[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-17961] [[Page Unknown]] [Federal Register: July 25, 1994] _______________________________________________________________________ Part III Department of Justice _______________________________________________________________________ Office of Juvenile Justice and Delinquency Prevention _______________________________________________________________________ 28 CFR Part 31 Juvenile Justice and Delinquency Prevention Office; Formula Grants; Proposed Rule DEPARTMENT OF JUSTICE Office of Justice Programs Office of Juvenile Justice and Delinquency Prevention 28 CFR Part 31 OJJDP Formula Grants Regulation AGENCY: Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. ACTION: Proposed rule and request for public comment. ----------------------------------------------------------------------- SUMMARY: The Office of Juvenile Justice and Delinquency Prevention (OJJDP) is publishing for public comment proposed amendments to the existing Formula Grants Regulation. The Formula Grants Regulation implements Part B of Title II of the Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974, as amended by the Juvenile Justice and Delinquency Prevention Amendments of 1992. The 1992 Amendments reauthorize and modify the Federal assistance program to state and local governments, and private not-for-profit agencies for juvenile justice and delinquency prevention improvements. The proposed amendments to the existing Regulation provides clarification and guidance to States in the formulation, submission and implementation of State Formula Grant plans and determinations of State compliance with plan requirements. It provides additional flexibility and guidance to participating States while strengthening several key provisions related to the mandates of the JJDP Act. DATES: Interested persons are invited to submit written comments which must be received on or before September 8, 1994. ADDRESSES: Address all comments to Mr. John J. Wilson, Acting Administrator, Office of Juvenile Justice and Delinquency Prevention (OJJDP), 633 Indiana Avenue NW., room 742, Washington, DC 20531. FOR FURTHER INFORMATION CONTACT: Ms. Roberta Dorn, Director, State Relations and Assistance Division, Office of Juvenile Justice and Delinquency Prevention (OJJDP), 633 Indiana Avenue NW., room 543, Washington, DC 20531; (202) 307-5924. SUPPLEMENTARY INFORMATION: The Office of Juvenile Justice and Delinquency Prevention is proposing revisions to the existing Regulation, codified at 28 CFR Part 31, and inviting public comment on the proposed changes. The proposed changes in the regulatory text accomplish the following: (1) continue the authority citation for the regulation; (2) revise Sec. 31.3 to establish a mandatory deadline for the submission of State Formula Grant applications; (3) revise Sec. 31.102 to provide that the State agency must, at a minimum, assign one full-time Juvenile Justice Specialist to manage the Formula Grants Program; (4) revise Sec. 31.301 to provide for statutory changes in the base allocation for States and Territories; (5) revise Sec. 31.303(e)(3) to modify the requirements for a facility located within the same building or on the same grounds as an adult jail or lockup to qualify as a separate juvenile detention facility; (6) delete Sec. 31.303(c)(3) and (e)(4) related to substantial compliance with the deinstitutionalization of status offenders (DSO) and jail and lockup removal requirements respectively, and section 31.303(d)(2) related to progress toward compliance with the separation provision; (7) revise Sec. 31.303(d)(1) to provide for statutorily required enhanced separation requirements; (8) revise Sec. 31.303(f)(3)(iv) to provide that a status offender alleged or found in a judicial hearing to have violated a valid court order may be held in a secure juvenile detention or correctional facility and not in an adult jail or lockup. This proposed revision, based on the 1992 Amendments, is effective for, and must be reflected in, State monitoring reports due by December 31, 1994, and subsequent monitoring reports; (9) revise Sec. 31.303(f)(3) to require that status offenders receive the full due process protections guaranteed by the Constitution prior to the issuance of a court order regulating future behavior, and that prior to a secure dispositional placement of a status offender found to have violated a valid court order, the court must review and consider a report on possible dispositional alternatives for the youth, the report to be prepared by a public agency or organization other than a court or law enforcement agency; (10) revise Sec. 31.303(f)(4) to provide for expansion of the non- MSA exception to jail and lockup removal to address adverse weather and distance/lack of ground transportation; (11) revise Sec. 31.303 (f)(5) to require that States must, in completing their annual monitoring report, report as violations of the section 223(a)(12)(A) deinstitutionalization requirement the number of status offenders (including those status offenders accused of violating a valid court order) and nonoffenders held in secure custody in an adult jail or lockup for any length of time. This proposed policy-based revision is effective for, and must be reflected in, State monitoring reports due by December 31, 1995, and subsequent monitoring reports; (12) delete Sec. 31.303(f)(6)(iii)(A) related to substantial compliance with the jail and lockup removal requirement and redesignate subsequent paragraphs; (13) revise Sec. 31.303(f)(6)(iii)(C), as redesignated, to allow States that have reduced the number of status and nonoffenders securely detained or confined in jails and lockups to less than 9 per 100,000 juvenile population in the State, and can demonstrate meaningful progress in removing juvenile criminal-type offenders, to qualify for a waiver of termination for annual fund allocations through Fiscal Year 1993, when full compliance with the jail and lockup removal requirement has not been achieved. This section is also revised to require that a State seeking a waiver of termination demonstrate an ``unequivocal'' commitment to achieving full compliance; (14) revise Sec. 31.303(f)(6)(iii)(D), as redesignated, to increase the maximum number of waivers that may be granted to a State from three to four; (15) revise Sec. 31.303(f)(6) to provide that failure to comply with the subsection (a)(12)(A), (13), (14) or (23) mandates for any fiscal year beginning with 1994, will result in the State's Formula Grant allocation being reduced by 25% for each such failure; (16) revise Sec. 31.303(h) to require the submission of annual performance reports by June 30, beginning with calendar year 1995; and (17) revise Sec. 31.303(j) to enhance State requirements for demonstrating compliance with the section 223(a)(23) mandate on disproportionate minority confinement, and to establish timelines for compliance. Application Deadline Section 31.1 currently requires that Formula Grant applications and related plans or plan updates for each fiscal year should be submitted to OJJDP by August 1st (60 days prior to the beginning of the fiscal year) or within 60 days after States are officially notified of each fiscal year's Formula Grants Program allocation. A number of States have submitted applications sufficiently late in recent fiscal years to impede orderly and timely application processing by OJJDP. This has resulted in an increased number of special conditions and a need for time consuming follow-up by State Relations and Assistance Division staff. The submission requirement would be changed to require that Fiscal Year 1995 applications and all subsequent applications shall be submitted to OJJDP no later than March 31 of the fiscal year for which the funds were allocated. This submission date would allow OJJDP adequate time to conduct a full review of each State's plan or plan update, give States the opportunity to address any deficiencies in the application, plan or plan update, or budget prior to award, and assure complete application processing and award of funds prior to the end of the fiscal year. State Agency Structure--Staffing In addition to the current ``adequate staff'' requirement of Sec. 31.102 for the State agency administering Formula Grant funds, the Regulation is revised to provide that a participating State agency must, at a minimum, assign one full-time Juvenile Justice Specialist to manage the Formula Grants Program. OJJDP's experience indicates that the complexity of the Formula Grants program justifies the attention of at least one full-time Juvenile Justice Specialist in each State to perform and oversee required planning and administration activities including: developing, announcing, competing, packaging, awarding, evaluating, and overseeing subawards, developing programs to address disproportionate minority confinement issues and provide for effective use of Indian tribe pass-through funds; providing for program and project monitoring; playing a central role in preparing the three year program plan and annual plan update; providing staff support to the State supervisory board and/or the State advisory group; and overseeing the reporting of State progress in achieving and maintaining compliance with the deinstitutionalization, separation, adult jail and lockup removal, and disproportionate minority confinement requirements. Funding--Allocation to States Section 222(a) provides for a ``floating minimum'' for the allocation of formula grants to States and Territories that is tied to the total appropriation level for Title II in a given fiscal year. For Fiscal Year 1993, the total appropriation for Title II of the JJDP Act (other than Parts D and E) was less than $75 million. As a result, the ``floating minimum'' formula grant allocation for any State was legislatively established at a minimum of $325,000 and a maximum of $400,000 for States, and $75,000 and $100,000 for Territories, with no State or Territory receiving less than its Fiscal Year 1992 allocation. The Congressionally stated purpose of this formula was to increase the funds available to the minimum allocation States and Territories. In order to ensure that this Congressional intent is maximized, the Fiscal Year 1993 formula grant allocations held the non-minimum States and Territories at their Fiscal Year 1992 funding levels, allocating the increased Fiscal Year 1993 formula grant funds to the minimum States and Territories on a prorata basis. For Fiscal Year 1994, the total appropriation for Title II (other than Part D) exceeds the $75 million threshold. Consequently, the ``floating minimum'' formula grant allocation for any State in Fiscal Year 1994 is established at a minimum of $400,000 and a maximum of $600,000. OJJDP proposes to implement the amended language in Section 222(a)(2)(B) to provide for a minimum allocation of $600,000, based on fund availability: ``* * * not less than $400,000, or such greater amount, up to $600,000, as is available to be allocated * * *'' All non-minimum States will also receive an increased formula grant allocation in Fiscal Year 1994. Proposed State formula grant allocations for Fiscal Years 1993 and 1994 have been provided to all States and Territories. The precise procedure used by the budget staff of the Office of Justice Programs to calculate State formula grant allocations is available upon request. Collocated Juvenile and Adult Facilities Section 223(a)(14) of the JJDP Act requires that juveniles be removed from adult jails and lockups. OJJDP policy No. 91-1401, July 16, 1991, sought to clarify the existing OJJDP regulatory requirements for establishing the existence of a separate juvenile detention facility where such facility is located in the same building or on the same grounds as an adult jail or lockup. OJJDP's initial policy on collocated juvenile and adult facilities was established by an OJJDP ``Position Statement on Minimum Requirements of Section 223(a)(14) of the Juvenile Justice and Delinquency Prevention Act, as amended,'' which was published as a Notice in the Federal Register on January 17, 1984. Four criteria were established in that policy publication, each of which had to be met to ensure the requisite separateness of juvenile and adult facilities. The criteria were subsequently incorporated into the Formula Grants regulation the following year (See 50 FR 119, 25550-25561, June 20, 1985). The July 16, 1991 OJJDP policy reiterated each of the four criteria, and sought to clarify a number of specific implementation mechanisms that would be acceptable to OJJDP while remaining within the parameters of each criterion. The clarifications in OJJDP Policy No. 91-1401 have been the subject of continued concern and controversy in the juvenile justice community. In addition, the 1992 Amendments substantially revise one of the four criteria (separate staff) for determining whether a separate juvenile detention facility exists. For these reasons, the Administrator deems it essential to provide interested parties with an opportunity to comment on each of the four collocated facility criteria. In formulating the four criteria initially, and in providing additional policy clarification, OJJDP recognized a need to distinguish an optimal system, where a juvenile detention center would never be collocated with an adult jail or lockup, from a system where States can use collocated facilities that meet the regulatory requirements for a separate facility by creating and maintaining an atmosphere that is appropriate and conducive to the care of alleged juvenile criminal-type offenders who require a secure detention environment. Given the limited level of funds available to States under the Formula Grants program, and the need to expend these funds to address a variety of priorities and needs identified in the JJDP Act and State plans, OJJDP has sought to provide States with sufficient flexibility to achieve and maintain compliance with JJDP Act mandates while, at the same time, addressing needed delinquency prevention and other system improvement initiatives. The proposed regulation clarifies the four criteria by providing that: (1) Total separation in spatial areas of juvenile and adult facilities can be achieved by providing for no common use areas or by time-phasing common use areas, provided that the arrangement precludes even haphazard or accidental contact between juvenile and adult residents and adult facility staff at all times and provided that time- phasing of common use areas cannot extend to sleeping or living areas. Under either approach to total separation, written operational plans, policies and procedures must be in place to insure that the objective of total separation is achieved; (2) total separation in juvenile and adult program activities requires the formulation of an independent and comprehensive operational plan for the juvenile facility which provides a full range of separate program activities for juveniles. While program space, equipment and resources may be shared by both juvenile and adult facility populations subject to the requirements of total separation in spatial areas, the key feature of this policy is the express requirement that the juvenile population receive a full range of services in circumstances where collocation of facilities is approved; (3) separate juvenile and adult staff--management, security and direct care--is essential to the maintenance of an appropriate atmosphere for the care of juveniles in detention. The regulation distinguishes between staff who routinely have day-to-day direct care responsibility for juveniles and specialized service staff not normally in contact with detainees. For security and direct care staff (including management), the 1992 Amendments require that these functions be vested in totally separate staff. This requirement is designed to ensure that a facility's security and direct care staff are both well qualified to serve, and appropriately focused on, the needs of the juvenile population while providing juvenile facility services; (4) in States that have standards or licensing requirements for secure juvenile detention facilities, a collocated facility must meet the standards (on the same basis as separate facilities) and be licensed as appropriate. The proposed regulation establishes an express requirement that a responsible State authority must certify that State standards and licensing requirements have been met and that the architectural configuration and operational procedures and policies of the facility assure total separation between juvenile detention center and adult facility populations. OJJDP intends these clarifications to strengthen the four requirements for a separate facility and to establish reliable parameters for States completing final steps to achieve and maintain full compliance with the jail and lockup removal requirement. The regulatory language committing OJJDP to the ``rule of reason'' represents a further attempt to place the collocated facility criteria in perspective. Finally, States are reminded of their oversight responsibility to insure that the separate character of any collocated juvenile detention facility is fully maintained following its classification as a separate juvenile detention facility. The 1992 Amendments require States to reassess the separate staff criterion in all collocated facilities, including those classified as such by the State and concurred with by OJJDP prior to the effective date of this proposed regulation. OJJDP's original policy on collocated facilities was designed to accommodate a small number of existing juvenile detention facilities. However, several States have used the policy and regulation to create a network of collocated juvenile detention facilities in rural areas as county or regional detention facilities in lieu of establishing dedicated county or regional juvenile detention facilities. Consequently, and because OJJDP does not believe either that building or establishing collocated facilities in urban areas can be justified or that States should rely upon collocated facilities as a primary or long-term strategy for achieving and maintaining compliance with the jail and lockup removal mandate in rural areas, OJJDP proposes to limit future approval of collocated facilities to those that are outside a Standard Metropolitan Statistical Area (SMSA), are operational or planned such that a determination of compliance with the criteria can be made, and have been determined by the State (with subsequent OJJDP concurrence) to meet each of the four criteria, by December 31, 1994. Criteria for Compliance With DSO, Adult Jail and Lockup Removal, Separation, and Minority Overrepresentation The proposed regulation deletes the ``substantial compliance criteria'' from Sec. 31.303(c)(3) and (e)(4) of the regulation. Pursuant to the 1992 Amendments, all eligible States and territories are required to be in full compliance with the DSO and Jail and Lockup Removal requirements in order to be eligible for FY 1994 Formula Grant funds. Also, States must demonstrate compliance with the enhanced Separation and Disproportionate Minority Confinement mandates in order to be eligible for 1994 funds. Therefore, the regulatory provision recognizing ``progress'' toward compliance with the Separation mandate is being deleted. Also, enhanced criteria and specific timelines would be established for the Disproportionate Minority Confinement Mandate. OJJDP would use these criteria and timelines to determine if States have demonstrated compliance with the Minority Overrepresentation Mandate. Deinstitutionalization of Status Offenders Revisions are proposed to the valid court order exception and monitoring report requirements related to the deinstituionalization of status offenders and nonoffenders requirement (DSO) [section 223(a)(12)(A)]. These changes are designed to bring the DSO requirement in line with the section 223(a)(14) Jail and Lockup Removal requirement. Currently, the regulatory DSO exceptions for valid court order violations [28 CFR 31.303(f)(3)] and the 24-hour monitoring report exception for detention of status and nonoffender juveniles [28 CFR 31.303(f)(5)] do not prohibit the use of adult jails and lockups for status offenders who violate a valid court order or for status or nonoffender juveniles held in secure custody pursuant to the 24-hour monitoring exception. This anomaly, which resulted from the separate years in which these requirements became law (1974 and 1980, respectively), is being addressed to reflect OJJDP's determination that there are no longer any circumstances in which the secure custody of noncriminal juveniles in adult jails and lockups can be justified or sanctioned. To the extent that inadvertent or isolated violations occur, or where violations result from emergency situations, the de minimis criteria for full compliance should continue to provide sufficient latitude to permit States to maintain full compliance with the DSO requirement. Monitoring information to reflect these changes must be included in the State Monitoring Report due by December 31, 1995, and subsequent monitoring reports. Waiver of Termination--Criteria and Number The criteria for a waiver of termination when a State has failed to achieve full compliance, or full compliance with de minimis exceptions with the jail and lockup removal requirement, were established by regulation in Sec. 31.303(f)(6) in 1989. Section 223(c)(3) of the JJDP Act provided that a State's failure to achieve compliance with the jail and lockup removal requirement ``* * * shall terminate any State's eligibility for funding unless the Administrator waives the termination of the State's eligibility on the condition that the State agrees to expend all of the funds to be received under this part by the State, [with specific exceptions] only to achieve compliance with subsection (a)(14).'' OJJDP established seven regulatory criteria to be satisfied by a State requesting a waiver. OJJDP's premise, based on Congressional guidance, was that ``A State which satisfies these standards qualifies for a waiver on the basis that: (1) It has made significant progress to date; and (2) additional funding is likely to produce further progress toward compliance (54 FR 14769, April 12, 1989). The seven criteria, set forth at 28 CFR 31.303(f)(6)(iii)(D)(2), provide that a State requesting a waiver must demonstrate that it: (i) Agrees to expend all of its Formula Grant Award except planning and administration, advisory group set aside, and Indian tribe pass- through funds, to achieve compliance with section 223(a)(14); and (ii) Removed all status and nonoffender juveniles from adult jails and lockups as set forth in paragraph (f)(6)(iii)(A)(2)(i) of this section; and (iii) Made meaningful progress in removing other juveniles from adult jails and lockups as set forth in paragraph (f)(6)(iii)(A)(2)(ii) of this section; and (iv) Diligently carried out the State's jail and lockup removal plan as set forth in paragraph (f)(6)(iii)(A)(2)(iii) of this section; and (v) Submitted an acceptable plan, based on an assessment of current jail and lockup removal barriers within the State, to eliminate noncompliant incidents; and (vi) Achieved compliance with section 223(a)(15) of the JJDP Act; and (vii) Demonstrated a commitment, through appropriate executive or legislative action, to achieving full compliance. The reference in (ii) above, is to regulatory provisions implementing the former ``substantial compliance'' standard, which reads as follows: (i) Removed all status and nonoffender juveniles from adult jails and lockups. Compliance with this standard requires that the last submitted monitoring report demonstrate that no status offender (including those accused of or adjudicated for violating a valid court order) or nonoffender juveniles were securely detained in adult jails or lockups for any length of time; or, that all status offenders and nonoffenders securely detained in adult jails and lockups for any length of time were held in violation of an enforceable state law and did not constitute a pattern or practice within the state. Currently, several States have not been awarded their FY 1992 and/ or FY 1993 funds because they cannot meet criterion (ii) for receiving a waiver. While the numbers of status and nonoffenders are typically small, these States either lack an enforceable State law which would prohibit any violations or the State has been unable to demonstrate that the violations do not constitute a pattern or practice within the State. OJJDP does not believe that the practice of detaining status or nonoffender juveniles in adult jails or lockups is acceptable or that States should in any way sanction or permit such a practice. However, OJJDP also has to weigh the detriment that will occur if States which are close to achieving full compliance are deprived of a significant means of obtaining that important goal through the application of criteria that are inflexible. Consequently, OJJDP proposes to modify criterion (ii) to provide that States can meet the standard by demonstrating that the number of status offenders (including valid court order violators) and nonoffenders securely detained in adult jails and lockups is less than the numerical de minimis rate of 9 per 100,000 juvenile population in the State. This provision is balanced by the addition in criterion (vii) of a requirement that the State demonstrate an unequivocal commitment, through appropriate executive or legislative action, to achieving full compliance, and the proposed change in the monitoring exception for DSO to prohibit placing a status or nonoffender juvenile in an adult jail or lockup for any length of time. The proposed revisions should provide these few remaining States with a reasonable opportunity to achieve full compliance without a loss of Formula Grant Program funds while, at the same time, reiterating the Congressional mandate that adult jails and lockups are inappropriate places in which to securely detain children who have committed no criminal law violation. Finally, OJJDP proposes to increase the maximum number of waivers of termination from three to four. There are several States that may need to receive a fourth waiver in order to be eligible for a Fiscal Year 1992 or 1993 Formula Grant Award. Executive Order 12866 This notice is not a ``significant regulatory action'' for purposes of Executive Order 12886 because it does not result in: (1) an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; and (4) does not raise novel legal or policy issues arising out of legal mandates, the President's priorities or the principles of Executive Order No. 12866. Regulatory Flexibility Act This proposed regulation, if promulgated, will not have a ``significant'' economic impact on a substantial number of small ``entities,'' as defined by the Regulatory Flexibility Act (Pub.L. 96- 354). Paperwork Reduction Act No collection of information requirements are contained in or effected by this regulation (See the Paperwork Reduction Act, 44 U.S.C. 3504(H)). Intergovernmental Review of Federal Programs In accordance with Executive Order 12372 and the Department of Justice's implementing regulation 28 CFR Part 30, States must submit Formula Grant Program applications to the State ``Single Point of Contact,'' if one exists. The State may take up to 60 days from the application date to comment on the application. Lists of Subjects in 28 CFR Part 31 Grant programs--law, juvenile delinquency, grant programs. For the reasons set forth in the preamble, it is proposed to amend the OJJDP Formula Grants Regulation, 28 CFR Part 31, as follows: PART 31--[AMENDED] 1. The authority citation for Part 31 would continue to read as follows: Authority: Juvenile Justice and Delinquency Prevention Act of 1974, as amended (42 U.S.C. 5601 et seq.). 2. Section 31.3 is revised to read as follows: Sec. 31.3 General. Formula Grant Applications for each fiscal year should be submitted to OJJDP by August 1 (60 days prior to the beginning of the fiscal year) or within 60 days after the States are officially notified of the fiscal year formula grant allocations. Beginning with Fiscal Year 1995 and each subsequent fiscal year, all Formula Grant Applications must be submitted no later than March 31 of the fiscal year for which the funds are allocated. 3. Section 31.101 is revised to read as follows: Sec. 31.101 Designation of State agency. The Chief Executive of each State which chooses to apply for a formula grant shall establish or designate a State agency as the sole agency for supervising the preparation and administration of the plan. The plan must demonstrate compliance with administrative and supervisory board membership requirements established by the OJJDP Administrator pursuant to section 299(c) of the JJDP Act. States must have available for review a copy of the State law or executive order establishing the State agency and its authority. 4. Section 31.102(c) is amended by adding the following sentence at the end thereof: Sec. 31.102 State agency structure. (c) * * * At a minimum, one full-time Juvenile Justice Specialist must be assigned to the Formula Grants Program by the State agency. Where the State does not currently provide or maintain a full-time Juvenile Justice Specialist, the plan must clearly establish and document that the program and administrative support staff resources currently assigned to the program will temporarily meet the adequate staff requirement, and provide an assurance that at least one full-time Juvenile Justice Specialist will be assigned to the Formula Grants Program by the end of Fiscal Year 1995 (September 30, 1995). 5. Section 31.203 is revised to read as follows: Sec. 31.203 Open meetings and public access to records. The State must assure that the State agency, its supervisory board established pursuant to section 299(c) and the State advisory group established pursuant to section 223(a)(3) will follow applicable State open meeting and public access laws and regulations in the conduct of meetings and the maintenance of records relating to their functions. 6. Section 31.301 (a), (c), (d), and (e) is revised to read as follows: Sec. 31.301 Funding. (a) Allocation to states. Funds shall be allocated annually among the States on the basis of relative population of persons under age 18. If the amount allocated for title II (other than Parts D and E) of the JJDP Act is less than $75 million, the amount allocated to each State will not be less than $325,000, nor more than $400,000, provided that no State receives less than its allocation for Fiscal Year 1992. The Territories will receive not less than $75,000 or more than $100,000. If the amount appropriated for title II (other than Part D) is $75 million or more, the amount allocated for each State will be not less than $400,000, nor more than $600,000, provided that Parts D and E have been funded in the full amounts authorized. For the Territories, the amount remains at $100,000. * * * * * (c) Match. Formula Grants under the JJDP Act shall be 100% of approved costs, with the exception of planning and administration funds, which require a 100% cash match (dollar for dollar), and construction projects funded under section 299C (a)(2) of the JJDP Act which also require a 100% cash match. (d) Funds for administration. Not more than 10% of the total annual Formula Grant award may be utilized to develop the annual juvenile justice plan and pay for administrative expenses, including project monitoring. These funds are to be matched on a dollar for dollar basis. The State shall make available needed funds for planning and administration to units of local government on an equitable basis. Each annual application must identify uses of such funds. (e) Nonparticipating States. Pursuant to section 223(d), the OJJDP Administrator shall endeavor to make the fund allotment under section 222(a), of a State which chooses not to participate or loses its eligibility to participate in the formula grant program, directly available to local public and private nonprofit agencies within the nonparticipating State. The funds may be used only for the purpose(s) of achieving deinstitutionalization of status offenders and nonoffenders, separation of juveniles from incarcerated adults, removal of juveniles from adult jails and lockups, and/or reducing the disproportionate confinement of minority youth in secure facilities. Absent a request for extension which demonstrates compelling circumstances justifying the reallocation of formula grant funds back to the State to which the funds were initially allocated, or the pendency of administrative hearing proceedings under section 223(d), formula grant funds allocated to a State which has failed to submit an application, plan, or monitoring data establishing its eligibility for the funds will, beginning with Fiscal Year 1994, be reallocated to the nonparticipating State program on September 30 of the fiscal year for which the funds were appropriated. Reallocated funds will be awarded to eligible recipients pursuant to program announcements published in the Federal Register. 7. Section 31.302 (a) and (b)(2) is amended to read as follows: Sec. 31.302 Applicant State agency. (a) Pursuant to section 223(a)(1), section 223(a)(2) and section 299(c) of the JJDP Act, the State must assure that the State agency approved under section 299(c) has been designated as the sole agency for supervising the preparation and administration of the plan and has the authority to implement the plan. (b) * * * (2) Should consider in meeting the statutory membership requirements and responsibilities of section 223(a)(3) (A)-(E), appointing at least one member who represents each of the following: a locally elected official representing general purpose local government; a law enforcement officer; a juvenile or family court judge; a probation officer; a juvenile corrections official; a prosecutor; a representative from an organization, such as a parents group, concerned with teenage drug and alcohol abuse; a high school principal; a recreation director; a volunteer who works with delinquent or at risk youth; a person with a special focus on the family; a youth worker experienced with programs that offer alternatives to incarceration; persons with special competence in addressing programs of school violence and vandalism and alternatives to expulsion and suspension; and, persons with special knowledge concerning learning disabilities, child abuse, neglect and youth violence. 8. Section 31.303 (a) and (b) is revised to read as follows: Sec. 31.303 Assurances. (a) Assurances. The State must certify through the provision of assurances that it has complied and will comply (as appropriate) with section 223(a) (1), (2), (3), (4), (5), (6), (7), (8)(c), (9), (10), (11), (16), (17), (18), (19), (20), (21), (22), and (25), and sections 229 and 261(d), in formulating and implementing the State plan. The Formula Grant Application kit provides a form and guidance for the provision of assurances. OJJDP interprets the 223(a)(16) assurance as satisfied by an affirmation that State law and/or policy clearly require equitable treatment on the required bases; or by providing in the State plan that the State agency will require an assurance of equitable treatment by all Formula Grant subgrant and contract recipients, and establish as a program goal, in conjunction with the State Advisory Group, the adoption and implementation of a statewide juvenile justice policy that all youth in the juvenile justice system will be treated equitably without regard to gender, race, family income, and mentally, emotionally, or physically handicapping conditions. OJJDP interprets the 223(a)(25) assurance as satisfied by a provision in the State plan for the State agency and the State Advisory Group to promulgate policies and budget priorities that require the funding of programs that are part of a comprehensive and coordinated community system of services as set forth in section 103(19) of the JJDP Act. This requirement is applicable when a State's formula grant for any fiscal year exceeds 105 percent of the State's formula grant for Fiscal Year 1992. (b) Serious juvenile offender emphasis. Pursuant to sections 101(a)(10) and 223(a)(10) of the JJDP Act, the Office encourages States that have identified serious and violent juvenile offenders as a priority problem to allocate formula grant funds to programs designed for serious and violent juvenile offenders at a level consistent with the extent of the problem as identified through the State planning process. Particular attention should be given to improving prosecution, sentencing procedures, providing resources necessary for informed dispositions, providing for effective rehabilitation, and facilitating the coordination of services between the juvenile justice and criminal justice systems. * * * * * 9. Section 31.301 is amended by revising paragraph (c)(3) to read as follows: Sec. 31.301 Federal Wards. (c) * * * (3) Apply this requirement to alien juveniles under Federal jurisdiction who are held in State or local facilities. * * * * * 10. Section 31.303 is amended by revising paragraph (c)(4) to read as follows: Sec. 31.303 DSO Compliance. (c) * * * (4) Those States which, based upon the most recently submitted monitoring report, have been found to be in full compliance with section 223(a)(12)(A) may, in lieu of addressing paragraphs (c) (1) and (2) of this section, provide an assurance that adequate plans and resources are available to maintain full compliance. * * * * * 11. Section 31.303 is amended by revising paragraphs (d)(1) (i) and (ii) to read as follows: Section Sec. 31.303 Separation (d) * * * (1) * * * (i) Describe its plan and procedure, covering the three-year planning cycle, for assuring that the requirements of this section are met. The term ``contact'' is defined to include any sight and sound contact between juveniles in a secure custody status and incarcerated adults, including inmate trustees. Sound contact is further defined to mean that no conversation is possible. Separation must be accomplished in all secure areas of the facility which include, but are not limited to: sallyports within the secure perimeter of the facility, other entry areas, all passageways (hallways), admissions, sleeping, toilet and shower, dining, recreational, educational, vocational, health care, and other areas as appropriate. (ii) In those instances where accused juvenile criminal-type offenders are authorized to be temporarily detained in facilities where adults are confined, the State must set forth the procedures for assuring no sight or sound contact between such juveniles and confined adults. * * * * * 12. Paragraph (d)(2) of Sec. 31.303 is amended by adding a period ``.'' after the word ``State'' and removing the remainder of paragraph (d)(2). 13. Paragraph (e)(3) in Sec. 31.303 is revised to read as follows: Sec. 31.303 Collocated Facilities. (e) * * * (3)(i) Determine whether or not a facility in which juveniles are detained or confined is an adult jail or lockup. In circumstances where juveniles are detained or confined in a separate building within a justice center or building complex which includes both juvenile and adult facilities (same grounds) or in a separate juvenile area (floor, wing, or side) of a building which includes an adult jail or lockup (same building), the separate building or area in which juveniles are detained or confined may qualify as a juvenile detention facility. However, except when a collocated building or area within a building has previously been determined by the State (with OJJDP concurrence) to qualify as a separate juvenile detention facility under the four established requirements prior to the effective date of this proposed regulation, State determinations and OJJDP concurrence on collocated facilities will be limited to those which are located in geographic areas outside a Standard Metropolitan Statistical Area, and are operational or planned such that a determination of compliance with the criteria can be made, and are determined by the State (with subsequent OJJDP concurrence) to meet the criteria and procedure established in paragraph (e)(3)(i) (A) through (D) and (ii) of this section, no later than December 31, 1994. Each of the following four criteria must be met in order to ensure the requisite separateness of the two facilities. The requirements are: (A) Total separation between juvenile and adult facility spatial areas such that there could be no contact between juveniles and adult residents in the respective facilities. Total separation in spatial areas of juvenile and adult facilities can be achieved by providing for no common use areas, or by time-phasing common use areas, provided that the arrangement precludes contact between juveniles and adult residents and adult facility staff at all times. Sleeping or other living areas may not be considered common use areas. (B) Total separation in all juvenile and adult program activities within the facilities, including recreation, education, counseling, health care, dining, sleeping, and general living activities. There must be an independent and comprehensive operational plan for the juvenile detention facility which provides for a full range of separate program activities. No program activities may be shared by juvenile and adult residents. However, program space, equipment, and other resources may be used by both facility populations subject to the criterion in paragraph (e)(3)(i)(A) of this section. (C) Separate juvenile and adult staff, including management, security staff, and direct care staff such as recreation, education, and counseling. Specialized services staff, such as cooks, bookkeepers and medical professionals who are not normally in contact with detainees or whose infrequent contacts occur under conditions of separation of juveniles and adults, can serve both. The day to day management, security and direct care functions of the juvenile detention facility and its programs must be vested in totally separate staff. Collocated facilities classified by the State with subsequent OJJDP concurrence prior to the effective date of this proposed regulation must also meet this requirement. (D) In States that have established State standards or licensing requirements for secure juvenile detention facilities, the juvenile facility meets the standards (on the same basis as free-standing juvenile detention facilities) and is licensed as appropriate. Responsible State authorities must certify that all State standards or licensing requirements for a secure juvenile detention facility have been met, and that the architectural and operational configuration of the juvenile facility assures total separation. (ii) The State must initially determine that the four requirements are fully met. Upon such determination, the State must submit to OJJDP a request to concur with the State finding that a separate juvenile facility exists. To enable OJJDP to assess the separateness of the two facilities, sufficient documentation must accompany the request to demonstrate that each requirement is met. In assessing the separateness of the two facilities pursuant to a State's request for OJJDP concurrence, OJJDP will be guided by the ``rule of reason.'' If a facility is, in fact, a separate and distinct living environment for juveniles in secure custody, and not simply a juvenile wing, section, or area of an adult jail or lockup, a reasoned and reasonable application of the criteria will result in OJJDP's concurrence that a separate juvenile detention facility exists. It is incumbent upon each State to make the initial determination through an on-site facility (or full plan) review and, through the exercise of its oversight responsibility, to insure that the separate character of the facility is maintained by continuing to fully meet each of the four criteria in the operation of the juvenile detention facility. * * * * * 14. Paragraph (e)(4) in Sec. 31.303 is removed and paragraph (e)(5) is redesignated as paragraph (e)(4) and revised to read as follows: Sec. 31.303 Jail Removal Compliance. (e) * * * (4) Those States which, based upon the most recently submitted monitoring report, have been found to be in full compliance with section 223(a)(14) may, in lieu of addressing paragraphs (e) (1) and (2) of this section, provide an assurance that adequate plans and resources are available to maintain full compliance. 15. In Sec. 31.303, Paragraph (f)(1) introductory text is revised to read as follows: Sec. 31.303 Compliance Monitoring. (f) * * * (1) Pursuant to section 223(a)(15) of the JJDP Act, the State shall: * * * * * 16. Paragraph (f)(3)(i) in Sec. 31.303 is amended by adding the following to the end of the paragraph: Sec. 31.303 Valid Court Order. (f) * * * (3) * * * (i) * * * Prior to issuance of the order, the juvenile must have received the full due process rights guaranteed by the Constitution of the United States. * * * * * 17. Paragraph (f)(3)(iv) in Sec. 31.303 is amended by revising the last sentence thereof to read as follows: Sec. 31.303 Valid Court Order. (f) * * * (3) * * * (iv) * * * A juvenile alleged or found in a violation hearing to have violated a valid court order may be held only in a secure juvenile detention or correctional facility, and not in an adult jail or lockup. * * * * * 18. Paragraph (f)(3)(vi) in Sec. 31.303 is amended by adding the following to the end of the paragraph: Sec. 31.303 Valid Court Order. (f) * * * (3) * * * (vi) * * * This determination must be informed by a written report, to the judge, that: reviews the behavior of the juvenile and the circumstances under which the juvenile was brought before the court and made subject to such order; determines the reasons for the juvenile's behavior; and determines whether all dispositions other than secure confinement have been exhausted or are clearly inappropriate. This report must be prepared and submitted by a public agency or organization other than a court or law enforcement agency. A multidisciplinary review team that operates independently of courts or law enforcement agencies would satisfy this requirement even if some individual members of the team represented court or law enforcement agencies. * * * * * 19. Paragraph (f)(4)(vi) in Sec. 31.303 is revised to read as follows: Sec. 31.303 Rural Area. (f) * * * (4) * * * (vi) Pursuant to section 223(a)(14) of the JJDP Act, the non-MSA (low population density) exception to the jail and lockup removal requirement as described in paragraphs (f)(4) (i) through (v) of this section shall remain in effect through 1997, and shall allow for secure custody beyond the 24 hour period described in paragraph (f)(4)(i) of this section when the facility is located where conditions of distance to be traveled or the lack of highway, road, or other ground transportation do not allow for court appearances within 24 hours, so that a brief (not to exceed an additional 48 hours) delay is excusable; or the facility is located where conditions of safety exist (such as severely adverse, life-threatening weather conditions that do not allow for reasonably safe travel), in which case the time for an appearance may be delayed until 24 hours after the time that such conditions allow for reasonably safe travel. States may use these additional statutory allowances only where the precedent requirements set forth in paragraphs (f)(4) (i) through (v) of this section have been complied with. This may necessitate statutory or judicial (court rule or opinion) relief within the State from the 24 hour initial court appearance standard required by paragraph (f)(4)(i) of this section. States must document and describe in their annual monitoring report to OJJDP, the specific circumstances surrounding each individual use of the distance/ground transportation, and weather allowances. * * * * * 20. Paragraph (f)(5) in Sec. 31.303 is revised to read as follows: Sec. 31.303 Monitoring Report. (f) * * * (5) Reporting Requirement. The State shall report annually to the Administrator of OJJDP on the results of monitoring for section 223(a) (12), (13), and (14) of the JJDP Act. The reporting period should provide 12 months of data, but shall not be less than six months. The report shall be submitted to the Administrator of OJJDP by December 31 of each year. (i) To demonstrate compliance with section 223(a)(12)(A) of the JJDP Act, the report must include, at a minimum, the following information for the current reporting period: (A) Dates covered by the current reporting period. (B) Total number of public and private secure detention and correctional facilities, the total number reporting, and the number inspected on-site. (C) The total number of accused status offenders and nonoffenders, including out-of-state runaways and Federal wards, held in any secure detention or correctional facility for longer than 24 hours (not including weekends or holidays), excluding those held pursuant to the valid court order provision as set forth in paragraph (f)(3) of this section. (D) The total number of accused status offenders and nonoffenders, including out-of-state runaways and Federal wards, held in any secure detention or correctional facility for less than 24 hours for purposes other than identification, investigation, release to parent(s), or transfer to a nonsecure facility. (E) The total number of accused status offenders (including valid court order violations) and nonoffenders securely detained in any adult jail, lockup, or nonapproved collocated facility for less than 24 hours. (F) The total number of adjudicated status offenders and nonoffenders, including out-of-state runaways and Federal wards, held for any length of time in a secure detention or correctional facility, excluding those held pursuant to the valid court order provision. (G) The total number of status offenders held in any secure detention or correctional facility pursuant to the valid court order provision set forth in paragraph (f)(3) of this section. (ii) To demonstrate the extent to which the provisions of section 223(a)(12)(B) of the JJDP Act are being met, the report must include the total number of accused and adjudicated status offenders and nonoffenders placed in facilities that are: (A) Not near their home community; (B) Not the least restrictive appropriate alternative; and (C) Not community-based. (iii) To demonstrate the extent of compliance with section 223(a)(13) of the JJDP Act, the report must include, at a minimum, the following information for the current reporting period: (A) Dates covered by the current reporting period. (B) The total number of facilities used to detain or confine both juvenile offenders and adult criminal offenders during the past 12 months AND the number inspected on-site. (C) The total number of facilities used for secure detention and confinement of both juvenile offenders and adult criminal offenders which did not provide sight and sound separation. (D) The total number of juvenile offenders and nonoffenders NOT separated in facilities used for the secure detention and confinement of both juveniles and adults. (E) The total number of juvenile detention centers located within the same building or on the same grounds as an adult jail or lockup that have been concurred with by OJJDP, including a list of such facilities. (F) The total number of juveniles detained in collocated facilities concurred with by OJJDP, that were not separated from the security or direct care staff of the adult portion of the facility. (G) The total number of juvenile detention centers located within the same building or on the same grounds as an adult jail or lockup that have not been concurred with by OJJDP, including a list of such facilities. (H) The total number of juveniles detained in collocated facilities not approved by the State and concurred with by OJJDP, that were not sight and sound separated from adult criminal offenders. (iv) To demonstrate the extent of compliance with section 223(a)(14) of the JJDP Act, the report must include, at a minimum, include the following information for the current reporting period: (A) Dates covered by the current reporting period. (B) The total number of adult jails in the State AND the number inspected on-site. (C) The total number of adult lockups in the State AND the number inspected on-site. (D) The total number of adult jails holding juveniles during the past twelve months. (E) The total number of adult lockups holding juveniles during the past twelve months. (F) The total number of accused juvenile criminal-type offenders held securely in adult jails, lockups, and collocated facilities not concurred with by OJJDP, in excess of six hours. (G) The total number of accused juvenile criminal-type offenders held securely in adult jails, lockups, and collocated facilities not concurred with by OJJDP, for less than six hours for purposes other than identification, investigation, processing, release to parent(s), or transfer to a juvenile facility. (H) The total number of adjudicated juvenile criminal-type offenders held securely in adult jails, lockups and collocated facilities not concurred with by OJJDP, for any length of time. (I) The total number of accused and adjudicated status offenders (including valid court order violators) and nonoffenders held securely in adult jails, lockups and collocated facilities not approved by the State and concurred with by OJJDP, for any length of time. (J) The total number of adult jails, lockups and collocated facilities not concurred with by OJJDP, in areas meeting the ``removal exception'' as noted in paragraph (f)(4) of this section, including a list of such facilities and the county or jurisdiction in which each is located. (K) The total number of juveniles accused of a criminal-type offense who were held in excess of six hours but less than 24 hours in adult jails, lockups and collocated facilities not approved by the State and concurred with by OJJDP, in areas meeting the ``removal exception'' as noted in paragraph (f)(4) of this section. (L) The total number of juveniles accused of a criminal-type offense who were held in excess of 24 hours in adult jails, lockups and collocated facilities not approved by the State and concurred with by OJJDP, in areas meeting the ``removal exception'' as noted in paragraph (f)(4) of this section, due to conditions of distance or lack of ground transportation. (M) The total number of juveniles accused of a criminal-type offense who were held in excess of 24 hours in adult jails, lockups and collocated facilities not concurred with by OJJDP, in areas meeting the ``removal exception'' as noted in paragraph (f)(4) of this section, due to adverse weather conditions. * * * * * 21. Paragraph (f)(6) introductory text in Sec. 31.303 is revised to read as follows: Sec. 31.303 Funding Eligibility. (f) * * * (6) Compliance. The State must demonstrate the extent to which the requirements of section 223(a) (12)(A), (13), (14), and (23) of the Act are met. If the State fails to demonstrate full compliance with section 223(a) (12)(A) and (14), and compliance with (13) and (23) by the end of the fiscal year for any fiscal year beginning with 1994, the State's allotment under section 222 will be reduced by 25% for each such failure, provided that the State will lose its eligibility for any allotment unless: the State agrees to expend all remaining funds (except planning and administration, State advisory group set-aside funds and Indian tribe pass-through funds) for the purpose of achieving compliance with the mandate(s) for which the State is in noncompliance; or the Administrator makes a discretionary determination that the State has substantially complied with the mandate(s) for which there is noncompliance and that the State has made an unequivocal commitment to achieving full compliance within a reasonable time. Where a State's allocation is reduced, the amount available for planning and administration and the required pass-through allocation, other than State advisory group set-aside, will be reduced because they are based on the reduced allocation. * * * * * 22. Paragraph (f)(6)(i) in Sec. 31.303 is revised to read as follows: Sec. 31.303 DSO Substantial Compliance. (f) * * * (6) * * * (i) Substantial compliance with section 223(a)(12)(A) can be used to demonstrate eligibility for FY 1993 and prior year formula grant allocations if, within three years of initial plan submission, the State has achieved a 75% reduction in the aggregate number of status offenders and nonoffenders held in secure detention or correctional facilities, or removal of 100% of such juveniles from secure correctional facilities only. In addition, the State must make an unequivocal commitment, through appropriate executive or legislative action, to achieving full compliance by Fiscal Year 1994. Full compliance is achieved when a State has removed 100% of such juveniles from secure detention and correctional facilities or can demonstrate full compliance with de minimis exceptions pursuant to the policy criteria contained in the Federal Register of January 9, 1981 (46 FR 2566-2569). * * * * * 23. Paragraph (f)(6)(iii)(A) in Sec. 31.303 is removed and paragraphs (f)(6)(iii) (B), (C), (D), and (E), thereof are redesignated as paragraphs (f)(6)(iii) (A), (B), (C), and (D), respectively. 24. Newly designated paragraph (f)(6)(iii)(C) in Sec. 31.303 is revised to read as follows: Sec. 31.303 Jail Removal Waiver. (f) * * * (6) * * * (iii) * * * (C) Waiver. Failure to achieve full compliance as defined in this section shall terminate any State's eligibility for FY 1993 and prior year formula grant funds unless the Administrator of OJJDP waives termination of the State's eligibility. In order to be eligible for this waiver of termination, a State must request a waiver and demonstrate that it meets the standards set forth in paragraph (f)(6)(iii)(C) (1) through (7) of this section: (1) Agrees to expend all of its Formula Grant award except planning and administration, advisory group set-aside, and Indian tribe pass- through funds, to achieve compliance with section 223(a)(14); and (2) Removed all status and nonoffender juveniles from adult jails and lockups. Compliance with this standard requires that the last submitted monitoring report demonstrate that no status offender (including those accused of or adjudicated for violating a valid court order) or nonoffender juveniles were securely detained in adult jails or lockups for any length of time; or, that all status offenders and nonoffenders securely detained in adult jails and lockups for any length of time were held in violation of an enforceable State law and did not constitute a pattern or practice within the State; or, the number of status offenders and nonoffenders securely detained in adult jails and lockups is less than 9 per 100,000 juvenile population in the State; and (3) Made meaningful progress in removing juvenile criminal-type offenders from adult jails and lockups. Compliance with this standard requires the State to document a significant reduction in the number of jurisdictions securely detaining juvenile criminal-type offenders in violation of section 223(a)(14) of the JJDP Act; or, a significant reduction in the number of facilities securely detaining such juveniles; or, a significant reduction in the average length of time each juvenile criminal-type offender is securely detained in an adult jail or lockup; or, that State legislation has recently been enacted and taken effect and which the State demonstrates will significantly impact the secure detention of juvenile criminal-type offenders in adult jails and lockups; and (4) Diligently carried out the State's jail and lockup removal plan approved by OJJDP. Compliance with this standard requires that actions have been undertaken to achieve the State's jail and lockup removal goals and objectives within approved timelines, and that the State advisory group, required by section 223(a)(3) of the JJDP Act, has maintained an appropriate involvement in developing and/or implementing the State's plan; and (5) Submitted an acceptable plan, based on an assessment of current jail and lockup removal barriers within the State, to eliminate noncompliant incidents; and (6) Achieved compliance with section 223(a)(15) of the JJDP Act; and (7) Demonstrates an unequivocal commitment, through appropriate executive or legislative action, to achieving full compliance. * * * * * 25. Newly designated paragraph (f)(6)(iii)(D) in Sec. 31.301 is revised to read as follows: Sec. 31.303 Jail Removal Waiver. (f) * * * (6) * * * (iii) * * * (D) Waiver Maximum. A State may receive a waiver of termination of eligibility from the Administrator under paragraph (f)(6)(iii)(C) of this section for a combined maximum of four Formula Grant awards through Fiscal Year 1993. No additional waivers will be granted. * * * * * 26. Paragraph (f)(7) in Sec. 31.303 is revised to read as follows: Sec. 31.303 Monitoring Report Exemption. (f) * * * (7) Monitoring Report Exemptions. States which have been determined by the OJJDP Administrator to have achieved full compliance with sections 223(a)(12)(A) and 223(a)(14), and compliance with section 223(a)(13) of the JJDP Act and wish to be exempted from the annual monitoring report requirements must submit a written request to the OJJDP Administrator which demonstrates that: (i) The State provides for an adequate system of monitoring jails, law enforcement lockups, detention facilities, correctional facilities, and nonsecure facilities to enable an annual determination of State compliance with sections 223(a) (12)(A), (13), and (14) of the JJDP Act; (ii) State legislation has been enacted which conforms to the requirements of sections 223(a) (12)(A), (13), and (14) of the JJDP Act; and (iii) The enforcement of the legislation is statutorily or administratively prescribed, specifically providing that: (A) Authority for enforcement of the statute is assigned; (B) Time frames for monitoring compliance with the statute are specified; and (C) Adequate procedures are set forth for enforcement of the statute and the imposition of sanctions for violations. * * * * * 27. Paragraph (g) introductory text in Sec. 31.303 is revised to read as follows: Sec. 31.303 Crime Analysis. (g) Juvenile Crime Analysis. Pursuant to section 223(a)(8), the State must conduct an analysis of juvenile crime problems, including juvenile gangs that commit crimes, and juvenile justice and delinquency prevention needs within the State, including those geographical areas in which an Indian tribe performs law enforcement functions. The analysis and needs assessment must include educational needs, gender specific services, delinquency prevention and treatment services in rural areas, and mental health services available to juveniles in the juvenile justice system. The analysis should discuss barriers to accessing services and provide a plan to provide such services where needed. * * * * * 28. Paragraph (h) in Sec. 31.303 is amended by adding the following sentence at the end thereof: Sec. 31.303 Performance Report. (h) * * * The annual performance report must be submitted to OJJDP no later than June 30 and address all formula grant activities carried out during the previous complete calendar year, federal fiscal year, or State fiscal year for which information is available, regardless of which year's formula grant funds were used to support the activities being reported on, e.g., during a reporting period, activities may have been funded from two or more formula grant awards. * * * * * 29. Paragraph (j) in Sec. 31.303 is revised to read as follows: Sec. 31.303 Disproportionate Minority Confinement. (j) Minority Detention and Confinement. Pursuant to section 223(a)(23) of the JJDP Act, States must demonstrate specific efforts to reduce the proportion of juveniles detained or confined in secure detention facilities, secure correctional facilities, jails and lockups who are members of minority groups if such proportion exceeds the proportion such groups represent in the general population, viz., in most States, youth between 10-17 are subject to secure custody. It is essential that States approach this statutory mandate in a comprehensive manner. Compliance with this provision is achieved when a State meets the requirements set forth in paragraphs (1) through (3) of this section: (1) Identification. Provide quantifiable documentation (State, county and local level) in the State's FY 1994 Formula Grant Plan (and all subsequent Multi-Year Plans) Juvenile Crime Analysis and Needs Assessment to determine whether minority juveniles are disproportionately detained or confined in secure detention and correctional facilities, jails and lockups in relation to their proportion of the State juvenile population. Guidelines are provided in the OJJDP Disproportionate Minority Confinement Technical Assistance Manual (see Phase I Matrix). Where quantifiable documentation is not available to determine if disproportionate minority confinement exists in secure detention and correctional facilities, jails and lockups, the State must provide a time-limited plan of action, not to exceed six months, for developing and implementing a system for the ongoing collection, analysis and dissemination of information regarding minorities for those facilities where documentation does not exist. (2) Assessment. Each State's FY 1994 Formula Grant Plan must provide a completed assessment of disproportionate minority confinement. Assessments must, at minimum, identify and explain differences in arrest, diversion and adjudication rates, court dispositions other than incarceration, the rates and periods of prehearing detention in and dispositional commitments to secure facilities of minority youth and non-minority youth in the juvenile justice system, and transfers to adult court (see Phase II Matrix). If a completed assessment is not available, the State must submit a time- limited plan (not to exceed 12 months from submission of the Formula Grant Application) for completing the assessment. (3) Intervention. Each State's FY 1995 Formula Grant Plan must, where disproportionate confinement has been demonstrated, provide a time-limited plan of action for reducing the disproportionate confinement of minority juveniles in secure facilities. The intervention plan shall be based on the results of the assessment, and must include, but not be limited to the following: (i) Diversion. Increasing the availability and improving the quality of diversion programs for minorities who come in contact with the juvenile justice system, such as police diversion programs; (ii) Prevention. Providing developmental, operational, and assessment assistance (financial and/or technical) for prevention programs in communities with a high percentage of minority residents with emphasis upon support for community-based organizations (including non-traditional organizations) that serve minority youth; (iii) Reintegration. Providing developmental, operational, and assessment assistance (financial and/or technical) for programs designed to reduce recidivism by facilitating the reintegration of minority youth in the community following release from dispositional commitments to reduce recidivism; (iv) Policies and Procedures. Providing financial and/or technical assistance that addresses necessary changes in statewide and local, executive, judicial, and legal representation policies and procedures. (v) Staffing and Training: Providing financial and/or technical assistance that addresses staffing and training needs that will positively impact the disproportionate confinement of minority youth in secure facilities. (4) The time-limited plans of action set forth in paragraphs (j) (1), (2) and (3) of this section must include a clear indication of current and future barriers; which agencies, organizations, or individual(s) will be responsible for taking what specific actions; when; and what the anticipated outcomes are. The interim and final outcomes from implementation of the time-limited plan of action must be reported in each State's Multi-Year Plans and Annual Plan Updates. Final outcomes for individual project awards are to be included with each State's annual performance report [paragraph (h) of this section]. (5) Technical assistance is available through the OJJDP Technical Assistance Contract to help guide States with the data collection and analysis, and with programmatic elements of this requirement. Information from the OJJDP Special Emphasis Initiative on Disproportionate Minority Confinement pilot sites will be disseminated as it becomes available. (6) For purposes of this statutory mandate, minority populations are defined as: African Americans, American Indians, Asians, Pacific Islanders, and Hispanics. * * * * * 30. Section 31.403 is revised to read as follows: Sec. 31.403 Other Requirements. The State assures that it will comply, and that subgrantees and contractors will comply, with all applicable Federal non-discrimination requirements, including: (a) Section 809(c) of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, and made applicable by section 299A of the Juvenile Justice and Delinquency Prevention Act of 1974, as amended; (b) Title VI of the Civil Rights Act of 1964, as amended; (c) Section 504 of the Rehabilitation Act of 1973, as amended; (d) Title IX of the Education Amendments of 1972; (e) The Age Discrimination Act of 1975; (f) The Department of Justice NonDiscrimination regulations, 28 CFR part 42, subparts C, D, E and G; (g) The Department of Justice regulations on disability discrimination, 28 CFR part 35 and part 39; and (h) Subtitle A, Title II of the Americans with Disabilities Act (ADA) of 1990. John J. Wilson, Acting Administrator, Office of Juvenile Justice and Delinquency Prevention. [FR Doc. 94-17961 Filed 7-22-94; 8:45 am] BILLING CODE 4410-18-P