Juvenile Justice and Delinquency Prevention Act Formula Grant Program, 52377-52388 [2016-18371]
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Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Proposed Rules
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Dated: August 1, 2016.
Leslie Kux,
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[FR Doc. 2016–18533 Filed 8–5–16; 8:45 am]
BILLING CODE 4164–01–P
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
Office of Justice Programs,
Justice.
ACTION: Notice of proposed rulemaking.
AGENCY:
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
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SUMMARY:
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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 https://
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 https://
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
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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 https://
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
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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)
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for which a determination of noncompliance 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
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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
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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
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
1 See, e.g., City of Los Angeles v. Coleman, 397
F. Supp. 547 (D.D.C. 1975).
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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 noncompliance 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 noncompliance 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
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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-
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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 noncompliance 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 noncompliance 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
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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 noncompliance.
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
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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.
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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
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DMC at each contact point; (3)
Intervention strategies to reduce DMC;
(4) Evaluation of the effectiveness of the
delinquency prevention and systemimprovement 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
https://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
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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 5phase 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
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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
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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
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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
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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.
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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—
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
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.
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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 nonoffenders 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
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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
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This regulation, therefore, will not
have a significant economic impact on
a substantial number of small entities.
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
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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.
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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
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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
https://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 fortythree states would be determined to be
out of compliance, resulting in a
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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
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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 §§ 3(a) & (b)(2) of
Executive Order No. 12988. Pursuant to
§ 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
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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 foreignbased 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
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Regulations is proposed to be amended
as follows:
■ 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.
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
§ 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’’).
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§ 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
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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
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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 nonoffender 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;
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(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.
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§ 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
§ 31.9 will be applicable beginning in
the first compliance reporting period
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following the promulgation of this rule
in final form.
§ 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 nondiscrimination 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.
§ 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.
§ 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 noncompliance with any of the four core
requirements.
§ 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
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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 statisticallyvalid 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
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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 noncompliance 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.
§ 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.
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§ 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
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Jkt 238001
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 focusedDMC-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 systemsimprovement 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,
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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
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2016–0424; FRL–9950–38–
Region 8]
Approval and Promulgation of Air
Quality Implementation Plans; South
Dakota; Revisions to the Permitting
Rules
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
State Implementation Plan (SIP)
revisions submitted by the State of
South Dakota on October 23, 2015 and
July 29, 2013 related to South Dakota’s
Air Pollution Control Program. The
October 23, 2015 submittal revises
certain definitions and dates of
incorporation by reference and contains
new, amended and renumbered rules. In
this rulemaking, we are taking final
action on all portions of the October 23,
2015 submittal, except for those
SUMMARY:
E:\FR\FM\08AUP1.SGM
08AUP1
Agencies
[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
https://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 https://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
https://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\
---------------------------------------------------------------------------
\1\ See, e.g., City of Los Angeles v. Coleman, 397 F. Supp. 547
(D.D.C. 1975).
---------------------------------------------------------------------------
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 https://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 https://www.ojjdp.gov/compliance/.
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;
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(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
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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