[Federal Register Volume 81, Number 152 (Monday, August 8, 2016)]
[Proposed Rules]
[Pages 52377-52388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18371]


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DEPARTMENT OF JUSTICE

Office of Justice Programs

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, Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office of Justice Programs (``OJP'') proposes to update 
the implementing regulation for the Formula Grant Program authorized by 
Title II, Part B, of the Juvenile Justice and Delinquency Prevention 
Act of 1974 (``the Act'' or ``JJDPA''). The purpose of the Formula 
Grant Program is to provide formula grant awards to states to support 
juvenile delinquency prevention programs and to improve their juvenile 
justice systems. The proposed rule would supersede the existing Formula 
Grant Program regulations to reflect changes in the 2002 JJDPA 
reauthorization as well as policy changes to the Formula Grant Program.

DATES: Comments must be received by no later than 11:59 p.m., E.T., on 
October 7, 2016.

ADDRESSES: You may view an electronic version of this proposed rule at 
http://www.regulations.gov, and you may also comment by using the 
www.regulations.gov form for this regulation. OJP welcomes comments 
from the public on this proposed rule and prefers to receive comments 
via www.regulations.gov when possible. When submitting comments 
electronically, you should include OJP Docket No. 1719 in the subject 
box. Additionally, comments may also be submitted via U.S. mail, to: 
Mr. Gregory Thompson, Senior Advisor, Office of Juvenile Justice and 
Delinquency Prevention, Office of Justice Programs, U.S. Department of 
Justice, 810 7th Street NW., Washington, DC 20531. To ensure proper 
handling, please reference OJP Docket No. 1719 on your correspondence.

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

SUPPLEMENTARY INFORMATION: 

I. Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you wish to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not wish for 
it to be posted online, you must include the phrase ``PERSONAL 
IDENTIFYING INFORMATION'' in the first paragraph of your comment. You 
must also locate all the personal identifying information you do not 
want posted online in the first paragraph of your comment and identify 
what information you want redacted.
    If you wish to submit confidential business information as part of 
your comment but do not wish it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the agency's public docket 
file, nor will it be posted online. If you wish to inspect the agency's 
public docket file in person by appointment, please see the ``For 
Further Information Contact'' paragraph.

II. Executive Summary

A. Purpose of the Proposed Regulatory Action

    Title II, Part B, of the JJDPA authorizes the Administrator of the 
Office of Juvenile Justice and Delinquency Prevention (OJJDP) to make 
formula grant awards to participating states to assist them in 
planning, establishing, operating, coordinating, and evaluating 
projects directly or through grants and contracts with public and 
private agencies for the development of more effective education, 
training, research, prevention, diversion, treatment, and 
rehabilitation programs in the area of juvenile delinquency and 
programs to improve the juvenile justice system. OJP proposes this rule 
pursuant to the rulemaking authority granted to the Administrator under 
42 U.S.C. 5611. The proposed rule would codify and update the existing 
regulation promulgated at 60 FR 21852 on May 31, 1995, and amended at 
61 FR 65132 on December 10, 1996 (the ``current regulation''), to 
reflect statutory changes included in the 2002 reauthorization of the 
JJDPA as well as changes in OJP policy regarding administration of the 
commonly-named Part B Formula Grant Program (Formula Grant Program).

B. Summary of the Major Provisions of the Proposed Regulatory Action

    As discussed more fully in section IV, below, the proposed rule 
contains the following major provisions that differ from the current 
regulation: (1) Establishing new substantial compliance standards in 
place of the current de minimis standards for determining states' 
compliance with the

[[Page 52378]]

deinstitutionalization of status offenders (DSO), (42 U.S.C. 
5633(a)(11)), separation (42 U.S.C. 5633(a)(12)), and jail removal (42 
U.S.C. 5633(a)(13) requirements; (2) codifying the requirement 
authorized under the Act at 42 U.S.C. 5633(a)(14) that states must 
annually submit compliance monitoring data from 100% of facilities that 
are required to report such data; (3) changing the compliance data 
reporting period to the federal fiscal year, as required by the Act at 
42 U.S.C. 5633(c); (4) providing a definition for the term ``detain or 
confine'' as used in the separation and jail removal requirements; and 
(5) providing a definition of ``placed or placement,'' as used in the 
DSO requirement.
    In addition, the proposed rule would eliminate portions of the 
current regulation that (1) are repetitive of statutory text, including 
definitions that are included in the Act at 42 U.S.C. 5603; (2) contain 
references to statutory, regulatory and other requirements that apply 
to all OJP grantees and that are found elsewhere (such as those 
described in the Uniform Administrative Requirements, Cost Principles, 
and Audit Requirements for Federal Awards, at 2 CFR part 200); (3) were 
rendered obsolete by the 2002 JJDPA reauthorization; (4) are 
recommendations, rather than requirements for compliance and will be 
included in OJJDP policy guidance; and (5) are included in the Formula 
Grant Program solicitation, and that need not be included in the rule.

C. Cost and Benefits

    Although it is difficult to quantify the financial cost that states 
would incur under the proposed rule, some of the proposed provisions 
would require states to dedicate additional time and resources to 
collecting, verifying, and reporting additional compliance monitoring 
data, using the on-line data collection tool that OJJDP will provide. 
In addition, the proposed new compliance standards may result in more 
states' being found out of compliance than would be out of compliance 
under the current standards. OJP discusses below some of the estimated 
costs to states of the proposed rule.
    Under the proposed new compliance standards for DSO, separation, 
and jail removal, forty-eight states, based on 2013 compliance data, 
would be out of compliance with one or more of these requirements. As a 
result, pursuant to the requirements of the JJDPA, these states would 
be required to expend 50% of their reduced allocation to achieve 
compliance with the core requirement(s) for which a determination of 
non-compliance was made. At least in the short term, less funding would 
be available to pass through to local entities, to provide programming 
and services for at-risk youth, and per capita spending for this 
population would be reduced. It should be noted however, that prior to 
the proposed compliance standards taking effect, OJJDP would provide 
targeted training and technical assistance to those states and 
localities that have been identified as experiencing issues impacting 
their ability to comply with all of the requirements of the JJDPA. 
Ultimately, the desired outcome would be that fewer at-risk youth would 
be placed or detained in juvenile facilities, resulting in reduced 
operational costs for the facilities, and redirecting these savings for 
additional programing and services for youth at their earliest 
involvement with the juvenile justice system.

III. Background

    OJJDP administers the Formula Grant Program, pursuant to Title II, 
part B, of the JJDPA, authorized at 42 U.S.C. 5631, et seq. The Formula 
Grant Program authorizes OJJDP to provide formula grants to states to 
assist them in planning, establishing, operating, coordinating, and 
evaluating projects directly or through grants and contracts with 
public and private agencies for the development of more effective 
education, training, research, prevention, diversion, treatment, and 
rehabilitation programs in the area of juvenile delinquency and 
programs to improve the juvenile justice system. ``State'' is defined 
in the JJDPA as ``any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands[.]'') (42 U.S.C. 5603(7)). The JJDPA was originally enacted in 
1974, authorizing the Formula Grant Program under Title II, Part B, and 
was reauthorized and amended in 1980, 1984, 1988, 1992, and 2002. With 
respect to the core requirements, the original Act addressed only the 
DSO and separation requirements. In 1980, the Act was amended to add 
the jail removal requirement. The 1988 amendments added the requirement 
that states address disproportionate minority confinement. When the Act 
was amended in 1992, the Formula Grant Program was amended to require 
that each state's formula grant funding would be reduced by 25% for 
each core requirement(s) with which it was determined to be out of 
compliance. In addition, a non-compliant state would be required to 
spend its remaining formula grant allocation for that year on achieving 
compliance with the core requirement(s) with which it was determined to 
be out of compliance. The 1992 JJDPA amendments also elevated the 
disproportionate minority confinement requirement to a core 
requirement, non-compliance with which would result in states' funding 
being reduced. The 2002 reauthorization decreased the amount of the 
reduction for non-compliance with each core requirement to 20%, and 
reduced to 50% the amount that states were required to spend to come 
into compliance with the core requirements; changed ``disproportionate 
minority confinement'' to ``disproportionate minority contact''; and 
added the requirement that states have in effect a policy that 
individuals who work with both juveniles and adult inmates be trained 
and certified to work with juveniles.
    These formula grant dollars fund programs that serve over 170,000 
at-risk youth per year and allow appropriate youth to stay in their 
communities rather than face secure detention. If detaining the youth 
is necessary, these funds can be used to ensure they are held pursuant 
to the core requirements of the JJDPA.
    The Formula Grant Program provides funds for services to youth 
across the juvenile justice continuum. Examples include diversion 
programs, delinquency and gang prevention programs, community-based 
programs and services, after-school programs, alternative-to-detention 
programs, programs to eliminate racial and ethnic disparities at all 
decision and contact points in the juvenile justice system, the 
provision of indigent defense services, and aftercare and reentry 
assistance. As noted in OJJDP's Annual Report, during FY 2014, the 
latest year for which data is available, a total of 173,340 youth 
participants were served in various programs funded by formula grants. 
Of that number, 86% of program youth exhibited a desired change in the 
targeted behavior in the short term. Targeted behaviors and risk 
factors included antisocial behavior, truancy, substance use, low self-
esteem, problematic family relationships, and other areas that need to 
be addressed to ensure positive youth development. Measures of long-
term outcomes also showed a positive trend--88% of program youth 
exhibited a desired change in the targeted behavior 6-12 months after 
leaving or completing the funded program. A significant number of 
grantees funded through formula grants report that they are 
implementing

[[Page 52379]]

evidenced-based programs or practices. In fact, during FY 2014, 42% of 
grantees and subgrantees implemented evidenced-based programs or 
practices.
    Unlike the many OJP grant programs that are discretionary in 
character, the Formula Grant program is a mandatory statutory formula 
program--that is, a statutory program, in the nature of an entitlement, 
where the amount of each grant, and the identity of each recipient, 
typically is determined using a statutorily-prescribed formula based 
(in this instance) on the relative number of individuals under age 
eighteen in the recipient jurisdiction's population, pursuant to the 
Act at 42 U.S.C. 5632(2). Under title II, part B, of the Act, OJJDP is 
required to make an award to each participating state, so long as the 
conditions established by law are met; once those conditions are met by 
a given state, a legal right to the grant (in the amount specified by 
the legal formula) is established, and OJJDP has no legal warrant to 
refuse to award it, or to award a lesser (or greater) amount.\1\
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    \1\ See, e.g., City of Los Angeles v. Coleman, 397 F. Supp. 547 
(D.D.C. 1975).
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    States receiving formula grant funding from OJJDP are obligated to 
follow the requirements in the Act. Among other provisions, the Act 
includes four ``core requirements,'' referred to as such because the 
Formula Grant Program funding that states receive is reduced by 20% for 
each of these requirements with which OJJDP determines the state to be 
non-compliant. These core requirements are deinstitutionalization of 
status offenders (DSO) (42 U.S.C. 5633(a)(11)), separation (42 U.S.C. 
5633(a)(12)), jail removal (42 U.S.C. 5633(a)(13)), and 
disproportionate minority contact (DMC) (42 U.S.C. 5633(a)(22)).
    The DSO requirement provides that status offenders and non-
offenders who are aliens or are alleged to be dependent, neglected, or 
abused, shall not be placed in secure detention or confinement. Status 
offenses are offenses that would not be a crime if committed by an 
adult, e.g., truancy, running away from home, and violating curfew.
    The separation requirement of the JJDPA provides that juveniles 
shall not be detained or confined such that they have sight or sound 
contact with adult inmates.
    The jail removal requirement of the JJDPA provides that (with 
limited exceptions) states may not detain or confine juveniles in adult 
jails or lockups.
    Finally, the DMC requirement provides that states must work to 
address, with the goal of reducing, the disproportionate number of 
juveniles within the juvenile justice system who are members of 
minority groups.
    The process used for establishing the compliance determination 
measure for the DSO requirement under the current regulation was to 
collect data regarding the number of instances of non-compliance with 
the DSO requirement for eight states in 1979 (two from each of the four 
Census Bureau regions), and data regarding the number of instances of 
non-compliance with the jail removal requirement for twelve states in 
1986 (three from each of the four Census Bureau regions). The states 
selected were those with the lowest rates of non-compliance per 100,000 
juvenile population that also had been identified as having an adequate 
system of monitoring for compliance. A detailed description of the 
process for developing the standard measures of compliance with the DSO 
requirement was published on January 9, 1981 (46 FR 2566), and the 
process for developing the standard measures for compliance with the 
jail removal requirement was published on November 2, 1988 (53 FR 
44370).
    Although compliance determinations for the DSO, separation, and 
jail removal requirements are based on specific numerical standards, 
this has not been the case for the DMC requirement. The JJDPA provides 
that states must ``address'' disproportionate minority contact, but 
does not provide specific guidance as to how states' compliance with 
the DMC requirement should be determined, other than to prohibit the 
use of numerical standards or quotas. In April 2013, the OJJDP 
Administrator determined that OJJDP's method for determining states' 
compliance with DMC warranted revisions to ensure that compliance 
determinations were based on a standard that was more consistent and 
objective. This proposed rule, along with the new DMC assessment tool, 
will result in more consistent and objective DMC compliance 
determinations.
    OJP's current Formula Grant Program regulation was published on May 
31, 1995, and amended on December 31, 1996. In 2002, the JJDPA was 
reauthorized. This proposed rule, when finalized, will supersede the 
regulation published in December 1996, reflecting the statutory changes 
enacted in the 2002 reauthorization to bring the regulation in line 
with the JJDPA. The proposed rule also reflects OJP policy changes, as 
outlined in section IV of this preamble.
    OJP invites and welcomes comments from states and territories, 
organizations, and individuals involved in youth development, juvenile 
justice, and delinquency prevention, as well as any other members of 
the interested public, on any aspects of this proposed rulemaking. All 
comments will be considered prior to publication of a final rule.

IV. Discussion of Changes Proposed in This Rulemaking

Proposed New Standards for Compliance With the DSO, Separation, and 
Jail Removal Requirements

    OJP proposes a significant change to the standards for determining 
compliance with the DSO, separation, and jail removal requirements. The 
standards for the DSO and separation requirements were established in 
1981, and the jail removal compliance standard was established in 1988. 
These standards are discussed in more detail below. In general, these 
standards provide that, depending upon a state's rate of non-compliance 
with the DSO, separation, or jail removal requirements, the state may 
still be determined to be in compliance if it demonstrates that it 
meets specific criteria, such as having recently enacted state laws 
that can reasonably be expected to prevent future instances of non-
compliance and an acceptable plan to prevent future instances of non-
compliance. These standards can be found in the current regulation at 
section 31.303(f)(6)(i) and 46 FR 2566 (January 9, 1981) (DSO), 
31.303(f)(6)(ii) (separation), and 31.303(f)(6)(iii) and 46 FR 44370 
(November 2, 1988) (jail removal).
    The principle of the de minimis standard, whereby something less 
than 100% compliance with statutory provisions is deemed sufficient, 
has long been accepted and applied in the context of interpreting 
federal statutes. 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 
statutes, even when Congress failed explicitly to provide for the 
rule.'')
    The proposed new standards would create numerical thresholds above 
which states are out of compliance, thereby allowing for more 
consistent, objective determinations of states' compliance with the 
DSO, separation, and jail removal requirements.
    OJP is proposing new terminology that would refer to a 
``substantial compliance'' test for measurement of compliance with 
these standards. Such a test would continue to encourage the 
elimination of all instances of non-

[[Page 52380]]

compliance but allow for a statistically inconsequential number of 
violations for the DSO and jail removal requirements without loss of 
Title II Part B funding to states. The new standard for compliance with 
the separation requirement would require that states have zero 
instances of non-compliance. OJP recognizes and commends the 
significant progress states have made in reducing instances of non-
compliance with the DSO, separation, and jail removal requirements 
since the standards for compliance were developed. For example, when 
comparing self-reported baseline data for these three standards 
compiled in the 1990s to data submitted covering calendar year 2013, 
the number of status offenders placed in secure correctional or secure 
detention facilities constituting instances of non-compliance with the 
DSO requirement has decreased by 99.9 percent, from 171,076 to 1,960; 
the number of juveniles detained or confined in institutions in which 
they have contact with adult inmates has decreased 99.9 percent, from 
81,810 to 59; and the number of juveniles detained or confined in adult 
jails or lockups constituting instances of non-compliance has decreased 
99.8 percent from 154,618 to 2,765. As a reflection of the continued 
progress over the past years made by states in improving compliance, 
the acceptable level of deviation allowable to remain in substantial 
compliance needs to be adjusted to reflect the new compliance reality.
    Accordingly, in order to ensure that the core requirements continue 
to protect the safety and well-being of juveniles and are reflective of 
states' significant progress since the enactment of the JJDPA, OJP is 
proposing to update the statistical measures of compliance with the 
DSO, separation, and jail removal requirements. The new compliance 
standard for the jail removal requirement would follow the same 
methodology originally used to develop the standard for compliance with 
that requirement. To align with the jail removal compliance 
determination standard, OJP is proposing to follow a similar 
methodological process to establish compliance determination standards 
for the separation and DSO core requirements. As with jail removal, OJP 
will use data from three states from each of the four Census Bureau 
regions. The states selected will be those with the lowest non-
compliance rates per 100,000 juvenile population, and which have also 
been determined to have an adequate compliance monitoring system.
    Although the methodology originally used to establish the 
compliance standards for DSO in 1979 involved using data from two 
states in each of the four Census Bureau Regions, OJJDP is proposing to 
align with the methodology that was used to establish the jail removal 
compliance standards in 1986, and which is also being used to establish 
the separation compliance standard, which uses data from three states 
in each of the Census Bureau regions.
    Following this methodology, and based on the compliance data from 
calendar year 2013, OJJDP is proposing that the substantial compliance 
rate for DSO be at or below 0.24. Using the lowest rates for three 
states in each of the Census Bureau regions would produce the following 
rates of compliance: Region I--Maine (0), New York (0), Pennsylvania 
(0.39); Region 2--Nebraska (0), Michigan (0.12), Iowa (0.69); Region 
Region 3--Delaware (0), Florida (0.51), Louisiana (0.59); and, Region 
4--Alaska (0), Nevada (0.30), and Hawaii (0.33). The average rate for 
these twelve states would be 0.24 per 100,000 juvenile population.
    Following the same process, using three states from each Census 
Bureau region for the jail removal requirement, the results would be as 
follows: Region 1--Maine (0), New York (0), Massachusetts (0.54); 
Region 2--North Dakota (0), South Dakota (0), Nebraska (0); Region 3--
District of Columbia (0), Texas (0.07), Georgia (0.19); and, Region 4--
Utah (0.23), Nevada (0.30) and Hawaii (0.33). The average rate for 
these twelve states would be 0.12 per 100,000 juvenile population.
    Applying the same methodology used for the DSO and jail removal 
requirements to the separation requirement (something not done 
previously), the result would be as follows: Region 1--Connecticut (0), 
Maine (0), New Hampshire (0); Region 2--Illinois (0), Indiana (0), Iowa 
(0); Region 3--Alabama (0), Kentucky (0), Louisiana (0); and, Region 
4--Arizona (0), California (0) and Colorado (0). Using this 
methodology, to be in compliance with the separation requirement, 
states would be required to report zero instances of non-compliance.
    Unlike the current de minimis standards, these new standards for 
the DSO and jail removal requirements would establish a numerical 
threshold at or below which states will be in compliance and above 
which states will be out of compliance. Under the current de minimis 
standard, states have been allowed to demonstrate compliance by meeting 
certain criteria depending upon their rate of non-compliance. With the 
new standard, states will automatically be in or out of compliance 
depending on their rate, without regard to such factors as whether the 
state has recently enacted laws designed to eliminate the instances of 
compliance, whether the instances constituted a pattern or practice, or 
any other factors. OJP will review these compliance determination 
standards at least every five years for possible revision.
    OJP welcomes comments on the methodology for setting the proposed 
standards for determining states' compliance with these three core 
requirements, which reflect one possible approach for determining 
compliance. OJP encourages suggestions for other possible methods for 
determining compliance with the core requirements.

Proposed Requirement That States Annually Report Compliance Data for 
100% of Facilities

    Section 31.7(4)(i) of the proposed rule would require that states 
provide compliance monitoring data for each federal fiscal year 
reporting period, for 100% of the facilities within the state that are 
required to report on compliance with the DSO, separation, and jail 
removal requirements. This would revise the standard under the current 
regulation that provides that states can submit a minimum of six months 
of data, and allows states to project, or annualize, that data to cover 
a twelve-month period. The new reporting requirement that states 
provide for 100% of facilities that are required to report will ensure 
that OJJDP can make a more accurate determination of whether each state 
has achieved compliance with these three core requirements. States' 
2013 Compliance Monitoring Reports include the percentage of facilities 
reporting data from the following five categories: Juvenile detention 
facilities, juvenile correctional facilities, adult jails, adult 
lockups, and collocated facilities. Thirty-three states and territories 
report data from 100% of all five categories of facilities; eleven 
states report data from at least 95% of each of the five categories of 
facilities; and eleven states and territories report data from less 
than 95% in at least one of the five categories of facilities. States 
may request that the Administrator grant a waiver, for good cause, of 
the provision that 100% of facilities must report.

[[Page 52381]]

Proposed Changes to the DMC Requirement

    In 1988, the Act was amended to require that all states 
participating in the Formula Grant Program address disproportionate 
minority confinement in their state plans. Specifically, the amendment 
required that if the proportion of a given group of minority youth 
detained or confined in secure detention facilities, secure 
correctional facilities, jails, and lockups exceeded the proportion 
that group represented in the general population, the state was 
required to develop and implement plans to reduce the disproportionate 
representation.
    The 1992 amendments to the JJDPA elevated disproportionate minority 
confinement to a core requirement, tying 25 percent of each state's 
Formula Grant allocation for that year to compliance with that 
requirement. The 2002 reauthorization of the JJDPA modified the DMC 
requirement to require all states that participate in the Formula Grant 
Program address ``juvenile delinquency prevention efforts and system 
improvement efforts designed to reduce, without establishing or 
requiring numerical standards or quotas, the disproportionate number of 
juvenile members of minority groups who come into contact with the 
juvenile justice system.'' This change broadened the requirement from 
disproportionate minority ``confinement'' to disproportionate minority 
``contact'' (DMC), to address the overrepresentation of minority youth 
at all stages of the juvenile justice system, not merely when such 
youth are subject to confinement. (In addition, in the 2002 
reauthorization, the reduction in funding for non-compliance with each 
of the core requirements was reduced from 25% to 20%.)
    The proposed rule reflects the change from ``disproportionate 
minority confinement'' to ``disproportionate minority contact'' in the 
JJDPA's 2002 reauthorization. In addition, the most significant change 
to DMC compliance in the proposed rule is the codification of the 5-
phase reduction model that OJJDP previously implemented and that states 
have already been using.
    Under proposed section 31.9(d), a state would be in compliance with 
DMC when it includes a DMC report within its state plan that contains a 
detailed description of adequate progress in implementing the 5-phase 
reduction model, which includes: (1) Identification of the extent to 
which DMC exists; (2) Assessment and comprehensive analysis to 
determine the significant factors contributing to DMC at each contact 
point; (3) Intervention strategies to reduce DMC; (4) Evaluation of the 
effectiveness of the delinquency prevention and system-improvement 
strategies; and (5) Monitoring to track changes in DMC statewide and in 
the local jurisdictions to determine whether there has been progress 
towards DMC reduction.
    This 5-phase reduction model which, as noted previously, states 
have already been using, would replace the provision in the current 
regulation, under which compliance with DMC is achieved when a state 
meets the following three requirements in its state plan: (1) 
Identification of whether DMC exists; (2) Assessment of DMC--including 
identification and explanation of differences in arrest, diversion, and 
adjudication rates; and (3) Intervention through a time-limited plan of 
action for reducing DMC, which must address diversion, prevention, 
reintegration, policies and procedures, and staffing and training. 28 
CFR 31.303(j).
    Proposed section 31.9(d)(1)(i) would codify the requirement 
implemented through OJJDP policy in 2003 that states use the Relative 
Rate Index to describe the extent to which minority youth are 
overrepresented in a state's juvenile justice system. The Relative Rate 
Index (RRI) is a method that involves comparing the relative volume 
(rate) of activity at each major stage of the juvenile justice system 
for minority youth with the volume of that activity for white 
(majority) youth. The RRI provides a single index number that indicates 
the extent to which the volume of that form of contact or activity 
differs for minority youth and white youth. In its simplest form, the 
RRI is the rate of activity involving minority youth divided by the 
rate of activity involving majority youth. (For additional and more 
detailed information regarding the use of the RRI, please refer to 
Chapter 1 of the DMC Technical Assistance Manual, 4th Edition, located 
on OJJDP's Web site at http://www.ojjdp.gov/compliance/dmc_ta_manual.pdf).
    Prior to 2013, OJJDP relied on the expertise of individual staff to 
identify the strengths and weaknesses of a state's plan and determine 
whether a state was in compliance with the DMC requirement. In 2013, 
OJJDP determined that the process it was using to determine DMC 
compliance was not sufficiently objective to ensure consistent 
determinations. Thus, beginning in September 2013, states received 
compliance determination letters indicating that they were not out of 
compliance with the DMC requirement. States have been strongly 
encouraged to prioritize and increase their efforts to eliminate 
systemic racial and ethnic disparities and to seek training and 
technical assistance from OJJDP to assist them with fully implementing 
the OJJDP DMC Reduction Model. OJJDP staff has continued to review 
states' DMC compliance plans with the goal of providing technical 
assistance to the states.
    In order to more effectively and objectively assess the extent to 
which states are in compliance with the DMC requirement, OJJDP is 
implementing internal standards to determine if states are adequately 
addressing DMC. To this end, OJJDP is developing a statistical tool--in 
consultation with three technical assistance grantees who are leading 
experts in the field of racial and ethnic disparities--that will assess 
states' progress in addressing DMC. States' responses to a set of 
objective questions addressing each of the phases in the 5-phase 
reduction model will result in a score that will inform OJJDP in 
determining states' compliance with the DMC requirement. The more 
objective tool will allow OJJDP to better assess states' efforts in 
addressing DMC, which will facilitate the provision of more effective 
technical assistant to states to assist them in reducing DMC. OJJDP 
will provide more information prior to implementation of the tool, 
which will be finalized by September 30, 2016.
    Through states' adherence to the 5-phase reduction model, and 
OJJDP's implementation of the objective assessment tool, the states and 
OJJDP will be in a better position to effectively address and reduce 
DMC where it exists.
    Proposed section 31.9(d)(1)(i) would also require that states 
obtain the Administrator's approval for the selection of the three 
local jurisdictions with the highest minority concentration or with 
focused DMC-reduction efforts, for which states must use the Relative 
Rate Index to determine whether--and the extent to which--DMC exists at 
the following contact points within the juvenile justice system: 
Arrest, diversion, referral to juvenile court, charges filed, placement 
in secure correctional facilities, placement in secure detention 
facilities, adjudication as delinquent, community supervision, and 
transfer to adult court.
    The proposed rule includes the following additional proposed 
changes to the DMC requirement: (1) Eliminating references to the 
``Phase I Matrix'' and to the ``Phase II Matrix'', which have been 
replaced with the 5-phase reduction model; (2) requiring that an

[[Page 52382]]

assessment and comprehensive analysis to determine the significant 
factors contributing to DMC at each contact point must be completed 
within twelve months of the identification of the existence of DMC 
(providing that the Administrator may grant an extension) (section 
31.9(d)(1)(ii)); (3) prescribing when an assessment and analysis of DMC 
must be conducted (section 31.9(d)(ii)); (4) adding a requirement that 
states conduct an evaluation within three to five years of the 
intervention required under section 31.9(d)(iii), of the effectiveness 
of the intervention (section 31.9(d)(1)(iv)); (5) adding a requirement 
that states monitor to track changes in DMC to identify emerging issues 
affecting DMC and to determine whether progress towards DMC reduction 
has been made (section 31.9(d)(1)(v)); (6) requiring states to provide 
a timetable for implementing a data collection system to track progress 
towards reduction of DMC, including, where DMC has been found to exist, 
a description of the prior-year's progress toward reducing DMC and an 
adequate DMC-reduction implementation plan (section 31.9(d)(1)(v)); (7) 
deleting the requirement that the intervention plan address diversion, 
prevention, reintegration, policies and procedures, and staffing and 
training; (8) changing the term ``minority populations'' to ``minority 
groups,'' to reflect the U.S. Census Bureau race and ethnicity 
categories, and including it in the definition section in section 31.2 
of the proposed rule; and (9) requiring that states report DMC data on 
the same federal fiscal year schedule on which they report compliance 
data for the DSO, separation, and jail removal requirements.

Compliance Reporting Period Changed to Federal Fiscal Year

    Proposed section 31.8 would change the reporting period for 
compliance monitoring data to the federal fiscal year, consistent with 
the JJDPA. Under 42 U.S.C. 5633(c), ``if a State fails to comply with 
[the core requirements] in any fiscal year . . . the amount allocated 
to such State . . . for the subsequent fiscal year beginning after 
September 30, 2001 . . . shall be reduced.'' (Emphasis added.) By its 
terms, this provision contemplates that the relevant period for 
determining compliance is the federal fiscal year. The fact that the 
statute specifically references the ``fiscal year beginning after 
September 30, 2001 . . .'' indicates that states were required to be in 
compliance for the federal fiscal year beginning on October 1, 2001, 
and that annually thereafter states' compliance would be evaluated 
based on data reported for each federal fiscal year.

Proposed Definitions

    Proposed section 31.2 would provide definitions for some terms that 
are used but not defined in the JJDPA, and for some terms that are used 
in the regulation itself. Notably, this proposed rule would add a 
definition of the term ``detain or confine'' that clarifies that the 
term includes non-secure detention--that is, a juvenile is detained 
when he is not free to leave, even though he is not securely detained 
within a locked room or cell, or by being handcuffed to a cuffing rail 
or bench. Under the current regulation, OJJDP has equated ``being 
`detained' or `confined' '' with ``being in `secure custody' ''; i.e., 
that ``detention'' (or ``confinement'') occurs whenever a juvenile is 
in ``secure custody,'' as that term is discussed in the current 
regulation at 28 CFR 31.303(d)(1)(i)--and only when in such ``secure 
custody.'' Under that guidance, a juvenile who merely entered a 
building with a secure perimeter pursuant to public authority would be, 
thereby, in ``secure custody'' and therefore ``detained or confined,'' 
regardless of whether he was free to leave (and even if he knew he was 
free to leave); conversely, however, a juvenile whose hands were 
handcuffed behind his back by the police, who was told by police 
officers that he was not free to leave their presence, and who was 
physically prevented from leaving their presence by armed guards would 
be, according to OJJDP guidance, not ``detained or confined'' because 
he is not in what OJJDP has defined as ``secure custody.''
    Within the contemplation of the law, however, in the ordinary 
course, the plain meaning of ``detain'' requires, at a minimum, that 
the person allegedly detained not be free to leave. Fourth Amendment 
jurisprudence, which equates detention with the ``seizure'' of a person 
by a government or its agents, supports this understanding of the term. 
Generally speaking, a person is detained, or ``seized'' within the 
meaning of the Fourth Amendment, if, by means of physical force or show 
of authority, in view of all the circumstances surrounding the 
incident, a reasonable person would believe that he was not free to 
leave; conversely, if, in view of all the circumstances surrounding the 
incident, a reasonable person would believe that he is free to leave, 
he is not being detained. U.S. v. Mendenhall, 446 U.S. 544, 554-555 
(1980). For this reason, the proposed rule would clarify that a 
juvenile is detained or confined when he is not free to leave, 
regardless of whether he is held securely or non-securely.
    The proposed definition of ``detain or confine'' includes a 
rebuttable presumption that a juvenile is not detained or confined when 
his parent or legal guardian acknowledges in writing that he is free to 
leave. This does not create a requirement that such acknowledgment be 
in writing, but rather creates a presumption that the juvenile knew 
that he was free to leave, which may also be demonstrated in other 
ways, such as through a video recording of the juvenile's 
acknowledgment that he knows that he is free to leave.
    The proposed rule also would add a definition of ``placed or 
placement'' such that that occurs only when a status offender or a non-
offender who is an alien or is alleged to be dependent, neglected, or 
abused, is detained or confined for a period of 24 hours or longer in a 
secure juvenile detention or correctional facility or for any length of 
time in a secure adult detention or correctional facility, as outlined 
in the proposed definition in section 31.2 of the proposed rule.

Proposed Deletion of Text Repetitive of Statutory Provisions

    OJP notes that the proposed rule is drafted to be read in 
conjunction with the rules and definitions in the applicable sections 
of the JJDPA (42 U.S.C. 5601, et seq.). Thus, where the existing 
regulation contains extended repetition of JJDPA statutory language, 
the proposed rule would omit that statutory language, except where 
needed for context and ease of use. For example, the proposed rule 
would delete the following sections of the current regulation: Section 
31.100 (Eligibility) (repetitive of text found at 42 U.S.C. 5603(7)); 
section 31.101 (Designation of State agency) (describes requirements at 
42 U.S.C. 5633(a)(1) and (2)); section 31.301 (Funding) (describes the 
funding allocation at 42 U.S.C. 5632(a)); section 31.302 (Applicant 
state agency) (describes requirements at 42 U.S.C. 5633(a)(1) and (2)); 
section 31.303(a) (Assurances) (see 42 U.S.C. 5633, generally); section 
31.303(c)(1) (describes DSO requirements found at 42 U.S.C. 
5633(a)(11)); section 31.303(c)(5) (describes a requirement of the 
state plan found at 42 U.S.C. 5633(a)(12)); section 31.303(e)(1) 
(describes a requirement of the state plan required under the jail 
removal requirement at 42 U.S.C. 5633(a)(13)); section 31.303(e)(3) 
(provides a definition for the term ``collocated facilities'' which is 
defined in the Act at 42 U.S.C. 5603(28); section

[[Page 52383]]

31.303(f)(iii)(3) (Valid court order) (provides a definition for the 
term ``valid court order'' (VCO) which is defined in the Act at 42 
U.S.C. 5603(16)); section 31.303(g) (Juvenile crime analysis) (repeats 
a requirement found at 42 U.S.C. 5633(a)(7)); section 31.404 
(Participation by faith-based organizations) (states a requirement 
described in 28 CFR part 38); and section 31.102 (State agency 
structure) (addresses a provision regarding the state agency that is 
addressed in the Act at 42 U.S.C. 5633(a)(1) and (2) and 42 U.S.C. 
5633(b)).
    Section 31.303(f)(5) (Reporting requirement) would also be removed, 
as it restates the requirement found at 42 U.S.C. 5633(a)(14) that 
states report annually on the status of their compliance with the core 
requirements. The language in section 31.303(f)(5) of the current 
regulation that specifies the reporting period would now be included in 
section 31.8 of the proposed rule. The remaining text, detailing the 
specific data that must be included in the report, is proposed to be 
deleted as it is included in OJP's data collection tool that states 
have already been using. The tool will be submitted to OMB for review 
and approval and will be published for notice and comment in the 
Federal Register.
    OJP solicits public comment on whether the regulatory provisions of 
part 31 will be sufficiently clear to readers as proposed, or whether 
it may be helpful to assist readers by inserting some additional cross-
references that cite to (but do not duplicate) the relevant statutory 
provisions.

Proposed Deletion of Federal Wards Provision

    OJJDP published a notice in the Federal Register on January 9, 
1981,\2\ explaining that if a state's DSO rate was above 29.4 per 
100,000 juveniles in the state's population, OJJDP would consider a 
request from the state that ``exceptional circumstances'' existed that 
would justify the state being allowed to deduct any violations that 
resulted from the detention of federal wards. According to the Federal 
Register notice--
---------------------------------------------------------------------------

    \2\ See Policy and Criteria for de Minimis Exceptions to Full 
Compliance With Deinstitutionalization Requirement of Juvenile 
Justice and Delinquency Prevention Act, 46 FR 2566.

    The following will be recognized for consideration as 
exceptional circumstances: . . . Federal wards held under Federal 
statutory authority in a secure State or local detention facility 
[1] for the sole purpose of affecting a jurisdictional transfer, [2] 
appearance as a material witness, or [3] for return to their lawful 
---------------------------------------------------------------------------
residence or country of citizenship . . .

    OJJDP has understood the first category (juveniles detained for the 
sole purpose of affecting a jurisdictional transfer) to include 
juveniles who may be status offenders or non-offenders who are alleged 
to be dependent, neglected, or abused, and thus would be covered by the 
DSO requirement. OJJDP has understood the second category (juveniles 
detained pending an appearance as a material witness) to include 
juveniles who are neither status offenders nor non-offenders who are 
alleged to be dependent, neglected, or abused. As such, none of the 
juveniles in this second category would, in fact, be covered by the DSO 
requirement.
    Finally, the third category (juveniles detained pending return to 
their lawful residence or country of citizenship, i.e., aliens) 
includes juveniles explicitly covered by the DSO requirement, which 
prohibits placement in secure correctional facilities or secure 
detention facilities of aliens who are non-offenders.
    With respect to immigration detainees in DHS custody, as noted 
above, the DSO requirement provides that status offenders and non-
offenders who are aliens shall not be ``placed'' in secure correctional 
or secure detention facilities. To the extent that juvenile immigrant 
detainees are status offenders or non-offenders, the DSO requirement 
expressly applies to them, and the placement of those juveniles in a 
state's secure correctional or secure detention facilities would 
constitute violations of the DSO requirement.
    With the elimination of the federal ward provision, states would be 
required to report the secure placement of undocumented juvenile 
immigrants who are status offenders or non-offenders in state or local 
facilities pursuant to federal authority. The elimination of the policy 
on federal wards may affect a very small number of states that have a 
DSO rate above 29.4 that, because they could no longer deduct the 
``federal wards'' from their DSO rate, would be found out of 
compliance. Based on states' 2013 data, no state had a DSO rate above 
29.4 such that it was able to make use of the federal ward provision.
    For all of the above reasons, OJP is proposing to delete the 
provision regarding federal wards in the proposed rule.

Proposed Deletion of Provisions Rendered Obsolete by the 2002 JJDPA 
Reauthorization

    The proposed rule would delete provisions of the current regulation 
that are rendered obsolete following the 2002 reauthorization of the 
JJDPA. These include sections 31.303(f)(6)(C) and (D), which, under the 
JJDPA of 1974, addressed waivers related to states' funding for FY 1993 
and prior years, and which are no longer applicable.

Proposed Deletion of Requirements Not Specific to the Formula Grant 
Program

    The proposed rule would delete sections of the current regulation 
that contain requirements applicable to all OJP grantees, including 
section 31.201 (Audit), which repeats requirements found in the OJP 
Financial Guide; section 31.202 (Civil Rights), which repeats 
requirements found in 28 CFR 42.201, and 42.301, et seq.; and section 
31.401 (Compliance with other Federal laws, orders, circulars) which 
references, generally, ``other applicable Federal laws, orders and OMB 
circulars'' (e.g. the Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards, found at 2 CFR 
part 200). These sections are unnecessary because in accepting a 
Formula Grant Program award, states explicitly agree to comply with 
``all applicable Federal statutes, regulations, policies, guidelines, 
and requirements.'' In addition, special conditions included on all 
Formula Grant Program awards specifically require that states agree to 
comply with 2 CFR part 200 Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards; the Equal 
Employment Opportunity Plan required under 28 CFR 42.302; as well as 
OJP's Financial Guide.

Proposed Deletion of Provisions That Describe Recommendations Rather 
Than Requirements

    The proposed rule would delete sections of the current regulation 
that do not contain requirements that states must meet in order to be 
in compliance with the Formula Grant Program requirements and that 
provide information that would be more appropriate for inclusion in 
policy guidance provided to states. These include section 31.303(b) of 
the current regulation, ``Serious juvenile offender emphasis,'' which 
encourages, but does not require, states to allocate funds a certain 
way; and section 31.303(d)(1)(v), which provides examples of what's 
allowed and not allowed under the separation requirement. OJP policy 
documents will include recommendations, discussions of best practices, 
and illustrative examples of what scenarios might or might not

[[Page 52384]]

constitute compliance with Formula Grant Program requirements.

Proposed Deletion of Provisions That Are Unnecessary or Duplicative of 
the Formula Grant Program Solicitation

    The proposed rule would delete as unnecessary the text in section 
31.2 of the current regulation acknowledging the establishment of the 
Office of Juvenile Justice and Delinquency Prevention; and section 
31.203, which requires states to follow their own open meeting and 
public access laws and regulations.
    The proposed rule would delete section 31.3 of the current 
regulation (``Formula grant plan and applications''), which requires 
that Formula Grant Program applications be submitted by August 1st or 
within 60 days after states are notified of their formula grant 
allocations. The unpredictable timing of OJP's appropriations requires 
that OJP have flexibility in setting the deadline for Formula Grant 
Program applications.
    Finally, section 31.303(i) of the current regulation (``Technical 
assistance''), references a requirement stated in the Formula Grant 
Program solicitation, and that need not be repeated in the regulation, 
that states describe in their state plan their technical assistance 
needs.

V. Regulatory Certifications

Regulatory Flexibility Act

    In accordance with the principles of the Regulatory Flexibility Act 
(5 U.S.C. 605(b)), the Office of Justice Programs 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, 
as the rule regulates only states and territories, which are the 
recipients of funding under the Formula Grant Program authorized at 42 
U.S.C. 5631. This proposed rule updates the implementing regulation for 
the Formula Grant Program, including the requirements that states and 
territories must meet in order to receive funding, and among other 
things, provides a clearer basis for determining state and territory 
compliance with the applicable statutory standards. Although states are 
required to subaward 66 2/3 percent of their formula grant funds to 
local governments and local private agencies, whether a particular 
local entity receives a subaward is solely within the discretion of the 
state and is unaffected by this proposed rule. As noted above, this 
rule does not regulate small entities and does nothing to create or 
increase the financial burden on small entities.
    This regulation, therefore, will not have a significant economic 
impact on a substantial number of small entities.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation 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 proposed rule is necessary for the 
implementation of the Formula Grant Program, as required in the Act at 
42 U.S.C. 5632(1); 42 U.S.C. 5632(d); and 42 U.S.C. 5633(a).
    The Office of Justice Programs has determined that this rule is a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866, Regulatory Planning and Review, and accordingly this rule has 
been reviewed by the Office of Management and Budget. For a discussion 
of the impact of the proposed rule on states and other entities, 
including the costs and benefits, and the number of states that might 
be out of compliance (and the corresponding dollar amounts affected) 
under the proposed rule, please see further discussion below in this 
section of the preamble.
    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.
    This proposed rule is necessary to update the implementing 
regulation for the Formula Grant Program authorized under Title II, 
Part B, of the JJDPA, to conform with the amendments to the Act 
following the 2002 reauthorization, and thus there are no alternatives 
to this direct regulation. OJP considered other approaches to the 
specific requirements included in this proposed regulation and 
determined that the proposed requirements most effectively implement 
the provisions of the JJDPA. OJP welcomes comments from the public on 
any provisions of the proposed rule, as well as suggestions for 
alternative approaches to those provisions.
    Deleting provisions of the current regulation that are recommended 
practices, rather than Formula Grant Program requirements that state 
must meet, would streamline and simplify the rule, making the 
requirements more easily accessible. OJJDP's recommended practices for 
states regarding treatment of juveniles in the juvenile justice system 
can be found in policy documents on OJJDP's Web site at http://www.ojjdp.gov/compliance/index.html.
    As noted above, it is difficult to quantify the financial cost that 
states will incur should the proposed regulation be promulgated as 
drafted. Some of the proposed provisions would require states to 
dedicate additional time and resources to collecting, verifying, and 
reporting additional compliance monitoring data. In addition, the 
proposed new compliance standards may result in more states being found 
out of compliance than would be out of compliance under the current 
standards. OJP discusses below some of the estimated costs to states of 
the proposed rule.
    For example, the proposed requirement that states must report 
compliance monitoring data from 100% of facilities that are required to 
report would require that state staff spend more time collecting 
information from those facilities not immediately responsive to data 
requests. In addition, the proposed definition of ``detain or confine'' 
in section 31.2 would require that states report data for any juveniles 
held such that they were not free to leave, whether securely or non-
securely, in adult jails or lockups and in any institutions in which 
the juveniles have contact with adult inmates. This data set would 
include some holds that were not reportable under the current 
regulation and, as a result, may necessitate a reassessment and 
modification of state monitoring practices.
    Under the proposed new standards for determining compliance in 
section 31.9, more states would likely be found out of compliance with 
one or more of the core requirements than would be found out of 
compliance under the current de minimis standards. Because states' 
formula grant funding is reduced by 20% for each of the core 
requirements with which a state is determined to be out of compliance, 
pursuant to 42 U.S.C. 5633(c), the new compliance standards would 
likely result in more states receiving reduced formula grant awards 
than would under the current compliance standards.
    Under the current regulation, using states' calendar year (CY) 2013 
data, OJJDP determined two states to be out of compliance with the DSO 
requirement. Using that same CY 2013 data, under the proposed new DSO 
compliance standard, a total of forty-three states would be determined 
to be out of compliance, resulting in a

[[Page 52385]]

collective reduction in funding in the amount of $6,826,126. Under the 
current compliance standard for the separation requirement, based on CY 
2013 data, OJJDP found three states out of compliance. Using that same 
data, eight states would be determined to be out of compliance under 
the proposed standard, resulting in a collective reduction in funding 
in the amount of $1,292,217. Finally, based on states' CY 2013 data, 
OJJDP determined four states to be out of compliance with the jail 
removal requirement. Using that same data, a total of forty-one states 
would be determined to be out of compliance under the proposed 
compliance standard for the jail removal requirement, resulting in a 
collective reduction in the amount of $6,574,336. Thus, based on 
compliance figures for CY 2013, the total amount of funds by which non-
compliant states' formula grant funding would have been reduced is 
$14,692,679 if the new standards had been in effect. Of course, because 
the proposed new standards would be in effect only in future years, the 
actual effect of the new standards is dependent on the states' future 
levels of compliance.
    When states' formula grant funding is reduced for non-compliance 
with any of the core requirements, those funds are made available to 
states that have achieved full compliance with the core requirements. 
This potential additional funding provides an incentive for compliant 
states to remain in compliance.
    The proposed rule would not make substantive changes to how states 
address DMC, as they would continue to follow the 5-phase reduction 
model.
    Any burden on the states created by the revised standards for 
determining compliance is outweighed by the considerable benefit 
provided to juveniles by greater adherence to the statutory provisions 
of the Formula Grant Program to ensure that juveniles are afforded the 
protections provided by the core requirements. Through the 
implementation of this proposed rule, OJJDP will ensure closer 
adherence to the requirements of the Formula Grant Program, 
particularly with respect to the application of the four core 
requirements (DSO, separation, jail removal, and DMC), compliance with 
which determines whether states receive their full formula grant 
allocation. By establishing numerical standards for determining 
compliance with the DSO, separation, and jail removal requirements, and 
with the utilization of a new DMC assessment tool, OJJDP's process for 
determining compliance with each of the four core requirements will be 
more transparent and objective.
    This proposed rule will ensure improved enforcement of the core 
requirements, which will benefit youth within the juvenile justice 
system by ensuring that: (1) Status offenders are not placed in secure 
detention or secure correctional facilities; (2) juveniles are not 
detained such that they have sight or sound contact with adult inmates; 
(3) juveniles are not detained in jails and lockups for adults; and (4) 
states are appropriately addressing the problem of disproportionate 
minority contact, where it exists.
    The enhanced enforcement of the core requirements will result in a 
reduced risk of youth becoming further involved in the juvenile justice 
system, and of their subsequent involvement in the criminal justice 
system.

Executive Order 13132--Federalism

    This proposed rule will not have a substantial direct effect on the 
relationship between the national government and the states, on 
distribution of power and responsibilities among the various levels of 
government or on states' policymaking discretion. This proposed rule 
updates the implementing regulation for the Formula Grant Program, 
including the requirements that states and territories must meet in 
order to receive funding, and among other things, provides a clearer 
basis for determining state and territory compliance with the 
applicable statutory standards. States that participate in the Formula 
Grant Program do so voluntarily, and as a condition of receiving 
formula grant funding agree to comply with the relevant statutory 
requirements. The rule, itself, does not create any obligation on the 
part of states. 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 Sec. Sec.  
3(a) & (b)(2) of Executive Order No. 12988. Pursuant to Sec.  
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 Formula Grant Program 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 assist them in planning, establishing, operating, 
coordinating, and evaluating projects directly or through grants and 
contracts with public and private agencies for the development of more 
effective education, training, research, prevention, diversion, 
treatment, and rehabilitation programs in the area of juvenile 
delinquency and programs to improve the juvenile justice system. 
Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Fairness Act of 1996, codified at 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 proposed rule includes requirements for the collection and 
reporting of additional compliance monitoring data beyond that required 
in the current regulation to fulfill the statutory requirement for 
states in 42 U.S.C. 5633(14). Accordingly, OJP is submitting its data 
collection of information for approval to OMB as required 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, juvenile delinquency 
prevention, juvenile justice, Formula Grant Program, 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

[[Page 52386]]

Regulations is proposed to be amended as follows:

0
1. The authority citation for part 31, subpart A continues to read as 
follows:

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

0
2. Subpart A is revised to read as follows:

Subpart A--Formula Grants

General Provisions

31.1 Scope of subpart.
31.2 Definitions.
31.3 Terms: Construction, severability; effect.
31.4 Prohibited discrimination.
31.5 Formula allocation.
31.6 State plan requirements.
31.7 Core requirement monitoring.
31.8 Core requirement reporting.
31.9 Core requirement compliance determinations.

General Provisions


Sec.  31.1  Scope of subpart.

    This subpart implements the Formula Grant Program authorized by 
Part B of Title II of the Juvenile Justice and Delinquency Prevention 
Act (the ``Act'').


Sec.  31.2  Definitions.

    The following definitions are applicable to this subpart A, in 
addition to the definitions and provisions set forth in the Act.
    Administrator means the Administrator of the Office of Juvenile 
Justice and Delinquency Prevention.
    Alien, as used in the Act, at 42 U.S.C. 5633(a)(11)(B)(ii)(I), has 
the meaning as defined at 8 U.S.C. 1101 which, at the time of 
promulgation of this subpart, means any person not a citizen or 
national of the United States.
    Annual performance report means the report required to be submitted 
pursuant to the Act, at 42 U.S.C. 5633(a).
    Assessment, as used in the Act, at 42 U.S.C. 5633(a)(23)(C)(i), 
means an evaluation by an authorized representative that includes--
    (1) A description of a juvenile's behavior as well as the 
circumstances under which the juvenile was brought before the court;
    (2) Assessment of the appropriateness of available placement 
alternatives, including, without limitation, community-based placement 
options and secure confinement; and
    (3) Elaboration of any factors not included in paragraph (1) or (2) 
of this definition that may bear significantly on a determination of 
where to place the juvenile.
    Authorized representative, as used in the Act, at 42 U.S.C. 
5633(a)(23), means a child welfare professional employed or retained by 
an appropriate state or local public agency to make the assessment 
required under the Act, at 42 U.S.C. 5633(a)(23)(C)(i).
    Compliance Monitoring Report means a report required under the Act, 
at 42 U.S.C. 5633(a)(14), that contains information necessary to 
determine compliance with the core requirements as one component of the 
annual performance report.
    Construction fixtures, as used in the Act, at 42 U.S.C. 5603(12) 
and (13), means any fittings or appurtenances that are securely and 
permanently attached to a building.
    Contact between juveniles and adult inmates means any physical 
contact, or any sustained sight or sound contact, between juvenile 
offenders in a secure custody status (on the one hand) and incarcerated 
adults (on the other), including inmate trustees. Sound contact means 
direct oral communication. Sight contact means clear visibility within 
close proximity. Sustained contact does not include contact that is 
brief and inadvertent.
    Convicted means having been found guilty (or having pleaded guilty, 
no contest, or nolo contendere), and on that basis being or remaining 
detained or confined in a law enforcement facility.
    Core requirements means the requirements specified in the Act, at 
42 U.S.C. 5633(a)(11), (12), (13), and (22) (respectively, the 
deinstitutionalization of status offenders (DSO), separation, jail 
removal, and disproportionate minority contact (DMC) requirements), as 
defined in this section.
    Designated state agency means the state agency responsible for the 
administration of the program regulated by this subpart.
    Detain or confine means to hold, keep, or restrain a person such 
that a reasonable person would believe that he is not free to leave.
    DMC Requirements means the requirements related to the 
disproportionate number of juvenile members of minority groups who come 
into contact with the juvenile justice system, as referred to in the 
Act, at 42 U.S.C. 5633(a)(22).
    DSO Requirements means the requirements related to the 
deinstitutionalization of status offenders and others, as set forth in 
the Act, at 42 U.S.C. 5633(a)(11).
    Extended juvenile court jurisdiction means the jurisdiction a 
juvenile court may have over an individual who has reached the age of 
full criminal responsibility under applicable state law but nonetheless 
remains in the physical custody of state juvenile detention, 
correctional, or other facilities, under such law.
    Full due process rights guaranteed to a status offender by the 
Constitution of the United States, as used in the Act, at 42 U.S.C. 
5603(16), means such rights, as specified pursuant to rulings of the 
U.S. Supreme Court.
    Jail removal requirements means the requirements relating to 
detention or confinement of juveniles, as set forth in the Act, at 42 
U.S.C. 5633(a)(13).
    Juvenile means an individual who is subject to a state's ordinary 
juvenile court jurisdiction or remains under the state's extended 
juvenile court jurisdiction.
    Juveniles alleged to be or found to be delinquent, as used in the 
Act, at 42 U.S.C. 5633(a)(12), means juveniles who have been charged 
with, or have been adjudicated as delinquent for having committed, an 
offense other than a status offense.
    Juveniles who are accused of nonstatus offenses, as used in the 
Act, at 42 U.S.C. 5633(a)(13), means juveniles who have been charged 
with an offense other than a status offense.
    Minority groups means populations in the following categories, as 
defined (at the time of promulgation of this subpart) by the U.S. 
Census Bureau: American Indian or Alaska Native, Asian, Black or 
African American, Hispanic or Latino, and Native Hawaiian or Other 
Pacific Islander.
    Monitoring universe means all facilities within a state in which 
adult inmates are detained or confined, or in which juveniles might be 
detained or confined, including facilities owned or operated by public 
or private agencies.
    Non-secure facility, as used in the Act, at 42 U.S.C. 5633(a)(14), 
means a facility that does not have construction fixtures or the 
capability to securely detain individuals; e.g., locked cells or rooms 
that may be locked from the outside such that a person may be securely 
confined therein, cuffing benches, rails, or bolts, or other 
construction fixtures which could be used to physically restrict the 
movement of individuals.
    Placed or placement refers to what has occurred when a juvenile 
charged with a status offense, or a juvenile non-offender who is an 
alien or is dependent, neglected, or abused --
    (1) Is detained or confined in a secure correctional facility for 
juveniles or a secure detention facility for juveniles--
    (i) For 24 hours or more before an initial court appearance;
    (ii) For 24 hours or more following an initial court appearance; or
    (iii) For 24 hours or more for investigative purposes, or 
identification;

[[Page 52387]]

    (2) Is detained or confined in a secure correctional facility for 
adults or a secure detention facility for adults; or
    (3) With respect to any situations not described in paragraph (1) 
or (2) of this definition, is detained or confined pursuant to a formal 
custodial arrangement ordered by a court or other entity authorized by 
state law to make such an arrangement.
    Public holidays means all official federal, state, or local 
holidays on which the courts in a jurisdiction are closed.
    Residential, as used in the Act, at 42 U.S.C. 5603(12) and (13), 
means designed or used to detain or confine individuals overnight.
    Responsible Agency Official, as used in--
    (1) Section 18.5(a) of this title, means the Administrator; and
    (2) Section 18.5(e) of this title, means the Assistant Attorney 
General, Office of Justice Programs, whose decision on appeal shall be 
the final agency decision referred to in 28 CFR 18.9.
    Separation requirements means the requirements related to contact 
between juveniles and adult inmates, as set forth in the Act, at 42 
U.S.C. 5633(a)(12).
    Status offender means an individual who has been charged with or 
who has committed a status offense.
    Status offense means an offense that would not be criminal if 
committed by an adult.
    Twenty-four hours means a consecutive 24-hour period, exclusive of 
any hours on Saturdays, Sundays, public holidays, or days on which the 
courts in a jurisdiction otherwise are closed.


Sec.  31.3  Terms; construction, severability; effect.

    (a) Terms. In determining the meaning of any provision of this 
subpart, unless the context should indicate otherwise, the first three 
provisions of 1 U.S.C. 1 (rules of construction) shall apply.
    (b) Construction, severability. Any provision of this subpart held 
to be invalid or unenforceable by its terms, or as applied to any 
person or circumstance, shall be construed so as to give it the maximum 
effect permitted by law, unless such holding shall be one of utter 
invalidity or unenforceability, in which event such provision shall be 
deemed severable herefrom and shall not affect the remainder hereof or 
the application of such provision to other states not similarly 
situated or to other, dissimilar circumstances.
    (c) The regulations in this subpart are applicable October 7, 2016, 
except that the compliance standards set forth in Sec.  31.9 will be 
applicable beginning in the first compliance reporting period following 
the promulgation of this rule in final form.


Sec.  31.4  Prohibited discrimination.

    (a) The non-discrimination provision specified at 42 U.S.C. 
3789d(c), and incorporated into the Act at 42 U.S.C. 5672(b), shall be 
implemented in accordance with 28 CFR part 42.
    (b) In complying with the non-discrimination provision at 42 U.S.C. 
3789d(c), as implemented by 28 CFR part 42, the designated state 
agencies and sub-recipients shall comply with such guidance as may be 
issued from time to time by the Office for Civil Rights within the 
Office of Justice Programs.


Sec.  31.5  Formula allocation.

    The relative population of individuals under age eighteen, as used 
to determine a state's annual allocation for grants administered under 
this subpart, pursuant to 42 U.S.C. 5632(a), shall be determined 
according to the most recent data available from the U.S. Census 
Bureau.


Sec.  31.6   State Plan requirements.

    As part of what is required pursuant to the Act, at 42 U.S.C. 
5633(a), and pursuant to this subpart, each state shall, in its State 
Plan--
    (1) Describe any barriers actually or potentially faced by the 
state in achieving compliance with each of the four core requirements.
    (2) Describe policies and procedures in effect for receiving, 
investigating, and reporting complaints involving activity that would 
result in instances of non-compliance with any of the four core 
requirements.


Sec.  31.7   Core requirement monitoring.

    No state shall be understood to have an adequate system of 
monitoring pursuant to the Act, at 42 U.S.C. 5633(a)(14), unless the 
following are included within its State Plan:
    (a) Identification of each facility within the monitoring universe;
    (b) Classification of each facility within the monitoring universe, 
including--
    (1) By type of facility (e.g., juvenile detention or correctional 
facility, adult correctional institution, and jail or lockup for 
adults);
    (2) By indication of whether the facility is public or private, and 
residential or nonresidential; and
    (3) By indication of whether the facility's purpose is to detain or 
confine juveniles only, adults only, or both juveniles and adults;
    (c) Indication that the state has conducted (and will continue to 
conduct) an on-site inspection of each facility within the monitoring 
universe at least once every 3 federal fiscal years--
    (1) To ensure an accurate classification of each facility;
    (2) To ensure accurate recordkeeping by each facility, including 
verification of self-reported data provided by a facility;
    (3) To determine whether the data relating to each facility are 
valid and maintained in a manner that allows a state to determine 
compliance with the DSO, jail removal, and separation requirements; and
    (4) To determine (as applicable) whether adequate sight and sound 
separation between juveniles and adult inmates exists.
    (d) With respect to facilities within the monitoring universe that 
have been classified such that they are required to report annual 
compliance data (e.g., juvenile detention or correctional facilities, 
adult correctional institutions, and jails or lockups for adults)--
    (1) A report, covering the applicable full federal fiscal year, of 
the instances of non-compliance with the DSO, separation, and jail 
removal requirements within--(A) 100% of such facilities; or (B) Not 
less than 90% of such facilities, coupled with the submission of data 
from the remaining non-reporting facilities, within 60 days of the 
original submission deadline, except that states may request that the 
Administrator grant a waiver, for good cause, of the provision that 
100% of facilities report; and
    (2) Where such data are self-reported by facility personnel or are 
collected and reported by an agency other than the designated state 
agency--
    (i) A description of a statistically-valid procedure used to verify 
such data; and
    (ii) An indication that the designated state agency verified such 
data through onsite review of each facility's admissions records and 
booking logs;
    (e) Certification that the state has policies and procedures in 
place governing the implementation and maintenance of an adequate 
system of monitoring, and, where the state has different definitions 
for juvenile and criminal justice terms than those provided in the Act 
and this subpart, a precise description of those differences and a 
certification that the definitions in the Act and this subpart have 
been used in the monitoring process and in the State Plan;
    (f) Description of the authority or arrangement under which the 
designated state agency enters facilities to inspect and collect data 
from all

[[Page 52388]]

facilities within the monitoring universe classified such that they are 
required to report annual compliance data.
    (g) A timetable specifically detailing when and in which facilities 
compliance monitoring will occur;
    (h) Description of procedures for receiving, investigating, and 
reporting complaints of instances of non-compliance with the DSO, jail 
removal, and separation requirements; and
    (i) Description of any barriers faced in implementing and 
maintaining a system adequate to monitor the level of compliance with 
the DSO, jail removal, and separation requirements, including (as 
applicable) an indication of how it plans to overcome such barriers.


Sec.  31.8  Core requirement reporting.

    (a) Time period covered. The compliance monitoring report shall 
contain data for one full federal fiscal year (i.e., October 1st 
through the following September 30th).
    (b) Deadline for submitting compliance data. The compliance 
monitoring report shall be submitted no later than January 31st 
immediately following the fiscal year covered by the data contained in 
the report.
    (c) Certification. The information contained in a state's 
compliance monitoring report, shall be certified in writing by a 
designated state official authorized to make such certification, which 
certification shall specify that the information in the report is 
correct and complete to the best of the official's knowledge and that 
the official understands that a false or incomplete submission may be 
grounds for prosecution, including under 18 U.S.C. 1001 and 1621.


Sec.  31.9  Core requirement compliance determinations.

    (a) Compliance with the DSO requirement. A state is in compliance 
with the DSO requirement for a federal fiscal year when it has a rate 
of compliance at or below 0.24 per 100,000 juvenile population in that 
year.
    (b) Compliance with the separation requirement. A state is in 
compliance with the separation requirement for a federal fiscal year 
when it has zero instances of non-compliance in that year.
    (c) Compliance with the jail removal requirement. A state is in 
compliance with the jail removal requirement for a federal fiscal year 
when it has a rate of compliance at or below 0.12 per 100,000 juvenile 
population in that year.
    (d) Compliance with the DMC requirement. A state is in compliance 
with the DMC requirement when it includes a DMC report within its State 
Plan, which report contains the following:
    (1) A detailed description of adequate progress in implementing the 
following 5-phase DMC reduction model:
    (i) Identification of the extent to which DMC exists, via the 
Relative Rate Index (a measurement tool to describe the extent to which 
minority youth are overrepresented at various stages of the juvenile 
justice system), which must be done both statewide and for at least 
three local jurisdictions (approved by the Administrator) with the 
highest minority concentration or with focused-DMC-reduction efforts, 
and at the following contact points in the juvenile justice system: 
Arrest, diversion, referral to juvenile court, charges filed, placement 
in secure correctional facilities, placement in secure detention 
facilities, adjudication as delinquent, community supervision, and 
transfer to adult court;
    (ii) Assessment and comprehensive analysis (which must be completed 
within 12 months of identification of the existence of DMC, or such 
longer period as may be approved by the Administrator) to determine the 
significant factors contributing to DMC identified pursuant to 
paragraph (d)(1)(i) of this section, at each contact point where it 
exists. Such assessment and comprehensive analysis shall be conducted--
    (A) When DMC is found to exist within a jurisdiction at any of the 
contact points listed in paragraph (d)(1)(i) of this section, and not 
less than once in every five years thereafter;
    (B) When significant changes in the Relative Rate Index are 
identified during the state's monitoring of DMC trends; or
    (C) When significant changes in juvenile justice system laws, 
procedures, and policies result in statistically-significant increased 
rates of DMC;
    (iii) Intervention, through delinquency prevention and systems-
improvement strategies to reduce DMC that have been assessed under 
paragraph (d)(1)(ii), based on the results of the identification data 
and assessment findings, which strategies target communities where 
there is the greatest magnitude of DMC throughout the juvenile justice 
system and include, at a minimum, specific goals, measurable 
objectives, and selected performance measures;
    (iv) Evaluation (within three to five years of the DMC-related 
intervention under paragraph (d)(1)(iii)) of the effectiveness of the 
delinquency prevention and systems-improvement strategies, using 
appropriate formal, methodological evaluative instruments, including 
the appropriate Performance Measures for the Data Collection and 
Technical Assistance Tool (DCTAT), located on OJJDP's Web site, which 
will assist in gauging short and long-term progress toward reducing 
DMC; and
    (v) Monitoring to track changes in DMC statewide and in the local 
jurisdictions under paragraph (d)(1)(i) of this section, in order to 
identify emerging issues affecting DMC and to determine whether there 
has been progress towards DMC reduction where it has been found to 
exist, to include the making of comparisons between current data and 
data obtained in earlier years and (when quantifiable data are 
unavailable to determine whether or to what extent the Relative Rate 
Index has changed) the provision of a timetable for implementing a data 
collection system to track progress towards reduction of such DMC; and
    (2) Where DMC has been found to exist--
    (i) A description of the prior-year's progress toward reducing DMC; 
and
    (ii) An adequate DMC-reduction implementation plan (including a 
budget detailing financial and/or other resources dedicated to reducing 
DMC).

    Dated: July 27, 2016.
Karol V. Mason,
Assistant Attorney General.
[FR Doc. 2016-18371 Filed 8-5-16; 8:45 am]
 BILLING CODE 4410-18-P