
    (B) The total number of facilities used to detain or confine both 
juvenile offenders and adult criminal offenders during the past 12 
months and the number inspected on-site;
    (C) The total number of facilities used for secure detention and 
confinement of both juvenile offenders and adult criminal offenders 
which did not provide sight and sound separation;
    (D) The total number of juvenile offenders and nonoffenders not 
separated from adult criminal offenders in facilities used for the 
secure detention and confinement of both juveniles and adults;
    (E) The total number of juvenile detention centers located within 
the same building or on the same grounds as an adult jail or lockup 
that have been concurred with by OJJDP, including a list of such 
facilities;
    (F) The total number of juveniles detained in collocated facilities 
concurred with by OJJDP that were not separated from the management, 
security or direct care staff of the adult jail or lockup;
    (G) The total number of juvenile detention centers located within 
the same building or on the same grounds as an adult jail or lockup 
that have not been concurred with by OJJDP, including a list of such 
facilities; and
    (H) The total number of juveniles detained in collocated facilities 
not approved by the State and concurred with by OJJDP, that were not 
sight and sound separated from adult criminal offenders.
    (iv) To demonstrate the extent of compliance with section 
223(a)(14) of the JJDP Act, the report must include, at a minimum, the 
following information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) The total number of adult jails in the State AND the number 
inspected on-site;
    (C) The total number of adult lockups in the State AND the number 
inspected on-site;
    (D) The total number of adult jails holding juveniles during the 
past twelve months;
    (E) The total number of adult lockups holding juveniles during the 
past twelve months;
    (F) The total number of accused juvenile criminal-type offenders 
held securely in adult jails, lockups, and collocated facilities not 
concurred with by OJJDP, in excess of six hours (including those held 
pursuant to the ``removal exception'' as set forth in paragraph (f)(4) 
of this section);
    (G) The total number of accused juvenile criminal-type offenders 
held securely in adult jails, lockups and collocated facilities not 
concurred with by OJJDP for less than six hours for purposes other than 
identification, investigation, processing, release to parent(s), 
transfer to court, or transfer to a juvenile facility following initial 
custody;
    (H) The total number of adjudicated juvenile criminal-type 
offenders held securely in adult jails or lockups and collocated 
facilities not concurred with by OJJDP for any length of time;
    (I) The total number of accused and adjudicated status offenders 
(including valid court order violators) and nonoffenders held securely 
in adult jails, lockups and collocated facilities not concurred with by 
OJJDP, for any length of time;
    (J) The total number of adult jails, lockups, and collocated 
facilities not concurred with by OJJDP, in areas meeting the ``removal 
exception'' as noted in paragraph (f)(4) of this section, including a 
list of such facilities and the county or jurisdiction in which each is 
located;
    (K) The total number of juveniles accused of a criminal-type 
offense who were held in excess of six hours but less than 24 hours in 
adult jails, lockups and collocated facilities not concurred with by 
OJJDP pursuant to the ``removal exception'' as set forth in paragraph 
(f)(4) of this section;
    (L) The total number of juveniles accused of a criminal-type 
offense who were held in excess of 24 hours but not more than an 
additional 48 hours in adult jails, lockups and collocated facilities 
not concurred with by OJJDP pursuant to the ``removal exception'' as 
noted in paragraph (f)(4) of this section, due to conditions of 
distance or lack of ground transportation; and
    (M) The total number of juveniles accused of a criminal-type 
offense who were held in excess of 24 hours, but not more than an 
additional 24 hours after the time such conditions as adverse weather 
allow for reasonably safe travel, in adult jails, lockups and 
collocated facilities not concurred with by OJJDP, in areas meeting the 
``removal exception'' as noted in paragraph (f)(4) of this section.
    (6) Compliance. The State must demonstrate the extent to which the 
requirements of sections 223(a)(12)(A), (13), (14), and (23) of the Act 
are met. If the State fails to demonstrate full compliance with 
sections 223(a)(12)(A) and (14), and compliance with sections 
223(a)(13) and (23) by the end of the fiscal year for any fiscal year 
beginning with fiscal year 1994, the State's allotment under Section 
222 will be reduced by twenty five percent for each such failure, 
provided that the State will lose its eligibility for any allotment 
unless: the State agrees to expend all remaining funds (except planning 
and administration, State advisory group set-aside funds and Indian 
tribe pass-through funds) for the purpose of achieving compliance with 
the mandate(s) for which the State is in noncompliance; or the 
Administrator makes discretionary determination that the State has 
substantially complied with the mandate(s) for which there is 
noncompliance and that the State has made through appropriate executive 
or legislative action, an unequivocal commitment to achieving full 
compliance within a reasonable time. In order for a determination to be 
made that a State has substantially complied with the mandate(s), the 
State must demonstrate that it has: Diligently carried out the plan 
approved by OJJDP; demonstrated significant progress toward full 
compliance; submitted a plan based on an assessment of current barriers 
to DMC; and provided an assurance that added resources will be 
expended, be it formula grants or other funds, to achieve compliance. 
Where a State's allocation is reduced, the amount available for 
planning and administration and the required pass-through allocation, 
other than State advisory group set-aside, will be reduced because they 
are based on the reduced allocation.
    (i) Substantial compliance with section 223(a)(12)(A) can be used 
to demonstrate eligibility for FY 1993 and prior year formula grant 
allocations if, within three years of initial plan submission, the 
State has achieved a seventy five percent reduction in the aggregate 
number of status offenders and nonoffenders held in secure detention or 
correctional facilities, or removal of 100 percent of such juveniles 
from secure correctional facilities only. In addition, the State must 
make an unequivocal commitment, through appropriate executive or 
legislative action, to achieving full compliance by FY 1994. Full 
compliance is achieved when a State has removed 100 percent of such 
juveniles from secure detention and correctional facilities or can 
demonstrate full compliance with de minimis exceptions pursuant to the 
policy criteria contained in the Federal Register of January 9, 1981 
(46 FR 2566-2569).
    (ii) Compliance with section 223(a)(13) has been achieved when a 
State can demonstrate that:
    (A) The last submitted monitoring report, covering a full 12 months 
of data, demonstrates that no juveniles were incarcerated in 
circumstances that [[Page 28448]] were in violation of section 
223(a)(13); or
    (B) (1) State law, regulation, court rule, or other established 
executive or judicial policy clearly prohibits the incarceration of all 
juvenile offenders in circumstances that would be in violation of 
section 223(a)(13);
    (2) All instances of noncompliance reported in the last submitted 
monitoring report were in violation of, or departures from, the State 
law, rule, or policy referred to in paragraph (f)(6)(ii)(B)(1) of this 
section;
    (3) The instances of noncompliance do not indicate a pattern or 
practice but rather constitute isolated instances; and
    (4) Existing mechanisms for the enforcement of the State law, rule, 
or policy referred to in paragraph (f)(6)(ii)(B)(1) of this section are 
such that the instances of noncompliance are unlikely to recur in the 
future.
    (iii) (A) Full compliance is achieved when a state demonstrates 
that the last submitted monitoring report, covering 12 months of actual 
data, demonstrates that no juveniles were held in adult jails or 
lockups in circumstances that were in violation of section 223(a)(14).
    (B) Full compliance with de minimis exceptions is achieved when a 
State demonstrates that it has met the standard set forth in either of 
paragraphs (f)(6)(iii)(B) (1) or (2) of this section:
    (1) Substantive De Minimis Standard. To comply with this standard 
the State must demonstrate that each of the following requirements have 
been met:
    (i) State law, court rule, or other statewide executive or judicial 
policy clearly prohibits the detention or confinement of all juveniles 
in circumstances that would be in violation of section 223(a)(14);
    (ii) All instances of noncompliance reported in the last submitted 
monitoring reported were in violation of or departures from, the State 
law, rule, or policy referred to In paragraph (f)(6)(iii)(B)(1)(i) of 
this section;
    (iii) The instances of noncompliance do not indicate a pattern or 
practice but rather constitute isolated instances;
    (iv) Existing mechanisms for the enforcement of the State law, rule 
or policy referred to in paragraph (f)(6)(iii)(B)(1)(i) of this section 
are such that the instances of noncompliance are unlikely to recur in 
the future; and
    (v) An acceptable plan has been developed to eliminate the 
noncompliant incidents and to monitor the existing mechanism referred 
to in paragraph (f)(6)(iii)(B)(1)(iv) of this section.
    (2) Numerical De Minimis Standard. To comply with this standard the 
State must demonstrate that each of the following requirements under 
paragraphs (f)(6)(iii)(B)(2) (i) and (ii) of this section have been 
met:
    (i) The incidents of noncompliance reported in the State's last 
submitted monitoring report do not exceed an annual rate of 9 per 
100,000 juvenile population of the State; and
    (ii) An acceptable plan has been developed to eliminate the 
noncompliant incidents through the enactment or enforcement of State 
law, rule, or statewide executive or judicial policy, education, the 
provision of alternatives, or other effective means.
    (iii) Exception. When the annual rate for a State exceeds 9 
incidents of noncompliance per 100,000 juvenile population, the State 
will be considered ineligible for a finding of full compliance with de 
minimis exceptions under the numerical de minimis standard unless the 
State has recently enacted changes in State law which have gone into 
effect and which the State demonstrates can reasonably be expected to 
have a substantial, significant and positive impact on the state's 
achieving full (100%) compliance or full compliance with de minimis 
exceptions by the end of the monitoring period immediately following 
the monitoring period under consideration.
    (iv) Progress. Beginning with the monitoring report due by December 
31, 1990, any State whose prior full compliance status is based on 
having met the numerical de minimis standard set forth in paragraph 
(f)(6)(iii)(B)(2)(i) of this Sec. 31.303, must annually demonstrate, in 
its request for a finding of full compliance with de minimis 
exceptions, continued and meaningful progress toward achieving full 
(100%) compliance in order to maintain eligibility for a continued 
finding of full compliance with de minimis exceptions.
    (v) Request Submission. Determinations of full compliance and full 
compliance with de minimis exceptions are made annually by OJJDP 
following submission of the monitoring report due by December 31 of 
each calendar year. Any State reporting less than full (100%) 
compliance in any annual monitoring report may request a finding of 
full compliance with de minimis exceptions under paragraph 
(f)(6)(iii)(B) (1) or (2) of this section. The request may be submitted 
in conjunction with the monitoring report, as soon thereafter as all 
information required for a determination is available, or be included 
in the annual State plan and application for the State's formula grant 
award.
    (C) Waiver. Failure to achieve full compliance as defined in this 
section shall terminate any State's eligibility for FY 1993 and prior 
year formula grant funds unless the Administrator of OJJDP waives 
termination of the State's eligibility. ln order to be eligible for 
this waiver of termination, a State must request a waiver and 
demonstrate that it meets the standards set forth in paragraphs 
(f)(6)(iii)(C) (1)-(7) of this section:
    (1) Agrees to expend all of its formula grant award except planning 
and administration, advisory group set-aside, and Indian tribe pass-
through funds, to achieve compliance with section 223(a)(14); and
    (2) Removed all status and nonoffender juveniles from adult jails 
and lockups. Compliance with this standard requires that the last 
submitted monitoring report demonstrate that no status offender 
(including those accused of or adjudicated for violating a valid court 
order) or nonoffender juveniles were securely detained in adult jails 
or lock-ups for any length of time; or that all status offenders and 
nonoffenders securely detained in adult jails and lock-ups for any 
length of time were held in violation of an enforceable State law and 
did not constitute a pattern or practice within the State; and
    (3) Made meaningful progress in removing juvenile criminal-type 
offenders from adult jails and lockups. Compliance with this standard 
requires the State to document a significant reduction in the number of 
jurisdictions securely detaining juvenile criminal-type offenders in 
violation of section 223 (a)(14) of the JJDP Act; or a significant 
reduction in the number of facilities securely detaining such 
juveniles; or a significant reduction in the average length of time 
each juvenile criminal-type offender is securely detained in an adult 
jail or lock-up; or State legislation has recently been enacted and 
taken effect and which the State demonstrates will significantly impact 
the secure detention of juvenile criminal-type offenders in adult jails 
and lock-ups; and
    (4) Diligently carried out the State's jail and lockup removal plan 
approved by OJJDP. Compliance with this standard requires that actions 
have been undertaken to achieve the State's jail and lock-up removal 
goals and objectives within approved time lines, and that the State 
Advisory Group, required by section 223 (a)(3) of the JJDP Act, has 
maintained an appropriate involvement in developing and/or implementing 
the State's plan; and
    (5) Submitted an acceptable plan, based on a assessment of current 
jail [[Page 28449]] and lockup removal barriers within the State, to 
eliminate noncompliant incidents; and
    (6) Achieved compliance with section 223(a)(15) of the JJDP Act; 
and
    (7) Demonstrates an unequivocal commitment, through appropriate 
executive or legislative action, to achieving full compliance.
    (D) Waiver Maximum. A State may receive a waiver of termination of 
eligibility from the Administrator under paragraph (f)(6)(iii)(C) of 
this section for a combined maximum of four Formula Grant Awards 
through Fiscal Year 1993. No additional waivers will be granted.
    (7) Monitoring report exemption. States which have been determined 
by the OJJDP Administrator to have achieved full compliance with 
sections 223(a)(12)(A), (a)(14), and compliance with section 223(a)(13) 
of the JJDP and wish to be exempted from the annual monitoring report 
requirements must submit a written request to the OJJDP Administrator 
which demonstrates that:
    (i) The State provides for an adequate system of monitoring jails, 
law enforcement lockup, detention facilities, to enable an annual 
determination of State compliance with sections 223(a)(12)(A), (13), 
and (14) of the JJDP Act;
    (ii) State legislation has been enacted which conforms to the 
requirements of Sections 223(a)(12)(A), (13), and (14) of the JJDP Act; 
and
    (iii) The enforcement of the legislation is statutorily or 
administratively prescribed, specifically providing that:
    (A) Authority for enforcement of the statute is assigned;
    (B) Time frames for monitoring compliance with the statute are 
specified; and
    (C) Adequate procedures are set forth for enforcement of the 
statute and the imposition of sanctions for violations.
    (g) Juvenile crime analysis. Pursuant to section 223(a)(8), the 
State must conduct an analysis of juvenile crime problems, including 
juvenile gangs that commit crimes, and juvenile justice and delinquency 
prevention needs within the State, including those geographical areas 
in which an Indian tribe performs law enforcement functions. The 
analysis and needs assessment must include educational needs, gender 
specific services, delinquency prevention and treatment services in 
rural areas, and mental health services available to juveniles in the 
juvenile justice system. The analysis should discuss barriers to 
accessing services and provide a plan to provide such services where 
needed.
    (1) Analysis. The analysis must be provided in the multiyear 
application. A suggested format for the analysis is provided in the 
Formula Grant Application Kit.
    (2) Product. The product of the analysis is a series of brief 
written problem statements set forth in the application that define and 
describe the priority problems.
    (3) Programs. Applications are to include descriptions of programs 
to be supported with JJDP Act formula grant funds. A suggested format 
for these programs is included in the application kit.
    (4) Performance Indicators. A list of performance indicators must 
be developed and set forth for each program. These indicators show what 
data will be collected at the program level to measure whether 
objectives and performance goals have been achieved and should relate 
to the measures used in the problem statement and statement of program 
objectives.
    (h) Annual Performance Report. Pursuant to section 223(a) and 
section 223(a)(22) the State plan shall provide for submission of an 
annual performance report. The State shall report on its progress in 
the implementation of the approved programs, described in the three-
year plan. The performance indicators will serve as the objective 
criteria for a meaningful assessment of progress toward achievement of 
measurable goals. The annual performance report shall describe progress 
made in addressing the problem of serious juvenile crime, as documented 
in the juvenile crime analysis pursuant to section 223(a)(8)(A). The 
annual performance report must be submitted to OJJDP no later than June 
30 and address all formula grant activities carried out during the 
previous complete calendar year, federal fiscal year, or State fiscal 
year for which information is available, regardless of which year's 
formula grant funds were used to support the activities being reported 
on, e.g., during a reporting period, activities may have been funded 
from two or more formula grant awards.
    (i) Technical Assistance. States shall include, within their plan, 
a description of technical assistance needs. Specific direction 
regarding the development and inclusion of all technical assistance 
needs and priorities will be provided in the ``Application Kit for 
Formula Grants under the JJDPA.''
    (j) Minority Detention and Confinement. Pursuant to section 
223(a)(23) of the JJDP Act, States must demonstrate specific efforts to 
reduce the proportion of juveniles detained or confined in secure 
detention facilities, secure correctional facilities, jails and lockups 
who are members of minority groups if such proportion exceeds the 
proportion such groups represent in the general population, viz., in 
most States, youth between ages ten-seventeen are subject to secure 
custody. It is essential that States approach this statutory mandate in 
a comprehensive manner. Compliance with this provision is achieved when 
a State meets the requirements set forth in paragraphs (j)(1) through 
(3) of this section:
    (1) Identification. Provide quantifiable documentation (State, 
county and local level) in the State's FY 1994 Formula Grant Plan (and 
all subsequent Multi-Year Plans) Juvenile Crime Analysis and Needs 
Assessment to determine whether minority juveniles are 
disproportionately detained or confined in secure detention and 
correctional facilities, jails and lockups in relation to their 
proportion of the State juvenile population. Guidelines are provided in 
the OJJDP Disproportionate Minority Confinement Technical Assistance 
Manual (see Phase I Matrix). Where quantifiable documentation is not 
available to determine if disproportionate minority confinement exists 
in secure detention and correctional facilities, jails and lockups, the 
State must provide a time-limited plan of action, not to exceed six 
months, for developing and implementing a system for the ongoing 
collection, analysis and dissemination of information regarding 
minorities for those facilities where documentation does not exist.
    (2) Assessment. Each State's FY 1994 Formula Grant Plan must 
provide a completed assessment of disproportionate minority 
confinement. Assessments must, at minimum, identify and explain 
differences in arrest, diversion and adjudication rates, court 
dispositions other than incarceration, the rates and periods of 
prehearing detention in and dispositional commitments to secure 
facilities of minority youth in the juvenile justice system, and 
transfers to adult court (see Phase II Matrix). If a completed 
assessment is not available, the State must submit a time-limited plan 
(not to exceed twelve months from submission of the Formula Grant 
Application) for completing the assessment.
    (3) Intervention. Each State's FY 1995 Formula Grant Plan must, 
where disproportionate confinement has been demonstrated, provide a 
time-limited plan of action for reducing the disproportionate 
confinement of minority juveniles in secure facilities. The 
intervention plan shall be based on the results of the assessment, and 
must [[Page 28450]] include, but not be limited to the following:
    (i) Diversion. Increasing the availability and improving the 
quality of diversion programs for minorities who come in contact with 
the juvenile justice system, such as police diversion programs;
    (ii) Prevention. Providing developmental, operational, and 
assessment assistance (financial and/or technical) for prevention 
programs in communities with a high percentage of minority residents 
with emphasis upon support for community-based organizations (including 
non-traditional organizations) that serve minority youth;
    (iii) Reintegration. Providing developmental, operational, and 
assessment assistance (financial and/or technical) for programs 
designed to reduce recidivism by facilitating the reintegration of 
minority youth in the community following release from dispositional 
commitments to reduce recidivism;
    (iv) Policies and procedures. Providing financial and/or technical 
assistance that addresses necessary changes in statewide and local, 
executive, judicial, and legal representation policies and procedures; 
and
    (v) Staffing and training. Providing financial and/or technical 
assistance that addresses staffing and training needs that will 
positively impact the disproportionate confinement of minority youth in 
secure facilities.
    (4) The time-limited plans of action set forth in paragraphs (j) 
(1), (2) and (3) of this section must include a clear indication of 
current and future barriers; which agencies, organizations, or 
individual(s) will be responsible for taking what specific actions; 
when; and what the anticipated outcomes are. The interim and final 
outcomes from implementation of the time-limited plan of action must be 
reported in each State's Multi-Year Plans and Annual Plan Updates. 
Final outcomes for individual project awards are to be included with 
each State's annual performance report (See Paragraph (h) of this 
Section).
    (5) Technical assistance is available through the OJJDP Technical 
Assistance Contract to help guide States with the data collection and 
analysis, and with programmatic elements of this requirement. 
Information from the OJJDP Special Emphasis Initiative on 
Disproportionate Minority Confinement pilot sites will be disseminated 
as it becomes available.
    (6) For purposes of this statutory mandate, minority populations 
are defined as: African-Americans, American Indians, Asians, Pacific 
Islanders, and Hispanics.
    (k) Pursuant to section 223(a)(24) of the JJDP Act, states shall 
agree to other terms and conditions as the Administrator may reasonably 
prescribe to assure the effectiveness of programs assisted under the 
Formula Grant.


Sec. 31.304  Definitions.

    (a) Private agency. A private non-profit agency, organization or 
institution is:
    (1) Any corporation, foundation, trust, association, cooperative, 
or accredited institution of higher education not under public 
supervision or control; and
    (2) Any other agency, organization or institution which operates 
primarily for scientific, education, service, charitable, or similar 
public purposes, but which is not under public supervision or control, 
and no part of the net earnings of which inures or may lawfully inure 
to the benefit of any private shareholder or individual, and which has 
been held by IRS to be tax-exempt under the provisions of section 
501(c)(3) of the 1954 Internal Revenue Code.
    (b) Secure. As used to define a detention or correctional facility 
this term includes residential facilities which include construction 
features designed to physically restrict the movements and activities 
of persons in custody such as locked rooms and buildings, fences, or 
other physical structures. It does not include facilities where 
physical restriction of movement or activity is provided solely through 
facility staff.
    (c) Facility. A place, an institution, a building or part thereof, 
set of buildings or an area whether or not enclosing a building or set 
of buildings which is used for the lawful custody and treatment of 
juveniles and may be owned and/or operated by public and private 
agencies.
    (d) Juvenile who is accused of having committed an offense. A 
juvenile with respect to whom a petition has been filed In the juvenile 
court or other action has occurred alleging that such juvenile is a 
juvenile offender, i.e., a criminal-type offender or a status offender, 
and no final adjudication has been made by the juvenile court.
    (e) Juvenile who has been adjudicated as having committed an 
offense. A juvenile with respect to whom the juvenile court has 
determined that such juvenile is a juvenile offender, i.e., a criminal-
type offender or a status offender.
    (f) Juvenile offender. An individual subject to the exercise of 
juvenile court jurisdiction for purposes of adjudication and treatment 
based on age and offense limitations by defined as State law, i.e., a 
criminal-type offender or a status offender.
    (g) Criminal-type offender. A juvenile offender who has been 
charged with or adjudicated for conduct which would, under the law of 
the jurisdiction in which the offense was committed, be a crime if 
committed by an adult.
    (h) Status offender. A juvenile offender who has been charged with 
or adjudicated for conduct which would not, under the law of the 
jurisdiction in which the offense was committed, be a crime if 
committed by an adult.
    (i) Non-offender. A juvenile who is subject to the jurisdiction of 
the juvenile court, usually under abuse, dependency, or neglect 
statutes for reasons other than legally prohibited conduct of the 
juvenile.
    (j) Lawful custody. The exercise of care, supervision and control 
over a juvenile offender or non-offender pursuant to the provisions of 
the law or of a judicial order or decree.
    (k) Other individual accused of having committed a criminal 
offense. An individual, adult or juvenile, who has been charged with 
committing a criminal offense in a court exercising criminal 
jurisdiction.
    (l) Other individual convicted of a criminal offense. An 
individual, adult or juvenile, who has been convicted of a criminal 
offense in court exercising criminal jurisdiction.
    (m) Adult jail. A locked facility, administered by State, county or 
local law enforcement and correctional agencies, the purpose of which 
is to detain adults charged with violating criminal law, pending trial. 
Also considered as adult jails are those facilities used to hold 
convicted adult criminal offenders sentenced for less than one year.
    (n) Adult lockup. Similar to an adult jail except that an adult 
lockup is generally a municipal or police facility of a temporary 
nature which does not hold persons after they have been formally 
charged.
    (o) Valid court order. The term means a court order given by a 
juvenile court judge to a juvenile who has been brought before the 
court and made subject to a court order. The use of the word ``valid'' 
permits the incarceration of juveniles for violation of a valid court 
order only if they received their full due process rights as guaranteed 
by the Constitution of the United States.
    (p) Local private agency. For the purposes of the pass-through 
requirement of section 223(a)(5), a local private agency is defined as 
a private non-profit agency or organization that 
[[Page 28451]] provides program services within an identifiable unit or 
a combination of units of general local government.

Subpart E--General Conditions and Assurances


Sec. 31.400  Compliance with statute.

    The applicant State must assure and certify that the State and its 
subgrantees and contractors will comply with applicable provisions of 
the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 
as amended, and with the provisions of the Juvenile Justice and 
Delinquency Prevention Act of 1974, Pub. L. 93-415, as amended, and the 
provisions of the current edition of OJP Financial and Administrative 
Guide for Grants, M7100.1.


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

    The applicant State must further assure and certify that the State 
and its subgrantees and contractors will adhere to other applicable 
Federal laws, orders and OMB circulars. These general Federal laws and 
regulations are described in greater detail in the Financial and 
Administrative Guide for Grants, M7100.1, and the Formula Grant 
Application Kit.


Sec. 31.402  Application on file.
    Any Federal funds awarded pursuant to an application must be 
distributed and expended pursuant to and in accordance with the 
programs contained in the applicant State's current approved 
application. Any departures therefrom, other than to the extent 
permitted by current program and fiscal regulations and guidelines, 
must be submitted for advance approval by the Administrator of OJJDP.


Sec. 31.403  Civil rights requirements.

    The State assures that it will comply, and that subgrantees and 
contractors will comply, with all applicable Federal non-discrimination 
requirements, including:
    (a) Section 809(c) of the Omnibus Crime Control and Safe Streets 
Act as 1968, as amended, and made applicable by section 299(A) of the 
Juvenile Justice and Delinquency Prevention Act of 1974, as amended;
    (b) Title VI of the Civil Rights Act of 1964, as amended;
    (c) Section 504 of the Rehabilitation Act of 1973, as amended;
    (d) Title IX of the Education Amendments of 1972;
    (e) The Age Discrimination Act of 1975;
    (f) The Department of Justice NonDiscrimination regulations, 28 CFR 
part 42, subparts C, D, E, and G;
    (g) The Department of Justice regulations on disability 
discrimination, 28 CFR parts 35 and 39; and
    (h) Subtitle A, title II of the Americans with Disabilities Act 
(ADA) of 1990.
Shay Bilchik,
Administrator, Office of Juvenile Justice and Delinquency Prevention.
[FR Doc. 95-13046 Filed 5-30-95; 8:45 am]
BILLING CODE 4410-18-P