[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
[Rules and Regulations]
[Pages 4783-4793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00740]


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DEPARTMENT OF JUSTICE

28 CFR Part 31

[Docket No.: OJP (OJJDP) 1719]
RIN 1121-AA83


Juvenile Justice and Delinquency Prevention Act Formula Grant 
Program

AGENCY: Office of Justice Programs, Department of Justice.

ACTION: Final rule.

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SUMMARY: The Office of Juvenile Justice and Delinquency Prevention 
(``OJJDP'') of the U.S. Department of Justice's Office of Justice 
Programs (``OJP''), publishes this partial final rule to amend portions 
of the formula grant program (``Formula Grant Program'') regulation to 
reflect changes in OJJDP policy.

DATES: Effective Date: This rule is effective February 16, 2017.

FOR FURTHER INFORMATION CONTACT: Gregory Thompson, Senior Advisor, 
Office of Juvenile Justice and Delinquency Prevention, at 202-307-5911.

SUPPLEMENTARY INFORMATION: The OJJDP Formula Grant Program is 
authorized by the Juvenile Justice and Delinquency Prevention Act 
(``JJDPA''). The JJDPA authorizes OJJDP to provide an annual grant to 
each State to improve its juvenile justice system and to support 
juvenile delinquency prevention programs. OJJDP published a notice of 
proposed rulemaking on August 8, 2016, 81 FR 52377, that proposed to 
revise the entirety of the Formula Grant Program regulation.
    OJJDP is finalizing some, but not all, aspects of the proposed rule 
here. For several provisions, OJJDP has addressed the comments received 
and is amending the current Formula Grant Program regulation through 
this partial final rule. For other provisions included in the proposed 
rule, OJJDP received voluminous comments that will require additional 
time for OJJDP to consider them thoughtfully. OJJDP anticipates 
publishing a final rule in the future addressing the remainder of the 
proposed changes that are not addressed in this partial final rule.

I. Executive Summary

A. Purpose of the Regulatory Action

    The JJDPA authorizes annual formula grants to be made to States to 
improve their juvenile justice systems and to support juvenile 
delinquency prevention programs.\1\ See 42 U.S.C. 5631(a). OJJDP 
promulgates this rule pursuant to the rulemaking authority granted to 
the OJJDP Administrator (the Administrator) by 42 U.S.C. 5611(b).
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    \1\ Pursuant to 42 U.S.C. 5603(7), ``the term `State' includes 
the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, Guam, American Samoa, and the Commonwealth of 
Northern Mariana Islands.''
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B. Summary of the Major Provisions of the Partial Final Rule

    This rule amends the Formula Grant Program regulation in the 
following respects: (1) It replaces 28 CFR 31.303(f)(6), which provides 
standards for determining compliance with the

[[Page 4784]]

core requirements found at 42 U.S.C. 5633(a)(11), the 
``deinstitutionalization of status offenders'' (DSO); 42 U.S.C. 
5633(a)(12), ``separation''; and 42 U.S.C. 5633(a)(13), ``jail 
removal''; (2) it provides a definition for the term ``detain or 
confine,'' clarifying that the term refers to both the secure detention 
and non-secure detention of juveniles; (3) it changes the deadline to 
February 28th for States to report their compliance monitoring data for 
the previous federal fiscal year and provides that the Administrator 
may, for good cause, grant a State's request for an extension of the 
February 28th reporting deadline to March 31st; (4) it requires that 
States provide compliance data for 85% of facilities that are required 
to report on compliance with the DSO, separation, and jail removal 
requirements; and (5) it adds a requirement that States provide a full 
twelve months' worth of compliance data for each reporting period.

C. Cost and Benefits

    As noted in the preamble to the Notice of Proposed Rulemaking, it 
is difficult to quantify the financial costs to States of the increased 
monitoring and reporting requirements, and OJJDP did not receive any 
comments from States indicating what those increased costs might be. 
OJJDP expects, however, that those costs will be considerably lower 
under this partial final rule than they would have been under the 
proposed rule. For example, under the compliance standards in this 
partial final rule, only eight States would be out of compliance based 
on the fiscal year 2013 data, rather than the forty-eight States that 
would have been out of compliance under the standards in the proposed 
rule. In addition, in this partial final rule the revised definition of 
``detain or confine'' clarifies, per the statute, that the term does 
not apply to situations where juveniles are being held solely pending 
their return to a parent or guardian or pending transfer to the custody 
of a child welfare or social services agency. Nor (in keeping with the 
statute) does it apply to situations where juveniles are held in a non-
secure area of a building that also houses an adult jail or lockup. 
OJJDP expects that this clarification, along with the revised 
definition, will greatly reduce the amount of data that States will 
have to collect, compared to what they would have had to collect under 
the proposed definition. Finally, although the proposed rule would have 
required that 100% of facilities annually report compliance data, this 
partial final rule provides that States must submit annual compliance 
data from only 85% of those facilities.

II. Background

A. Overview

    This rule amends the regulation implementing the JJDPA Formula 
Grant Program at 28 CFR part 31, authorized by 42 U.S.C. 5631(a). This 
section of the JJDPA authorizes OJJDP to provide an annual grant to 
each State to improve its juvenile justice system and to support 
juvenile delinquency prevention programs.

B. History of This Rulemaking

    On August 8, 2016, OJP published a Notice of Proposed Rulemaking at 
81 FR 52377, seeking comments on a rule that would have superseded the 
current Formula Grant Program regulation at 28 CFR part 31 in its 
entirety. The period for commenting on the proposed rule closed on 
October 7, 2016. During that period, OJJDP received 72 written 
comments, from a diverse array of respondents, representing State 
entities that administer the JJDPA, child advocacy organizations, 
public interest groups, and individuals.
    Based on the volume and complexity of the comments received, OJP 
has decided to publish a partial final rule to implement only some of 
the provisions included in the proposed rule as amendments to the 
current regulations. Many of the provisions included in the proposed 
rule, and responses to comments regarding those provisions, will be 
addressed in a future final rule, after further consideration.
Changes Proposed in the Proposed Rule That Are Being Finalized in the 
Partial Final Rule \2\
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    \2\ Because this partial final rule amends only certain sections 
of part 31, subpart A, rather than replacing the entire regulation 
(as the proposed rule would have done), the section numbers of these 
amended provisions correspond with the sections in the current 
regulations.
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    1. The compliance standards included in section 31.9 of the 
proposed rule for the DSO, separation, and jail removal requirements 
have been significantly revised. This rule incorporates the revised 
language by amending section 31.303(f)(6) of the current regulation, 
through the adoption of a new methodology for determining the 
compliance standards on an annual basis.
    2. The requirement in section 31.7(d)(1) of the proposed rule that 
States must annually submit compliance monitoring data from 100% of all 
facilities that are required to report such data has been modified. 
This rule amends section 31.303(f)(5) of the current regulations, such 
that States will be required to report data for 85% of facilities and 
demonstrate how they would extrapolate and report, in a statistically 
valid manner, data for the remaining 15% of facilities.
    3. Consistent with the requirement in section 31.8(a) of the 
proposed rule, this rule amends section 31.303(f)(5) of the current 
regulations to change the compliance data reporting period to the 
federal fiscal year as required by the Act, at 42 U.S.C. 5633(c).
    4. Instead of the proposed annual deadline of January 31st included 
in section 31.8(b) of the proposed rule for States to submit their 
compliance monitoring reports, this rule amends section 31.303(f)(5) of 
the current regulations to change the deadline to February 28th, with a 
provision allowing the Administrator to grant a one-month extension to 
March 31st upon a State's showing of good cause.
    5. This rule modifies the definition for ``detain or confine'' 
included in section 31.2 of the proposed rule. This rule adds this 
definition in subsection 31.304(q) of the current regulations, and 
clarifies that it does not apply to juveniles who are being held by law 
enforcement solely pending their reunification with a parent or 
guardian or pending transfer to the custody of a child welfare or 
social services agency.
Changes Proposed in the Proposed Rule That Will Be Addressed in a 
Future Final Rule
    1. Proposed changes to the Disproportionate Minority Contact (DMC) 
requirement;
    2. Providing definitions for the following terms: 
``Administrator'', ``alien'', ``annual performance report'', 
``assessment'', ``authorized representative'', ``compliance monitoring 
report'', ``construction fixtures'', ``contact between juveniles and 
adult inmates'', ``convicted'', ``core requirements'', ``designated 
state agency'', ``DMC requirements'', ``DSO requirements'', ``extended 
juvenile court jurisdiction'', ``full due process rights guaranteed to 
a status offender by the Constitution of the United States'', ``jail 
removal requirements'', ``juvenile'', ``juveniles alleged to be or 
found to be delinquent'', ``juveniles who are accused of nonstatus 
offenses'', ``minority groups'', ``monitoring universe'', ``non-secure 
facility'', ``placed or placement'', ``public holidays'', 
``residential'', ``responsible agency official'', ``separation 
requirements'', ``status offender'', ``status offense'', ``twenty-four 
hours'';

[[Page 4785]]

    3. Proposed deletion of text in the current regulation that is 
repetitive of statutory provisions;
    4. Proposed deletion of the Federal wards provision in the current 
regulation;
    5. Proposed deletion of provisions in the current regulation 
rendered obsolete by the 2002 JJDPA reauthorization;
    6. Proposed deletion of requirements in the current regulation not 
specific to the formula grant program and are found elsewhere such as 
in the Uniform Administrative Requirements, Cost Principles and Audit 
Requirements for Federal Awards, at 2 CFR part 200;
    7. Proposed deletion of provisions that describe recommendations 
rather than requirements;
    8. Proposed deletion of provisions that are unnecessary or 
duplicative of the formula grant program solicitation;
    9. Prohibited discrimination provision (Sec.  31.4 in the proposed 
rule) (i.e., the non-discrimination provision at 28 CFR 31.403--``Civil 
rights requirements''--remains in effect);
    10. Proposed formula allocation (Sec.  31.5 in the proposed rule) 
(which would not alter the formula described in the Act at 42 U.S.C. 
5632, but would simply require that a State's annual allocation be 
based on data available from the U.S. Census Bureau);
    The proposed provision (Sec.  31.8(c) in the NPRM) requiring that a 
designated State official certify that the information in the State's 
compliance monitoring report is correct and complete is not being 
codified in this partial final rule, but this certification is already 
required under OJJDP's current policy on ``Monitoring of State 
Compliance with the Juvenile Justice and Delinquency Prevention Act.'' 
\3\
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    \3\ In any event, the report itself is subject to the False 
Statements Act, 18 U.S.C. 1001, as a matter of course.
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III. Discussion of Comments and Changes Made by This Rule

A. Compliance Standards

    Based heavily on feedback from commenters, and in conjunction with 
statisticians in OJP's Bureau of Justice Statistics, OJJDP has 
developed new compliance standards using the distribution of compliance 
rates reported in States' compliance monitoring reports. The compliance 
standards included in section 31.303(f)(6) of this rule are 
significantly different from the standards contained in section 
31.303(f)(6) of the current formula grant program regulations, as well 
as from those in the proposed rule. OJJDP believes that the methodology 
for establishing new compliance standards included in this partial 
final rule fully addresses the concerns raised by commenters, which are 
discussed more fully below.
1. Revised Methodology for Determining Compliance Standards
    In determining the compliance standards, the distribution of each 
set of compliance rates (i.e., for DSO, separation, and jail removal) 
using the average of two or more years of data (removing, when 
appropriate and applicable, one negative outlier each for DSO, 
separation, and jail removal) and applying a standard deviation factor 
of not less than one, will be analyzed to determine its mean, and 
standard deviations therefrom.
    As provided in the final rule, section 31.303(f)(6) provides that, 
based on this information, a compliance rate that is not less than one 
standard deviation above the mean rate will be set as the compliance 
standard. Once established, the standards will be posted annually (in 
numerical form) on OJJDP's Web site by August 31 of each year. Any 
State that reports a compliance rate above this compliance standard 
will be determined to be out of compliance. This methodology will not 
be applied, however, to States' FY 2016 and FY 2017 compliance 
monitoring reports, in order to allow for a transition period.
2. Standard for Determining Compliance Based on States' FY 2016 
Compliance Data
    Under the revised methodology described above, only data from 
Calendar Year (CY) 2013 will be used to establish standards for making 
compliance determinations based on States' FY 2016 annual monitoring 
reports (affecting the FY 2017 awards). After removing one negative 
outlier from the DSO distribution (with a rate of 70.16 per 100,000 
juvenile population), one negative outlier from the separation 
distribution (with a rate of 2.82 per 100,000 juvenile population), and 
one negative outlier in the jail removal distribution (with a rate of 
82.8 per 100,000 juvenile population), the means without the negative 
outliers, the standard deviations, and what the compliance standards 
would be, based on two standard deviations above the means, is 
presented in the table below:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Compliance
          Core requirement             Current compliance     Mean without        Standard      standard (two SD
                                            standard        negative outlier   deviation (SD)      from mean)
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DSO................................  At or below 5.8, 5.9               2.85              6.37              9.89
                                      to 17.6, 17.7 to
                                      29.4.
Separation.........................  0 (with exceptions)..              0.04              0.16              0.28
Jail Removal.......................  At or below 9........              2.38              5.66              8.94
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    After removing the negative outlier from data for each of the three 
core requirements, the average rate, per 100,000 juvenile population, 
would be 2.85 for DSO, 0.04 for separation, and 2.38 for jail removal. 
Applying a standard deviation factor of 2 to each of these averages 
results in a final rate, per 100,000 juvenile population, of 9.89 for 
DSO, 0.28 for separation, and 8.94 for jail removal. States would need 
to be at, or below, these rates for OJJDP to find them in compliance 
with the DSO, separation, and jail removal core requirements.
    As provided in this rule, amending section 31.303(f)(6) of the 
current regulation, OJJDP will employ the methodology described above 
in establishing annual compliance standards for DSO, separation, and 
jail removal core requirements for determinations based on States' FY 
2016 data. Immediately following the publication of this partial final 
rule, OJJDP will post the standards for determining compliance with the 
DSO, separation and jail removal requirements, which will be derived 
from CY 2013 data and will be used in making compliance determinations 
based on States' FY 2016 compliance monitoring reports. These 
determinations will serve as the basis for establishing whether States 
will receive their full FY 2017 formula grant

[[Page 4786]]

allocation or their awards will be reduced for non-compliance.
3. Standard for Determining Compliance Based on States' FY 2017 
Compliance Data
    As provided in this rule, amending section 31.303(f)(6), in 
establishing compliance standards to apply to the FY 2017 compliance 
data (affecting the FY 2018 awards), OJJDP will take the average of the 
combined CY 2013 and FY 2016 compliance data (removing, when 
appropriate/applicable, one negative outlier in each data collection 
period for DSO, separation, and jail removal) and apply a standard 
deviation factor of not less than one to establish the compliance 
standards to be applied to the FY 2017 compliance monitoring reports.
    This methodology, which may result in compliance standards' being 
adjusted from one year to the next, recognizes the difficulty that 
States' face in preventing all instances of non-compliance with each 
core requirement and allows a State that reports a minimal number of 
such instances to be found in compliance and to continue to receive its 
full formula grant allocation.

------------------------------------------------------------------------
                                   Applied to
   Data used to establish          compliance         Affecting fiscal
    compliance standards        monitoring report       year title II
                                      year               allocation
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CY 2013.....................  FY 2016               FY 2017
CY 2013 and FY 2016.........  FY 2017               FY 2018
FY 2016 and FY 2017.........  FY 2018               FY 2019
FY 2017 and FY 2018.........  FY 2019               FY 2020
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4. Comments on Proposed Compliance Standards
    OJJDP received numerous comments on the methodology for 
establishing the compliance standards in the proposed rule, and on the 
resulting standards published in the proposed rule. Commenters 
questioned the data used, the methodology employed to establish the 
standards, and the lack of opportunity to provide supporting 
documentation to address compliance deficiencies; they also raised the 
possibility of withdrawing from participation in the Formula Grant 
Program. Based on these comments, OJJDP has revised the compliance 
standards in the partial final rule, as discussed below, following a 
summary of the comments received.
    A number of commenters raised concern with using data from only 
three States with the lowest rates of compliance, from each of the four 
Census Bureau regions. Several commenters also made the point that the 
data used in calculating the proposed compliance standards (CY 2013), 
did not include data based on the new guidance for ``detain or 
confine,'' rendering the calculation unfair, arbitrary, rigid, and 
extreme. In addition, several States suggested that in calculating a 
rate for the compliance standards, OJP should use the average of two or 
three years of data from all States, and those data should include data 
based on the ``detain or confine'' guidance.
    A number of commenters stated that it would be unfair not to allow 
States to provide additional documentation demonstrating how they would 
address violations as they occur, in order to demonstrate compliance. 
For example, under the current compliance standards for DSO and jail 
removal, a State whose rate puts it out of compliance in principle 
could nevertheless demonstrate compliance with the de minimis standard 
by providing additional documentation (i.e., recent passage of state 
law, or executive or judicial policy; or submission of an acceptable 
plan to eliminate the instances of non-compliance), that would allow it 
to be found in compliance.
    Additionally, many commenters stated that if their State incurred 
just one DSO, separation, or jail removal violation, the State would be 
out of compliance under the proposed standards, resulting in a 
reduction of their formula grant allocation by 20% for each requirement 
with which the State is out of compliance. In addition, the State would 
be required to expend 50% of its remaining allocation to achieve 
compliance.
    In response, although the current regulation permits States with a 
certain number of instances of non-compliance nevertheless to be found 
in compliance with the de minimis standards by providing additional 
documentation, OJJDP believes that the elimination of the subjective 
nature of this de minimis review will allow for a clearer and more 
objective process by which compliance determinations will be made.
    OJJDP appreciates the thoughtful and detailed comments regarding 
the methodology used to establish the proposed compliance standards for 
the DSO, separation, and jail removal core requirements. OJJDP agrees 
that using data from all States, not just three States with the lowest 
violation rates, from each of the four Census Bureau regions, would 
provide for a more representative and balanced approach for 
establishing compliance standards.
5. States' Withdrawal From Participation in the Formula Grant Program
    Several States questioned whether they would continue to 
participate in the Formula Grant Program, should the proposed 
compliance standards be implemented. It has never been OJJDP's 
intention to implement compliance standards that would discourage 
States' participation in the Formula Grant Program. OJJDP believes that 
the methodology described in this partial final rule to establish 
annual compliance standards is responsive to comments received and will 
encourage States' continued participation in the Formula Grant Program.

B. Revised Definition of ``Detain or Confine''

    The partial final rule contains a definition for the term ``detain 
or confine'' in section 31.304(q) that differs in some respects from 
what was in the proposed rule. In response to the many comments 
received, OJJDP has revised the definition in two key respects: To 
clarify that (1) a juvenile who was not actually free to leave was 
``detained,'' regardless of whether he believed he was free to leave; 
and (2) juveniles who are being held by law enforcement personnel for 
their own safety, and pending their reunification with a parent or 
guardian or pending transfer to the custody of a child welfare or 
social service agency, are not ``detained or confined'' within the 
meaning of the JJDPA.
    OJJDP recognizes that the definition in the proposed rule may not 
have made sufficiently clear that the primary question in determining 
whether a juvenile was detained is whether he was, in fact, free to 
leave. If law

[[Page 4787]]

enforcement personnel would not have allowed the juvenile to leave, he 
was necessarily being detained, and there is no need to inquire as to 
whether he believed he was free to leave. For this reason, OJJDP has 
revised the definition to indicate that ``detain or confine'' means to 
hold, keep, or restrain a person such that he is not free to leave. If 
law enforcement personnel indicate that the juvenile was free to leave, 
it would be incumbent upon them to explain how/why the juvenile would 
have understood that he was free to leave.
    This revised definition also allows law enforcement to hold 
juveniles who (for example) are runaways, abandoned, endangered due to 
mental illness, homelessness, or drug addiction, or are victims of sex 
trafficking or other crimes, held pending their return to their parent 
or guardian or while law enforcement locates a safe environment in 
which to place them. In such instances, juveniles would not be 
considered to be ``detained or confined'' at all.
    Before addressing the specific comments regarding the definition of 
``detain or confine'' that was included in the proposed rule, OJJDP 
offers additional clarification of the impact of the definition of 
``detain or confine,'' as used in the separation and jail removal 
requirements at 42 U.S.C. 5633(a)(12) and (13), respectively. First, 
those core requirements are applicable only in specific types of 
facilities. In determining whether there has been an instance of non-
compliance with either of these core requirements, it is critical to 
note that the threshold inquiry must be ``In what type of facility was 
the juvenile held?'' An instance of non-compliance with the separation 
requirement can occur only in secure facilities in which juveniles have 
sight and sound contact with adult inmates.\4\ An instance of non-
compliance with the jail removal requirement can occur only in a jail 
or lockup for adults, as defined at 42 U.S.C. 5603(22). If the juvenile 
was not held in one of these types of facilities, the inquiry ends 
there, and there can be no instance of non-compliance. Only if the 
facility is a jail or lockup for adults or is a secure facility or a 
secure area within a facility in which adult inmates are detained must 
it be determined whether the juvenile was detained or confined therein. 
For this reason, States need not monitor and report on ``Terry'' 
investigative stops on the street or instances in which juveniles are 
detained within a public or private school, or anywhere other than a 
jail or lockup for adults, or a secure facility in which adult inmates 
are detained or confined.
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    \4\ Under 42 U.S.C. 5633(a)(12), the separation requirement is 
implicated when a juvenile is detained or confined in any 
institution in which he has contact with an adult inmate. 
``Contact'' is defined at 42 U.S.C. 5603(25) as ``the degree of 
interaction allowed between juvenile offenders in a secure custody 
status and incarcerated adults'' under 28 CFR 31.303(d)(1)(i) 
(emphasis added). In turn, section 31.303(d)(1)(i) states: ``A 
juvenile offender in a secure custody status is one who is 
physically detained or confined in a locked room or other area set 
aside or used for the specific purpose of securely detaining persons 
who are in law enforcement custody'' (emphasis added). Read 
together, these provisions indicate that ``institution'' as used in 
the separation requirement must be understood to be a secure 
facility.
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    OJP received many questions regarding whether specific scenarios 
would constitute a juvenile's being detained or confined, under the 
definition in the proposed rule. Because these were questions, rather 
than comments on the proposed rule, OJJDP will address them through 
guidance on OJJDP's Web site. OJJDP also encourages States to submit 
any additional questions about specific fact patterns, which will be 
posted along with answers on OJJDP's Web site.
Comment That OJP Is Incorrectly Using ``Miranda'' Standards in Defining 
``Detain or Confine''
    Several commenters objected to OJJDP's adherence to Fourth 
Amendment jurisprudence in determining an appropriate definition of the 
phrase ``detain or confine.''
    In response, despite these commenters' opinions to the contrary, 
Fourth Amendment jurisprudence is applicable in the context of defining 
``detain or confine'' for the purposes of the JJDPA, as the plain 
language of that phrase references the restraining of an individual's 
(in this context, a juvenile's) liberty, which, as the U.S. Supreme 
Court noted in U.S. v. Mendenhall, 446 U.S. 544, 552 (1980), is the 
very definition of a ``seizure.'' \5\ Thus, OJJDP does not agree with 
the argument that the application of Fourth Amendment jurisprudence 
generally, and/or the standards set forth in Mendenhall specifically, 
is improper.
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    \5\ As noted in the proposed rule, per U.S. v. Mendenhall, the 
Fourth Amendment governs all ``seizures'' of the person, ``including 
seizures that involve only a brief detention short of traditional 
arrest.'' See 446 U.S. 544, 547 (1980). Further, a ``seizure'' for 
the purposes of the Fourth Amendment has occurred when an officer 
``by means of physical force or a show of authority, has in some way 
restrained the liberty of a citizen.'' Id. at 548.
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    Moreover, while OJJDP recognizes that Mendenhall was in fact a case 
involving an adult, the U.S. Supreme Court has never limited the Fourth 
Amendment protections enumerated therein to the adult population. 
Indeed, the U.S. Supreme Court has consistently recognized that, due to 
the inherent differences between adults and juveniles (in terms of 
maturity and reasoning), juveniles should, in certain circumstances, be 
afforded more protections than adults would be. One such example is the 
U.S. Supreme Court's decision in J.D.B. v. North Carolina, 564 U.S. 261 
(2011). Contrary to some commenters' understanding, J.D.B. v. North 
Carolina did not establish a de facto ``reasonable minor'' standard for 
determining juvenile custody that was somehow separate from the 
standard established in Mendenhall. Rather, the Supreme Court's 
decision in J.D.B.--that a juvenile's age may affect his or her 
perception(s) of his or her interactions with law enforcement, and a 
juvenile's age, therefore, must be one of many factors considered in 
any determination of whether the interrogation of the juvenile was a 
``custodial interrogation'' for the purposes of Miranda warnings--was 
an explicit acknowledgement that Fourth Amendment protections espoused 
in Mendenhall not only extend to juveniles, but actually may be 
expanded under some circumstances where juveniles are concerned. 
Nonetheless, OJJDP has considered the commenters' stated objections to 
the application of Fourth Amendment jurisprudence and has revised the 
definition to clarify that whether the juvenile is, in fact, free to 
leave is the critical factor in determining whether he is detained. If 
he is not, in fact, free to leave, as OJJDP expects will be the case in 
the vast majority of instances, he is detained.
Comments Received Regarding Proposed Definition of ``Detain or 
Confine''
    One commenter questioned the reason for the proposed definition, 
stating that there has been either no research or at least no broadly 
published research that a significantly widespread problem exists that 
supports the implementation of the new definition.
    In response, OJJDP notes that the purpose of including the 
definition of ``detain or confine'' in the proposed rule, and in the 
partial final rule, is to clarify that the separation and jail removal 
requirements are implicated when a juvenile is detained in certain 
settings, regardless of whether he is ``securely'' detained. As noted 
above, the word ``detain'' has a plain meaning in 4th Amendment 
jurisprudence. Under that jurisprudence, one can be detained without 
being ``securely'' detained such as by a show of authority.

[[Page 4788]]

(Terry v. Ohio, 392 U.S. 1, 20, n.16 (1968)). Therefore, the absence of 
the word ``securely'' before ``detain'' in the JJDPA indicates that, on 
its face, the statutory term is not limited to juveniles who are 
``securely'' detained. Consistent with the definition of ``detain or 
confine'' in the proposed rule, and with the revised definition 
included in this partial final rule, the current regulation is being 
amended by removing the word ``securely''. To understand ``detained'' 
to refer only to juveniles who are ``securely'' detained would be to 
read a word into the statute that is simply not there.
    Several commenters contended that the proposed definition of 
``detain or confine'' is contrary to the intent of the drafters of the 
JJDPA, which was to protect juveniles held in secure custody. Because 
the term ``detain or confine'' is itself unambiguous, there is neither 
room for interpretation of the term nor warrant to attempt to 
determine--beyond what the plain text of the statute itself indicates--
the ``intent'' of the drafters. Thus, OJJDP has not changed the 
definition to mean only secure detention.\6\
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    \6\ A juvenile could be non-securely detained in a secure 
facility or secure area of an adult jail or lockup. For instance, 
the juvenile might physically be in the jail or lockup area, sitting 
in a chair without handcuffs or other restraints, but ``detained'' 
as the result of a show of authority by a law enforcement official 
present, making it clear the juvenile is not free to leave, which 
would result in an instance of non-compliance with the jail removal 
and possibly separation requirements.
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    One commenter suggested that OJJDP is proposing a new definition of 
``detain or confine,'' in order to address problems in select 
jurisdictions, and that research should be conducted to determine the 
extent of the problem of ``youth languishing in law enforcement custody 
in a non-secure environment.'' In response, OJJDP believes that the 
commenter misunderstood the purpose for the inclusion of this 
definition, which is not to address concerns within specific 
jurisdictions, but to conform more closely to the JJDPA and to clarify 
for all jurisdictions the plain meaning of the term used in the 
statute.
Concern About Law Enforcement's Ability To Detain Juveniles 
Temporarily, for Their Own Safety
    Many commenters recommended that OJJDP maintain the current 
definition of ``detain or confine,'' which requires the physical 
restraint of a juvenile in a holding cell or locked interview room or 
by cuffing to a stationary object, because that would allow law 
enforcement to continue to detain a juvenile non-securely in a law 
enforcement facility for his own safety, and pending his return to his 
parent or guardian, without its resulting in an instance of non-
compliance. Several commenters also stated that the proposed definition 
would give law enforcement the incentive to charge juveniles with a 
delinquent offense, or to charge them as adults because States could 
then detain them securely without a resulting instance of non-
compliance.
    In response, as explained above, OJJDP's revised definition in this 
rule clarifies that when law enforcement personnel are holding a 
juvenile only pending his return to his parent or guardian or pending 
his transfer to the custody of a child welfare or social service 
agency, he is not detained. OJJDP believes that the revised definition 
will allay the concerns raised by many commenters that under the 
proposed definition of ``detain or confine,'' law enforcement would 
have a disincentive to bring status offenders or non-offenders (such as 
runaways) to a law enforcement facility to hold them until a parent or 
guardian could pick them up.
    One commenter requested that OJJDP clearly specify who qualifies as 
a parent or guardian, but that is a determination that should be made 
according to the law of the relevant State.
    Several commenters questioned whether liability would attach if law 
enforcement personnel were to tell a juvenile that he was free to leave 
a law enforcement facility, the juvenile did leave the law enforcement 
facility, and as a result the juvenile suffered some harm. OJP believes 
it would not be appropriate for OJP to provide legal advice to States 
as to whether law enforcement personnel or a law enforcement agency 
could be held liable in such a situation.
How will law enforcement know what a juvenile reasonably believes?
    Many commenters stated that the proposed definition of ``detain or 
confine'' is vague, ambiguous, or confusing in that it is difficult to 
know whether a juvenile in a particular situation would have understood 
that he was free to leave. Several commenters also stated that the 
proposed definition is too subjective and will make it extremely 
difficult for law enforcement to know when a juvenile is being 
``detained'' for purposes of the Formula Grant Program.
    OJJDP disagrees that the definition is vague, ambiguous or 
confusing. As noted above, the key question is whether the juvenile 
was, in fact, free to leave the law enforcement facility, because the 
juvenile's state of mind is irrelevant if he was not free to leave. 
Under the revised definition in this partial final rule, it is only in 
instances where law enforcement personnel assert that the juvenile 
actually was free to leave that the inquiry next proceeds to whether 
the juvenile understood that he was free to leave. Contrary to the 
commenters' assertions, however, this second inquiry does not 
necessitate that law enforcement ``read the minds of juveniles'' or 
determine whether a ``reasonable juvenile'' would have felt free to 
leave. Rather, in keeping with applicable Fourth Amendment 
jurisprudence, this second determination requires an objective 
examination of the circumstances surrounding the juvenile's interaction 
with law enforcement, including any circumstance that would have 
affected how a reasonable person in the juvenile's position would 
perceive his or her freedom to leave. Because a juvenile's age may 
affect how a reasonable person in his position would perceive his 
freedom to leave, consistent with U.S. Supreme Court precedent, where 
the juvenile's age is known to law enforcement, it must be a factor 
that is taken into consideration in making the determination. See 
J.D.B., 564 U.S. at 275-77. It bears noting that the juvenile's age may 
not be determinative, or even a significant factor, in every case; but 
it is one objective factor that must be taken into consideration, along 
with other objective factors such as the location(s) of the juvenile's 
interaction(s) with law enforcement, the duration of law enforcement's 
interaction(s) with the juvenile, the number of law enforcement 
officers present during the interaction(s), and any other circumstances 
surrounding the juvenile's time in the presence of law enforcement that 
may inform a determination as to whether the juvenile understood he was 
free to leave.
    One commenter stated that whether a juvenile believes he is free to 
leave is irrelevant to whether he is protected from potential harm by 
being in contact with an adult inmate. The same commenter stated that 
law enforcement personnel have the ability ``simply by their presence . 
. . [to] limit conversation or other interaction between the juvenile 
and any adult inmate, thus limiting potential for harm.'' In response, 
OJJDP believes that the commenter's quarrel is with the JJDPA itself. 
By its express terms, the statute's separation requirement is 
implicated when a juvenile is detained or confined in any institution 
in which he has contact with an adult inmate, regardless of whether law 
enforcement

[[Page 4789]]

personnel are present and able to limit his interaction with an adult 
inmate.
How will law enforcement document whether a juvenile knew that he was 
free to leave?
    At least one commenter noted that the proposed definition of 
``detain or confine'' would cause a burden to law enforcement and 
complicate compliance monitoring activity, noting it will be cumbersome 
for law enforcement officers to collect relevant information every time 
a juvenile is brought to their departments. Additionally, several 
commenters questioned how law enforcement would document whether a 
juvenile knew that he was free to leave. In the preamble to the 
proposed rule, OJJDP gave as an example that law enforcement could 
produce a video recording of the juvenile indicating that he understood 
that he was free to leave. Commenters stated that requiring law 
enforcement personnel to make such a video recording is impractical and 
cost-prohibitive. OJJDP understands the additional burden that would 
create for a law enforcement agency. A more practical method of 
indicating that a juvenile understood that he was free to leave would 
be for law enforcement personnel to have the juvenile sign a form 
indicating that he understood he was free to leave, or for a law 
enforcement official to sign a form certifying that the juvenile was 
advised that he was free to leave.
    One commenter expressed concern that juveniles who would not 
otherwise have their information put into a law enforcement database 
might now be entered into the system. We note that States could use 
paper forms that would be made available to the State's compliance 
monitor but need not be entered into any law enforcement computer 
system.
Applicability of Term ``Detain or Confine'' to the DSO Requirement
    Several commenters questioned the use of the term ``detain or 
confine'' within the context of the DSO requirement. The commenter is 
correct that, unlike the separation and jail removal requirements, in 
which the term ``detain or confine'' is used, the DSO requirement is 
implicated when a juvenile is ``placed'' in a secure detention or 
secure correctional facility. The commenter asserted that the use of a 
different term--``placed''--for the DSO requirement--thus indicates 
that the term means something other than simply ``detained or 
confined.''
    In response, OJJDP notes that the ``placement'' of a juvenile in a 
secure detention or secure correctional facility means, at a minimum, 
that he is not free to leave and is, therefore detained (and confined). 
Therefore, a juvenile who has been ``placed'' has necessarily been 
``detained or confined.''
    In the proposed rule, for the purposes of determining whether the 
DSO requirement would be applicable, OJJDP had included a proposed 
definition of the term ``placed or placement'' to clarify that it would 
refer, not to mere ``detention or confinement,'' but to circumstances 
where detention or confinement within a secure juvenile detention or 
correctional facility has resulted in a ``placement.'' Many commenters 
noted concerns about the proposed definition of ``placed or 
placement.'' The partial final rule does not include a definition of 
``placed or placement.'' This issue will be addressed in a future final 
rule, and OJJDP will respond to all comments regarding this issue in 
detail in the subsequent final rule.
Whether a Juvenile's Participation in a ``Scared Straight'' or ``Shock 
Incarceration'' Program Would Result in Non-Compliance With the Jail 
Removal and/or Separation Requirements
    A commenter questioned whether, under the proposed rule, a juvenile 
under public authority could be required to participate in a ``Scared 
Straight'' or ``shock incarceration'' program in which he is brought 
into contact with an adult within an adult jail or lockup or in a 
secure correctional facility for adults, as a means of modifying his 
behavior. The commenter asked whether such participation would result 
in an instance of non-compliance with the jail removal and/or 
separation requirements when a parent has consented to the child's 
participation in the program, or in an instance in which the juvenile 
who is participating in the program as a form of diversion fails to 
complete the program and the original charge is reinstated. The 
commenter is apparently questioning whether the voluntariness of a 
juvenile's participation, and whether there would be consequences for 
not participating, in such a program would determine whether or not he 
was ``detained'' within sight or sight or sound contact of an adult 
inmate, resulting in an instance of non-compliance.
    In response, OJJDP notes that whether such programs may result in 
instances of non-compliance with the separation and/or jail removal 
requirements will depend on the specific manner in which the program 
operates and the circumstances of the juveniles' participation in the 
program. A key factor in determining whether instances of non-
compliance have occurred is whether juveniles participating in the 
program were free to leave the program while in sight or sound contact 
with adult inmates, regardless of whether the juvenile's initial 
participation was voluntary. If a parent or guardian has consented to 
his child's participation and may withdraw that consent at any time, 
the juvenile is not detained. States are encouraged to contact OJJDP 
for guidance about whether a particular program is resulting in--or has 
resulted in--instances of non-compliance. Generally speaking, if a 
juvenile participates in a program as a condition of diversion from the 
juvenile justice system, and does so with a parent's or guardian's 
consent, he is not detained, regardless of whether his failure to 
complete the program would result in the reinstatement of a charge 
against him.
Applicability of Proposed Definition of ``Detain or Confine'' to the 
Six-Hour Exception in the JJDPA at 42 U.S.C. 5633(a)(13)(A)
    Several commenters questioned how the proposed definition would 
apply to the provision allowing States to detain an accused delinquent 
offender for up to six hours for processing or release, while awaiting 
transfer to a juvenile facility, or in which period such juveniles make 
a court appearance, without a resulting instance of non-compliance. In 
response, OJJDP believes that no change in the final definition is 
needed in response to this comment. The definition in this rule would 
not alter the JJDPA exception at 42 U.S.C. 5633(a)(13)(A) that allows 
States to detain an accused delinquent offender for up to 6 hours for 
those purposes.
Applicability of Proposed Definition of ``Detain or Confine'' to 
Juveniles Under Criminal Jurisdiction
    One commenter stated that there should be an exception to the 
application of the proposed definition of ``detain or confine'' for 
juveniles waived or transferred to a criminal court. In response, OJJDP 
believes that no change in the final definition is needed in response 
to this comment. The core requirements do not apply to juveniles who 
are under criminal court jurisdiction.
Recommending a ``Rural Exception'' to the New Definition
    Another commenter recommended that if OJJDP decides to alter the 
current definition of ``detain or confine'', it should create a ``rural 
exception'' to the rule that would allow non-metropolitan areas to 
continue to use the current

[[Page 4790]]

definition. OJJDP has no authority under the JJDPA to allow certain 
States or localities to use a different definition of the term ``detain 
or confine.''
Proposed Alternative Definition of ``Detain or Confine''
    One commenter recommended that OJJDP remove the word ``detain'' 
from the definition and focus only on the confinement of juveniles, 
which the commenter asserts would be consistent with guidance provided 
in a memo from the OJJDP Administrator dated February 13, 2008. The 
Administrator's memorandum discusses the definition of an adult lockup, 
relevant to determining the facilities in which an instance of non-
compliance with the jail removal requirement can occur. In response, 
OJJDP believes that no change in the definition is needed in response 
to this comment. The instances of non-compliance with the jail removal 
requirement addressed in the Administrator's memorandum can occur only 
in facilities that meet the definition of a ``jail or lockup for 
adults'' as defined in the JJDPA at 42 U.S.C. 5603(22). That definition 
requires that the facility must be a ``locked facility.'' Thus, 
instances of non-compliance with the jail removal requirement cannot 
occur in non-secure facilities. Nor, as discussed above, would a 
juvenile's detention in the non-secure portion of a law enforcement 
facility implicate the jail removal requirement.
Whether the Definition of ``Detain or Confine'' Will Expand the 
Monitoring Universe
    Many commenters expressed concerns about whether the proposed rule 
would expand the types of facilities that must be included in the 
monitoring universe. In response, OJJDP has concluded that the 
definition of ``detain or confine'' in this final rule does not expand 
the current monitoring universe and that no change in the definition in 
the final rule is needed in response to this comment. Under OJJDP's 
current guidance, the following facilities must be monitored: Adult 
jails and lockups, secure detention facilities, secure correctional 
facilities, court holding facilities, and collocated facilities (which 
includes facilities previously listed). Non-secure facilities must be 
monitored periodically to ensure that they have not changed 
characteristics such that they have become secure facilities. OJJDP 
will respond to all comments regarding the scope of the monitoring 
universe in greater detail in the subsequent final rule that will be 
published in the future with respect to matters not covered in this 
partial final rule.
What data are expected for a compliance monitor to collect in order to 
monitor adequately?
    Many commenters questioned what additional data would be required 
under the proposed definition of ``detain or confine,'' and how those 
data should be collected. Under the proposed rule, as well as under the 
revised definition in this rule, law enforcement personnel in adult 
jails and lockups and other secure facilities in which both juveniles 
and adult inmates are detained, would be required to keep logs 
regarding juveniles who are detained securely and non-securely (and not 
merely those securely detained, as States have done previously). It is 
important to note here that such logs should not include juveniles 
detained--either securely or non-securely--in a non-secure area of a 
law enforcement facility, as the separation and jail removal 
requirements are not applicable in that context. It should be stressed 
here that the revised definition of ``detain or confine'' in this final 
rule does not include juveniles who are held solely pending return to 
their parents or guardians or pending transfer to a social service or 
child welfare agency, thus eliminating the need for States to collect 
data on juveniles held for these reasons. Similarly, law enforcement 
personnel in institutions (secure facilities) in which (1) accused or 
adjudicated delinquent offenders, (2) status offenders, and (3) non-
offenders who are aliens (or are alleged to be dependent, neglected, or 
abused) might have contact with adult inmates, would be required to 
keep logs on when such juveniles did, in fact, have contact with adult 
inmates.
Need for Training and Technical Assistance
    Several commenters expressed concern that OJJDP has not provided 
any training on the implementation of the ``detain or confine'' 
guidance, stating that it is unrealistic to expect States to apply this 
new guidance until appropriate training and technical assistance has 
been provided. Other commenters stated that it would be cost-
prohibitive for States to provide such training to law enforcement 
personnel. Another commenter suggested that OJJDP should highlight 
successful models both for determining in what common situations a 
juvenile would likely believe he is not free to leave as well as 
examples of best practices for States with rural and/or diffuse 
populations.
    In response, OJJDP intends to provide additional guidance materials 
regarding implementation of the proposed definition of ``detain or 
confine'' and is also planning to provide States with training in 2017 
on how to monitor for, and collect and report data on compliance in 
accordance with that definition.

C. Requirement That 100% of Facilities Must Report Compliance Data

    Many commenters expressed concern about the proposed requirement 
that 100% of facilities in their States be required to report annual 
compliance data.\7\ Commenters expressed concern that it would not be 
possible to achieve the 100% threshold, raising a number of challenges 
they would face in collecting data from 100% of the facilities in their 
States, including lack of legislative authority, time constraints, and 
an increase in associated costs.
---------------------------------------------------------------------------

    \7\ This requirement was included in OJJDP's Policy: Monitoring 
of State Compliance with the Juvenile Justice and Delinquency 
Prevention Act, provided to States in October 2015.
---------------------------------------------------------------------------

    In response, OJJDP believes that many of the commenters' concerns 
may have arisen from the belief that the proposed rule would have 
expanded the monitoring universe to include additional facilities with 
respect to which States are not currently collecting data. As discussed 
above, under the proposed rule and, more importantly, under this 
partial final rule, the monitoring universe does not change, and States 
will continue to be required to monitor adult jails and lockups, secure 
detention facilities, secure correctional facilities, and any other 
institutions (secure facilities) in which juveniles might have contact 
with adult inmates. (States must also continue to monitor non-secure 
facilities to ensure that they have not changed physical 
characteristics such that they have become secure facilities.)
    A few commenters suggested that the number of facilities that must 
report be reduced. (Various commenters respectively suggested 85%, 90%, 
or 95% as being a more practical requirement than the 100% level in the 
proposed rule.) In response, OJJDP acknowledges and understands the 
challenges described by the States in their comments, and this partial 
final rule has revised the proposal, so that States will be required to 
collect and report compliance data for 85% of facilities and to 
demonstrate how they would extrapolate and report, in a statistically 
valid manner, data for the remaining 15% of facilities.
    Under the JJDPA at 42 U.S.C. 5633(a)(14), the state plan that each

[[Page 4791]]

State must submit in order to be eligible for Formula Grant Program 
funding must ``provide for an adequate system of monitoring jails, 
detention facilities, corrections facilities, and non-secure facilities 
to insure that the [DSO, separation, and jail removal requirements] are 
met, and for annual reporting of the results of such monitoring to the 
Administrator.'' (Emphasis added.) The statutory provision does not 
specifically require reporting from 100% of facilities in a State's 
annual monitoring report, thus giving OJJDP the administrative 
discretion to permit States to report for less than 100% of all 
facilities in the State, provided that its monitoring system be 
adequate. It is in the exercise of this same administrative discretion 
that OJJDP for decades used (and promulgated in its regulations for 
this program) various de minimis standards that allowed for less than 
full compliance by States under appropriate circumstances. Cf. 
Washington Red Raspberry Comm'n v. United States, 859 F. 2d 898, 902 
(Fed. Cir. 1988) (``The de minimis concept is well-established in 
federal law. Federal courts and administrative agencies repeatedly have 
applied the de minimis principle in interpreting statues, even when 
Congress failed explicitly to provide for the rule.'')
    A few commenters indicated concern with the ``good cause'' standard 
in the proposed rule allowing for waiver of the proposed requirement 
for States to report data from 100% of facilities. In response, OJJDP 
notes that the reduction from 100% to 85% of the number of facilities 
required to report eliminates the need for a waiver exception to the 
reporting requirement, and that proposal is not included in this final 
rule.

D. Issues Relating to Reporting Compliance Data for Core Requirements

1. Reporting of Compliance Data Based on Federal Fiscal Years and 
Deadline for Reporting Compliance Data
    Many commenters objected to the language in the proposed rule 
requiring that States provide compliance data on a fiscal-year basis, 
because of the shortened period States will have for submitting 
compliance data from the time the reporting period ends on September 
30th of each year and the proposed deadline of January 31st for 
submitting their data. A few commenters noted that the period in which 
States will be collecting and verifying their data includes several 
holidays during which staff often take leave and also occurs during a 
period in which weather conditions make travel difficult within many 
States.
    Additionally, commenters expressed concern that this shortened 
timeframe would present significant challenges to submission of 
accurate data (especially in light of the requirement to collect data 
from 100% of facilities) and would require additional resources to do 
so. A few commenters recommended extending the deadline, for instance, 
to March 15th or March 31st.
    OJJDP has carefully considered these comments. The JJDPA itself 
requires reporting data on a fiscal-year basis, which was the reason 
for conforming the regulatory reporting period to the statutory 
requirement.
    In response to the concerns raised and balancing them with OJJDP's 
need for sufficient time to complete compliance determinations that 
will inform that year's awards, OJJDP has extended the deadline in this 
partial final rule to February 28th, with the possibility of an 
extension to March 31st if a State were to demonstrate good cause.
2. Requirement That States Report Twelve Months of Data for Each 
Reporting Period
    One commenter questioned whether the proposed requirement that 100% 
of facilities report compliance data annually would affect the 
requirement in section 31.303(f)(5) of the current regulation that 
States may submit a minimum of six months' of data for a reporting 
period. The proposed rule indicated that States' compliance monitoring 
reports must contain data for ``one full federal fiscal year.''
    In response, OJJDP has clarified the applicability of this 
language. This partial final rule amends section 31.303(f)(5) to delete 
the language allowing States to report ``not less than six months of 
data,'' thus making it clear that States are required to provide 
compliance data for the full twelve-month reporting period. (And, as 
noted above, this partial final rule provides that States must submit 
data from 85% of facilities that are required to report compliance 
data.)

IV. Regulatory Certifications

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Office of Juvenile Justice and Delinquency Prevention has 
reviewed this regulation and, by approving it, certifies that it will 
not have a significant economic impact on a substantial number of small 
entities. The Formula Grant Program provides funding to States pursuant 
to a statutory provision, which is not affected by this regulation. 
Because States have complete discretion as to which local governments 
and other entities will receive formula grant funds through subgrants, 
as well as the amount of any subgrants, this rule will have no direct 
effect on any particular local governments or entities.
    OJJDP received more than one comment disagreeing with OJJDP's 
assessment that the proposed regulation will not have a significant 
economic impact on a substantial number of small entities. OJJDP's 
basis for so certifying is that the rule regulates only States and 
territories, which are the recipients of funding under the Formula 
Grant Program. Commenters argued that the proposed rule, if made final 
as proposed, potentially would result in as many as 48 States being out 
of compliance with one or more of the core requirements. One commenter 
notes that because the States are required by statute to pass through 
66\2/3\ percent of the funding, the basis for certifying there is no 
significant impact on a substantial number of small governmental 
entities is not plausible and that cutting the funding to that number 
of States would certainly affect a substantial number of small 
entities.
    OJJDP disagrees with these comments because, as noted above, only 
grants to States and territories are regulated by the rule. 
Nonetheless, in this partial final rule, OJJDP has revised 
significantly the compliance standards, and expects that under the 
revised standards only eight States are likely to be out of compliance 
with one or more of the core requirements under the Act, and to receive 
a reduction in funding as a result.

Executive Orders 12866 and 13563--Regulatory Review

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation, and in accordance with Executive Order 13563 
``Improving Regulation and Regulatory Review'' section 1(b), General 
Principles of Regulation.
    The Office of Justice Programs has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and accordingly this rule has 
been reviewed by the Office of Management and Budget. This partial 
final rule makes important improvements in the setting of annual 
compliance standards for the States, clarifies the definition of 
``detain or confine,'' and makes other

[[Page 4792]]

improvements in the administration of the Formula Grant Program. The 
total formula grant appropriation funding available to States for the 
last five years has been less than $43 million per year.
    Executive Order 13563 directs agencies to propose or adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs; tailor the regulation to impose the least burden on society, 
consistent with obtaining the regulatory objectives; and, in choosing 
among alternative regulatory approaches, select those approaches that 
maximize net benefits. Executive Order 13563 recognizes that some 
benefits and costs are difficult to quantify and provides that, where 
appropriate and permitted by law, agencies may consider and discuss 
qualitative values that are difficult or impossible to quantify, 
including equity, human dignity, fairness, and distributive impacts.
    This most significant provision of this rule updates the standards 
for determining compliance with the DSO, separation, and jail removal 
requirements, which have not been updated since 1981 for DSO, 1994 for 
separation, and 1988 for jail removal. The new compliance standards in 
this rule were carefully considered in light of the potential costs and 
benefits that would result and are narrowly tailored to recognize the 
significant progress that States have made over the last 35 years while 
ensuring that States continue to strive to protect juveniles within the 
juvenile justice system.

Executive Order 13132--Federalism

    One commenter stated that in the Regulatory Certifications section 
of the preamble to the proposed rule (section V.), ``the classical 
argument between state rights vers[u]s federal powers is mentioned in 
great detail and so we feel should be addressed.'' OJJDP does not agree 
that that section includes any discussion of States' rights in relation 
to the federal government, or that any such discussion would be 
relevant. The Formula Grant Program does not impose any mandates on 
States; nor does it interfere with States' sovereignty, authorities, or 
rights. States, rather, participate in the program voluntarily and, as 
a condition of receipt of funding to improve their juvenile justice 
systems and to operate juvenile delinquency prevention programs, agree 
to comply with the program's requirements.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on distribution of power and responsibilities among the various levels 
of government, as the rule only affects the eligibility for, and use 
of, federal funding under this program. The rule will not impose 
substantial direct compliance costs on State and local governments, or 
preempt any State laws. Therefore, in accordance with Executive Order 
No. 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
& (b)(2) of Executive Order No. 12988. Pursuant to section 3(b)(1)(I) 
of the Executive Order, nothing in this or any previous rule (or in any 
administrative policy, directive, ruling, notice, guideline, guidance, 
or writing) directly relating to the Program that is the subject of 
this rule is intended to create any legal or procedural rights 
enforceable against the United States, except as the same may be 
contained within subpart B of part 94 of title 28 of the Code of 
Federal Regulations.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. The Formula Grant Program provides 
funds to States to improve their juvenile justice systems and to 
support juvenile delinquency prevention programs. As a condition of 
funding, States agree to comply with the Formula Grant Program 
requirements. Therefore, no actions are necessary under the provisions 
of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    This rule is not a major rule as defined by 5 U.S.C. 804. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign- based companies in domestic and export markets.

Paperwork Reduction Act

    This rule does not propose any new, or changes to existing, 
``collection[s] of information'' as defined by the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501, et seq.) and its implementing regulations 
at 5 CFR part 1320.

List of Subjects in 28 CFR Part 31

    Administrative practice and procedure, Formula Grant Program, 
Juvenile delinquency prevention, Juvenile justice, Juvenile Justice and 
Delinquency Prevention Act (JJDPA).

    Accordingly, for the reasons set forth in the preamble, part 31 of 
chapter I of Title 28 of the Code of Federal Regulations is amended as 
follows:

PART 31--OJJDP GRANT PROGRAMS

0
1. The authority citation for 28 CFR part 31 is revised to read as 
follows:

    Authority: 42 U.S.C 5611(b); 42 U.S.C. 5631-5633.

Subpart A--Formula Grants


Sec.  31.303  Substantive requirements.

0
2. Amend Sec.  31.303 as follows:
0
a. In paragraphs (e)(2), (e)(3)(i), and (f)(4)(vi), remove the words 
``secure custody'' and add in their place ``detention''.
0
b. Revise paragraph (f)(5) introductory text.
0
c. In paragraph (f)(5)(i)(D), remove the words ``securely detained'' 
and add in their place ``detained''.
0
d. In paragraphs (f)(5)(iii)(C) and (f)(5)(iii)(D), remove the words 
``secure detention and confinement'' and add in their place ``detention 
and confinement''.
0
e. In paragraphs (f)(5)(iv)(F), (G), (H), and (I), remove the words 
``held securely'' and add in their place ``detained''.
0
f. Revise paragraph (f)(6).
    The revisions read as follows:


Sec.  31.303  Substantive requirements.

* * * * *
    (f) * * *
    (5) Reporting requirement. The State shall report annually to the 
Administrator of OJJDP on the results of monitoring for the core 
requirements in the JJDPA at 42 U.S.C. 5633(a)(12), (13), and (14). The 
reporting period should provide 12 months of data for each federal 
fiscal year, for 85% of facilities within the State that are required 
to report compliance data, and States must extrapolate and report, in a 
statistically valid manner, data for the remaining 15% of facilities. 
The report shall be submitted to the Administrator of OJJDP by February 
28 of each year, except that the Administrator may grant an extension 
of the reporting deadline to March 31st, for good cause, upon request 
by a State.
* * * * *

[[Page 4793]]

    (6) Compliance. The State must demonstrate the extent to which the 
requirements of sections 223(a)(11), (12), and (13) of the Act are met.
    (i) In determining the compliance standards to be applied to 
States' FY 2016 compliance monitoring data, the Administrator shall 
collect all of the data from each of the States' CY 2013 compliance 
reports, remove one negative outlier in each data collection period for 
DSO, separation, and jail removal, and apply a standard deviation 
factor of two to establish the compliance standards to be applied, 
which shall be posted on OJJDP's Web site no later than March 3, 2017.
    (ii) In determining the compliance standards to be applied to 
States' FY 2017 compliance monitoring data, the Administrator shall 
collect all of the data from each of the States' CY 2013 and FY 2016 
compliance reports (removing, when appropriate or applicable, one 
negative outlier in each data collection period for DSO, separation, 
and jail removal) and apply a standard deviation factor of not less 
than one to establish the compliance standards to be applied, which 
shall be posted on OJJDP's Web site by August 31, 2017.
    (iii) In determining the compliance standards to be applied to 
States' FY 2018 and subsequent years' compliance monitoring data, the 
Administrator shall take the average of the States' compliance 
monitoring data from not less than two years prior to the compliance 
reporting period with respect to which the compliance determination 
will be made (removing, when applicable, one negative outlier in each 
data collection period for DSO, separation, and jail removal) and apply 
a standard deviation of not less than one to establish the compliance 
standards to be applied, except that the Administrator may make 
adjustments to the methodology described in this paragraph as he deems 
necessary and shall post the compliance standards on OJJDP's Web site 
by August 31st of each year.
* * * * *

0
3. Amend Sec.  31.304 by adding paragraph (q) to read as follows:


Sec.  31.304  Definitions.

* * * * *
    (q) Detain or confine means to hold, keep, or restrain a person 
such that he is not free to leave, or such that a reasonable person 
would believe that he is not free to leave, except that a juvenile held 
by law enforcement solely for the purpose of returning him to his 
parent or guardian or pending his transfer to the custody of a child 
welfare or social service agency is not detained or confined within the 
meaning of this definition.

    Dated: January 10, 2017.
Karol V. Mason,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 2017-00740 Filed 1-13-17; 8:45 am]
 BILLING CODE 4410-18-P