Juvenile Justice and Delinquency Prevention Act Formula Grant Program, 4783-4793 [2017-00740]
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Federal Register / Vol. 82, No. 10 / Tuesday, January 17, 2017 / Rules and Regulations
42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22
U.S.C. 7210; Sec. 1503, Pub. L. 108–11, 117
Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR,
1978 Comp., p. 179; E.O. 12851, 58 FR 33181,
3 CFR, 1993 Comp., p. 608; E.O. 12938, 59
FR 59099, 3 CFR, 1994 Comp., p. 950; E.O.
13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
Comp., p. 783; Presidential Determination
2003–23, 68 FR 26459, 3 CFR, 2004 Comp.,
p. 320; Notice of August 4, 2016, 81 FR 52587
(August 8, 2016); Notice of November 8,
2016, 81 FR 79379 (November 10, 2016).
2. Section 742.10 is amended by:
a. Adding a paragraph heading to
paragraph (b)(1) introductory text;
■ b. Revising the first sentence of
paragraph (b)(1)(iv);
■ c. Adding a paragraph heading to
paragraph (b)(2); and
■ d. Revising paragraph (b)(3).
The additions and revisions read as
follows:
■
■
§ 742.10
Anti-terrorism: Sudan.
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(b) * * *
(1) General policy of denial. * * *
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(iv) Except as provided in paragraph
(b)(3)(ii) of this section, all aircraft
(powered and unpowered), helicopters,
engines and related spare parts and
components. * * *
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(2) Military end-user and end-use
policy. * * *
(3) Other licensing policies. The
licensing policies set forth in this
paragraph apply notwithstanding the
provisions of paragraphs (b)(1) and
(b)(2) of this section.
(i) Case-by-case review policy.
Applications to export or reexport to
Sudan will be considered on a case-bycase basis in the four situations
described in paragraphs (b)(3)(i)(A)
through (D) of this section.
(A) The transaction involves the
reexport to Sudan of items where Sudan
was not the intended ultimate
destination at the time of original export
from the United States, provided that
the export from the United States
occurred prior to the applicable contract
sanctity date.
(B) The U.S. content of foreignproduced commodities is 20% or less by
value.
(C) The commodities are medical
items.
(D) The items are telecommunications
equipment and associated computers,
software and technology for civil end
use, including items useful for the
development of civil
telecommunications network
infrastructure.
Note to paragraph (b)(3)(i).
Applicants seeking approval of their
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license applications pursuant to this
paragraph must include with their
applications documentation
demonstrating how their proposed
transaction is consistent with one or
more of the four situations described in
this paragraph.
(ii) General policy of approval.
Applications to export or reexport to
Sudan the following for civil uses by
non-sensitive end-users within Sudan
will be reviewed with a general policy
of approval.
(A) Parts, components, materials,
equipment, and technology that are
controlled on the Commerce Control
List (Supp. No. 1 to part 774 of the EAR)
only for anti-terrorism reasons that are
intended to ensure the safety of civil
aviation or the safe operation of fixedwing commercial passenger aircraft.
(B) Items controlled on the Commerce
Control List (Supp. No. 1 to part 774 of
the EAR) only for anti-terrorism reasons
that will be used to inspect, design,
construct, operate, improve, maintain,
repair, overhaul or refurbish railroads in
Sudan.
Note to paragraph (b)(3)(ii).
Applications will generally be denied
for exports or reexports that would
substantially benefit a sensitive end
user. Sensitive end users include
Sudan’s military, police, and
intelligence services and persons that
are owned by or are part of or operated
or controlled by those services.
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Supplement No. 2 to Part 742
[Amended]
3. In Supplement No. 2 to part 742,
remove and reserve paragraphs (c)(6)(iii)
and (c)(10)(iii).
■
Dated: January 4, 2017.
Kevin J. Wolf,
Assistant Secretary for Export
Administration.
4783
of the U.S. Department of Justice’s
Office of Justice Programs (‘‘OJP’’),
publishes this partial final rule to
amend portions of the formula grant
program (‘‘Formula Grant Program’’)
regulation to reflect changes in OJJDP
policy.
Effective Date: This rule is
effective February 16, 2017.
DATES:
FOR FURTHER INFORMATION CONTACT:
Gregory Thompson, Senior Advisor,
Office of Juvenile Justice and
Delinquency Prevention, at 202–307–
5911.
The OJJDP
Formula Grant Program is authorized by
the Juvenile Justice and Delinquency
Prevention Act (‘‘JJDPA’’). The JJDPA
authorizes OJJDP to provide an annual
grant to each State to improve its
juvenile justice system and to support
juvenile delinquency prevention
programs. OJJDP published a notice of
proposed rulemaking on August 8, 2016,
81 FR 52377, that proposed to revise the
entirety of the Formula Grant Program
regulation.
OJJDP is finalizing some, but not all,
aspects of the proposed rule here. For
several provisions, OJJDP has addressed
the comments received and is amending
the current Formula Grant Program
regulation through this partial final rule.
For other provisions included in the
proposed rule, OJJDP received
voluminous comments that will require
additional time for OJJDP to consider
them thoughtfully. OJJDP anticipates
publishing a final rule in the future
addressing the remainder of the
proposed changes that are not addressed
in this partial final rule.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Regulatory Action
[FR Doc. 2017–00836 Filed 1–13–17; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF JUSTICE
28 CFR Part 31
The JJDPA authorizes annual formula
grants to be made to States to improve
their juvenile justice systems and to
support juvenile delinquency
prevention programs.1 See 42 U.S.C.
5631(a). OJJDP promulgates this rule
pursuant to the rulemaking authority
granted to the OJJDP Administrator (the
Administrator) by 42 U.S.C. 5611(b).
B. Summary of the Major Provisions of
the Partial Final Rule
[Docket No.: OJP (OJJDP) 1719]
RIN 1121–AA83
AGENCY:
This rule amends the Formula Grant
Program regulation in the following
respects: (1) It replaces 28 CFR
31.303(f)(6), which provides standards
for determining compliance with the
The Office of Juvenile Justice
and Delinquency Prevention (‘‘OJJDP’’)
1 Pursuant to 42 U.S.C. 5603(7), ‘‘the term ‘State’
includes the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, and the Commonwealth of
Northern Mariana Islands.’’
Juvenile Justice and Delinquency
Prevention Act Formula Grant Program
Office of Justice Programs,
Department of Justice.
ACTION: Final rule.
SUMMARY:
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core requirements found at 42 U.S.C.
5633(a)(11), the ‘‘deinstitutionalization
of status offenders’’ (DSO); 42 U.S.C.
5633(a)(12), ‘‘separation’’; and 42 U.S.C.
5633(a)(13), ‘‘jail removal’’; (2) it
provides a definition for the term
‘‘detain or confine,’’ clarifying that the
term refers to both the secure detention
and non-secure detention of juveniles;
(3) it changes the deadline to February
28th for States to report their
compliance monitoring data for the
previous federal fiscal year and provides
that the Administrator may, for good
cause, grant a State’s request for an
extension of the February 28th reporting
deadline to March 31st; (4) it requires
that States provide compliance data for
85% of facilities that are required to
report on compliance with the DSO,
separation, and jail removal
requirements; and (5) it adds a
requirement that States provide a full
twelve months’ worth of compliance
data for each reporting period.
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C. Cost and Benefits
As noted in the preamble to the
Notice of Proposed Rulemaking, it is
difficult to quantify the financial costs
to States of the increased monitoring
and reporting requirements, and OJJDP
did not receive any comments from
States indicating what those increased
costs might be. OJJDP expects, however,
that those costs will be considerably
lower under this partial final rule than
they would have been under the
proposed rule. For example, under the
compliance standards in this partial
final rule, only eight States would be
out of compliance based on the fiscal
year 2013 data, rather than the fortyeight States that would have been out of
compliance under the standards in the
proposed rule. In addition, in this
partial final rule the revised definition
of ‘‘detain or confine’’ clarifies, per the
statute, that the term does not apply to
situations where juveniles are being
held solely pending their return to a
parent or guardian or pending transfer
to the custody of a child welfare or
social services agency. Nor (in keeping
with the statute) does it apply to
situations where juveniles are held in a
non-secure area of a building that also
houses an adult jail or lockup. OJJDP
expects that this clarification, along
with the revised definition, will greatly
reduce the amount of data that States
will have to collect, compared to what
they would have had to collect under
the proposed definition. Finally,
although the proposed rule would have
required that 100% of facilities annually
report compliance data, this partial final
rule provides that States must submit
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annual compliance data from only 85%
of those facilities.
II. Background
A. Overview
This rule amends the regulation
implementing the JJDPA Formula Grant
Program at 28 CFR part 31, authorized
by 42 U.S.C. 5631(a). This section of the
JJDPA authorizes OJJDP to provide an
annual grant to each State to improve its
juvenile justice system and to support
juvenile delinquency prevention
programs.
B. History of This Rulemaking
On August 8, 2016, OJP published a
Notice of Proposed Rulemaking at 81 FR
52377, seeking comments on a rule that
would have superseded the current
Formula Grant Program regulation at 28
CFR part 31 in its entirety. The period
for commenting on the proposed rule
closed on October 7, 2016. During that
period, OJJDP received 72 written
comments, from a diverse array of
respondents, representing State entities
that administer the JJDPA, child
advocacy organizations, public interest
groups, and individuals.
Based on the volume and complexity
of the comments received, OJP has
decided to publish a partial final rule to
implement only some of the provisions
included in the proposed rule as
amendments to the current regulations.
Many of the provisions included in the
proposed rule, and responses to
comments regarding those provisions,
will be addressed in a future final rule,
after further consideration.
Changes Proposed in the Proposed Rule
That Are Being Finalized in the Partial
Final Rule 2
1. The compliance standards included
in section 31.9 of the proposed rule for
the DSO, separation, and jail removal
requirements have been significantly
revised. This rule incorporates the
revised language by amending section
31.303(f)(6) of the current regulation,
through the adoption of a new
methodology for determining the
compliance standards on an annual
basis.
2. The requirement in section
31.7(d)(1) of the proposed rule that
States must annually submit compliance
monitoring data from 100% of all
facilities that are required to report such
data has been modified. This rule
amends section 31.303(f)(5) of the
2 Because this partial final rule amends only
certain sections of part 31, subpart A, rather than
replacing the entire regulation (as the proposed rule
would have done), the section numbers of these
amended provisions correspond with the sections
in the current regulations.
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current regulations, such that States will
be required to report data for 85% of
facilities and demonstrate how they
would extrapolate and report, in a
statistically valid manner, data for the
remaining 15% of facilities.
3. Consistent with the requirement in
section 31.8(a) of the proposed rule, this
rule amends section 31.303(f)(5) of the
current regulations to change the
compliance data reporting period to the
federal fiscal year as required by the
Act, at 42 U.S.C. 5633(c).
4. Instead of the proposed annual
deadline of January 31st included in
section 31.8(b) of the proposed rule for
States to submit their compliance
monitoring reports, this rule amends
section 31.303(f)(5) of the current
regulations to change the deadline to
February 28th, with a provision
allowing the Administrator to grant a
one-month extension to March 31st
upon a State’s showing of good cause.
5. This rule modifies the definition for
‘‘detain or confine’’ included in section
31.2 of the proposed rule. This rule adds
this definition in subsection 31.304(q) of
the current regulations, and clarifies
that it does not apply to juveniles who
are being held by law enforcement
solely pending their reunification with
a parent or guardian or pending transfer
to the custody of a child welfare or
social services agency.
Changes Proposed in the Proposed Rule
That Will Be Addressed in a Future
Final Rule
1. Proposed changes to the
Disproportionate Minority Contact
(DMC) requirement;
2. Providing definitions for the
following terms: ‘‘Administrator’’,
‘‘alien’’, ‘‘annual performance report’’,
‘‘assessment’’, ‘‘authorized
representative’’, ‘‘compliance
monitoring report’’, ‘‘construction
fixtures’’, ‘‘contact between juveniles
and adult inmates’’, ‘‘convicted’’, ‘‘core
requirements’’, ‘‘designated state
agency’’, ‘‘DMC requirements’’, ‘‘DSO
requirements’’, ‘‘extended juvenile court
jurisdiction’’, ‘‘full due process rights
guaranteed to a status offender by the
Constitution of the United States’’, ‘‘jail
removal requirements’’, ‘‘juvenile’’,
‘‘juveniles alleged to be or found to be
delinquent’’, ‘‘juveniles who are
accused of nonstatus offenses’’,
‘‘minority groups’’, ‘‘monitoring
universe’’, ‘‘non-secure facility’’,
‘‘placed or placement’’, ‘‘public
holidays’’, ‘‘residential’’, ‘‘responsible
agency official’’, ‘‘separation
requirements’’, ‘‘status offender’’,
‘‘status offense’’, ‘‘twenty-four hours’’;
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3. Proposed deletion of text in the
current regulation that is repetitive of
statutory provisions;
4. Proposed deletion of the Federal
wards provision in the current
regulation;
5. Proposed deletion of provisions in
the current regulation rendered obsolete
by the 2002 JJDPA reauthorization;
6. Proposed deletion of requirements
in the current regulation not specific to
the formula grant program and are
found elsewhere such as in the Uniform
Administrative Requirements, Cost
Principles and Audit Requirements for
Federal Awards, at 2 CFR part 200;
7. Proposed deletion of provisions
that describe recommendations rather
than requirements;
8. Proposed deletion of provisions
that are unnecessary or duplicative of
the formula grant program solicitation;
9. Prohibited discrimination provision
(§ 31.4 in the proposed rule) (i.e., the
non-discrimination provision at 28 CFR
31.403—‘‘Civil rights requirements’’—
remains in effect);
10. Proposed formula allocation
(§ 31.5 in the proposed rule) (which
would not alter the formula described in
the Act at 42 U.S.C. 5632, but would
simply require that a State’s annual
allocation be based on data available
from the U.S. Census Bureau);
The proposed provision (§ 31.8(c) in
the NPRM) requiring that a designated
State official certify that the information
in the State’s compliance monitoring
report is correct and complete is not
being codified in this partial final rule,
but this certification is already required
under OJJDP’s current policy on
‘‘Monitoring of State Compliance with
the Juvenile Justice and Delinquency
Prevention Act.’’ 3
III. Discussion of Comments and
Changes Made by This Rule
A. Compliance Standards
Based heavily on feedback from
commenters, and in conjunction with
statisticians in OJP’s Bureau of Justice
Statistics, OJJDP has developed new
compliance standards using the
distribution of compliance rates
reported in States’ compliance
monitoring reports. The compliance
standards included in section
31.303(f)(6) of this rule are significantly
different from the standards contained
in section 31.303(f)(6) of the current
formula grant program regulations, as
well as from those in the proposed rule.
OJJDP believes that the methodology for
establishing new compliance standards
included in this partial final rule fully
addresses the concerns raised by
commenters, which are discussed more
fully below.
1. Revised Methodology for Determining
Compliance Standards
In determining the compliance
standards, the distribution of each set of
compliance rates (i.e., for DSO,
separation, and jail removal) using the
average of two or more years of data
(removing, when appropriate and
applicable, one negative outlier each for
DSO, separation, and jail removal) and
applying a standard deviation factor of
not less than one, will be analyzed to
determine its mean, and standard
deviations therefrom.
DSO ..........................................................
Separation .................................................
Jail Removal .............................................
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Current compliance standard
At or below 5.8, 5.9 to 17.6, 17.7 to 29.4
0 (with exceptions) ...................................
At or below 9 ............................................
After removing the negative outlier
from data for each of the three core
requirements, the average rate, per
100,000 juvenile population, would be
2.85 for DSO, 0.04 for separation, and
2.38 for jail removal. Applying a
standard deviation factor of 2 to each of
these averages results in a final rate, per
100,000 juvenile population, of 9.89 for
DSO, 0.28 for separation, and 8.94 for
jail removal. States would need to be at,
or below, these rates for OJJDP to find
As provided in the final rule, section
31.303(f)(6) provides that, based on this
information, a compliance rate that is
not less than one standard deviation
above the mean rate will be set as the
compliance standard. Once established,
the standards will be posted annually
(in numerical form) on OJJDP’s Web site
by August 31 of each year. Any State
that reports a compliance rate above this
compliance standard will be determined
to be out of compliance. This
methodology will not be applied,
however, to States’ FY 2016 and FY
2017 compliance monitoring reports, in
order to allow for a transition period.
2. Standard for Determining Compliance
Based on States’ FY 2016 Compliance
Data
Under the revised methodology
described above, only data from
Calendar Year (CY) 2013 will be used to
establish standards for making
compliance determinations based on
States’ FY 2016 annual monitoring
reports (affecting the FY 2017 awards).
After removing one negative outlier
from the DSO distribution (with a rate
of 70.16 per 100,000 juvenile
population), one negative outlier from
the separation distribution (with a rate
of 2.82 per 100,000 juvenile
population), and one negative outlier in
the jail removal distribution (with a rate
of 82.8 per 100,000 juvenile
population), the means without the
negative outliers, the standard
deviations, and what the compliance
standards would be, based on two
standard deviations above the means, is
presented in the table below:
Standard
deviation
(SD)
Mean without
negative outlier
Core requirement
them in compliance with the DSO,
separation, and jail removal core
requirements.
As provided in this rule, amending
section 31.303(f)(6) of the current
regulation, OJJDP will employ the
methodology described above in
establishing annual compliance
standards for DSO, separation, and jail
removal core requirements for
determinations based on States’ FY 2016
data. Immediately following the
2.85
0.04
2.38
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6.37
0.16
5.66
Compliance
standard
(two SD from
mean)
9.89
0.28
8.94
publication of this partial final rule,
OJJDP will post the standards for
determining compliance with the DSO,
separation and jail removal
requirements, which will be derived
from CY 2013 data and will be used in
making compliance determinations
based on States’ FY 2016 compliance
monitoring reports. These
determinations will serve as the basis
for establishing whether States will
receive their full FY 2017 formula grant
3 In any event, the report itself is subject to the
False Statements Act, 18 U.S.C. 1001, as a matter
of course.
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allocation or their awards will be
reduced for non-compliance.
3. Standard for Determining Compliance
Based on States’ FY 2017 Compliance
Data
As provided in this rule, amending
section 31.303(f)(6), in establishing
compliance standards to apply to the FY
2017 compliance data (affecting the FY
2018 awards), OJJDP will take the
average of the combined CY 2013 and
FY 2016 compliance data (removing,
when appropriate/applicable, one
negative outlier in each data collection
period for DSO, separation, and jail
removal) and apply a standard deviation
factor of not less than one to establish
the compliance standards to be applied
to the FY 2017 compliance monitoring
reports.
This methodology, which may result
in compliance standards’ being adjusted
from one year to the next, recognizes the
difficulty that States’ face in preventing
all instances of non-compliance with
each core requirement and allows a
State that reports a minimal number of
such instances to be found in
compliance and to continue to receive
its full formula grant allocation.
Applied to
compliance
monitoring
report year
Data used to establish compliance standards
CY 2013 .............................................................................................................................................................
CY 2013 and FY 2016 .......................................................................................................................................
FY 2016 and FY 2017 .......................................................................................................................................
FY 2017 and FY 2018 .......................................................................................................................................
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4. Comments on Proposed Compliance
Standards
OJJDP received numerous comments
on the methodology for establishing the
compliance standards in the proposed
rule, and on the resulting standards
published in the proposed rule.
Commenters questioned the data used,
the methodology employed to establish
the standards, and the lack of
opportunity to provide supporting
documentation to address compliance
deficiencies; they also raised the
possibility of withdrawing from
participation in the Formula Grant
Program. Based on these comments,
OJJDP has revised the compliance
standards in the partial final rule, as
discussed below, following a summary
of the comments received.
A number of commenters raised
concern with using data from only three
States with the lowest rates of
compliance, from each of the four
Census Bureau regions. Several
commenters also made the point that
the data used in calculating the
proposed compliance standards (CY
2013), did not include data based on the
new guidance for ‘‘detain or confine,’’
rendering the calculation unfair,
arbitrary, rigid, and extreme. In
addition, several States suggested that in
calculating a rate for the compliance
standards, OJP should use the average of
two or three years of data from all
States, and those data should include
data based on the ‘‘detain or confine’’
guidance.
A number of commenters stated that
it would be unfair not to allow States to
provide additional documentation
demonstrating how they would address
violations as they occur, in order to
demonstrate compliance. For example,
under the current compliance standards
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for DSO and jail removal, a State whose
rate puts it out of compliance in
principle could nevertheless
demonstrate compliance with the de
minimis standard by providing
additional documentation (i.e., recent
passage of state law, or executive or
judicial policy; or submission of an
acceptable plan to eliminate the
instances of non-compliance), that
would allow it to be found in
compliance.
Additionally, many commenters
stated that if their State incurred just
one DSO, separation, or jail removal
violation, the State would be out of
compliance under the proposed
standards, resulting in a reduction of
their formula grant allocation by 20%
for each requirement with which the
State is out of compliance. In addition,
the State would be required to expend
50% of its remaining allocation to
achieve compliance.
In response, although the current
regulation permits States with a certain
number of instances of non-compliance
nevertheless to be found in compliance
with the de minimis standards by
providing additional documentation,
OJJDP believes that the elimination of
the subjective nature of this de minimis
review will allow for a clearer and more
objective process by which compliance
determinations will be made.
OJJDP appreciates the thoughtful and
detailed comments regarding the
methodology used to establish the
proposed compliance standards for the
DSO, separation, and jail removal core
requirements. OJJDP agrees that using
data from all States, not just three States
with the lowest violation rates, from
each of the four Census Bureau regions,
would provide for a more representative
and balanced approach for establishing
compliance standards.
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FY
FY
FY
FY
2016
2017
2018
2019
Affecting fiscal
year title II
allocation
FY
FY
FY
FY
2017
2018
2019
2020
5. States’ Withdrawal From
Participation in the Formula Grant
Program
Several States questioned whether
they would continue to participate in
the Formula Grant Program, should the
proposed compliance standards be
implemented. It has never been OJJDP’s
intention to implement compliance
standards that would discourage States’
participation in the Formula Grant
Program. OJJDP believes that the
methodology described in this partial
final rule to establish annual
compliance standards is responsive to
comments received and will encourage
States’ continued participation in the
Formula Grant Program.
B. Revised Definition of ‘‘Detain or
Confine’’
The partial final rule contains a
definition for the term ‘‘detain or
confine’’ in section 31.304(q) that differs
in some respects from what was in the
proposed rule. In response to the many
comments received, OJJDP has revised
the definition in two key respects: To
clarify that (1) a juvenile who was not
actually free to leave was ‘‘detained,’’
regardless of whether he believed he
was free to leave; and (2) juveniles who
are being held by law enforcement
personnel for their own safety, and
pending their reunification with a
parent or guardian or pending transfer
to the custody of a child welfare or
social service agency, are not ‘‘detained
or confined’’ within the meaning of the
JJDPA.
OJJDP recognizes that the definition
in the proposed rule may not have made
sufficiently clear that the primary
question in determining whether a
juvenile was detained is whether he
was, in fact, free to leave. If law
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enforcement personnel would not have
allowed the juvenile to leave, he was
necessarily being detained, and there is
no need to inquire as to whether he
believed he was free to leave. For this
reason, OJJDP has revised the definition
to indicate that ‘‘detain or confine’’
means to hold, keep, or restrain a person
such that he is not free to leave. If law
enforcement personnel indicate that the
juvenile was free to leave, it would be
incumbent upon them to explain how/
why the juvenile would have
understood that he was free to leave.
This revised definition also allows
law enforcement to hold juveniles who
(for example) are runaways, abandoned,
endangered due to mental illness,
homelessness, or drug addiction, or are
victims of sex trafficking or other
crimes, held pending their return to
their parent or guardian or while law
enforcement locates a safe environment
in which to place them. In such
instances, juveniles would not be
considered to be ‘‘detained or confined’’
at all.
Before addressing the specific
comments regarding the definition of
‘‘detain or confine’’ that was included in
the proposed rule, OJJDP offers
additional clarification of the impact of
the definition of ‘‘detain or confine,’’ as
used in the separation and jail removal
requirements at 42 U.S.C. 5633(a)(12)
and (13), respectively. First, those core
requirements are applicable only in
specific types of facilities. In
determining whether there has been an
instance of non-compliance with either
of these core requirements, it is critical
to note that the threshold inquiry must
be ‘‘In what type of facility was the
juvenile held?’’ An instance of noncompliance with the separation
requirement can occur only in secure
facilities in which juveniles have sight
and sound contact with adult inmates.4
An instance of non-compliance with the
jail removal requirement can occur only
in a jail or lockup for adults, as defined
at 42 U.S.C. 5603(22). If the juvenile was
not held in one of these types of
facilities, the inquiry ends there, and
4 Under 42 U.S.C. 5633(a)(12), the separation
requirement is implicated when a juvenile is
detained or confined in any institution in which he
has contact with an adult inmate. ‘‘Contact’’ is
defined at 42 U.S.C. 5603(25) as ‘‘the degree of
interaction allowed between juvenile offenders in a
secure custody status and incarcerated adults’’
under 28 CFR 31.303(d)(1)(i) (emphasis added). In
turn, section 31.303(d)(1)(i) states: ‘‘A juvenile
offender in a secure custody status is one who is
physically detained or confined in a locked room
or other area set aside or used for the specific
purpose of securely detaining persons who are in
law enforcement custody’’ (emphasis added). Read
together, these provisions indicate that
‘‘institution’’ as used in the separation requirement
must be understood to be a secure facility.
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there can be no instance of noncompliance. Only if the facility is a jail
or lockup for adults or is a secure
facility or a secure area within a facility
in which adult inmates are detained
must it be determined whether the
juvenile was detained or confined
therein. For this reason, States need not
monitor and report on ‘‘Terry’’
investigative stops on the street or
instances in which juveniles are
detained within a public or private
school, or anywhere other than a jail or
lockup for adults, or a secure facility in
which adult inmates are detained or
confined.
OJP received many questions
regarding whether specific scenarios
would constitute a juvenile’s being
detained or confined, under the
definition in the proposed rule. Because
these were questions, rather than
comments on the proposed rule, OJJDP
will address them through guidance on
OJJDP’s Web site. OJJDP also encourages
States to submit any additional
questions about specific fact patterns,
which will be posted along with
answers on OJJDP’s Web site.
Comment That OJP Is Incorrectly Using
‘‘Miranda’’ Standards in Defining
‘‘Detain or Confine’’
Several commenters objected to
OJJDP’s adherence to Fourth
Amendment jurisprudence in
determining an appropriate definition of
the phrase ‘‘detain or confine.’’
In response, despite these
commenters’ opinions to the contrary,
Fourth Amendment jurisprudence is
applicable in the context of defining
‘‘detain or confine’’ for the purposes of
the JJDPA, as the plain language of that
phrase references the restraining of an
individual’s (in this context, a
juvenile’s) liberty, which, as the U.S.
Supreme Court noted in U.S. v.
Mendenhall, 446 U.S. 544, 552 (1980), is
the very definition of a ‘‘seizure.’’ 5
Thus, OJJDP does not agree with the
argument that the application of Fourth
Amendment jurisprudence generally,
and/or the standards set forth in
Mendenhall specifically, is improper.
Moreover, while OJJDP recognizes
that Mendenhall was in fact a case
involving an adult, the U.S. Supreme
Court has never limited the Fourth
Amendment protections enumerated
5 As noted in the proposed rule, per U.S. v.
Mendenhall, the Fourth Amendment governs all
‘‘seizures’’ of the person, ‘‘including seizures that
involve only a brief detention short of traditional
arrest.’’ See 446 U.S. 544, 547 (1980). Further, a
‘‘seizure’’ for the purposes of the Fourth
Amendment has occurred when an officer ‘‘by
means of physical force or a show of authority, has
in some way restrained the liberty of a citizen.’’ Id.
at 548.
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therein to the adult population. Indeed,
the U.S. Supreme Court has consistently
recognized that, due to the inherent
differences between adults and
juveniles (in terms of maturity and
reasoning), juveniles should, in certain
circumstances, be afforded more
protections than adults would be. One
such example is the U.S. Supreme
Court’s decision in J.D.B. v. North
Carolina, 564 U.S. 261 (2011). Contrary
to some commenters’ understanding,
J.D.B. v. North Carolina did not
establish a de facto ‘‘reasonable minor’’
standard for determining juvenile
custody that was somehow separate
from the standard established in
Mendenhall. Rather, the Supreme
Court’s decision in J.D.B.—that a
juvenile’s age may affect his or her
perception(s) of his or her interactions
with law enforcement, and a juvenile’s
age, therefore, must be one of many
factors considered in any determination
of whether the interrogation of the
juvenile was a ‘‘custodial interrogation’’
for the purposes of Miranda warnings—
was an explicit acknowledgement that
Fourth Amendment protections
espoused in Mendenhall not only
extend to juveniles, but actually may be
expanded under some circumstances
where juveniles are concerned.
Nonetheless, OJJDP has considered the
commenters’ stated objections to the
application of Fourth Amendment
jurisprudence and has revised the
definition to clarify that whether the
juvenile is, in fact, free to leave is the
critical factor in determining whether he
is detained. If he is not, in fact, free to
leave, as OJJDP expects will be the case
in the vast majority of instances, he is
detained.
Comments Received Regarding
Proposed Definition of ‘‘Detain or
Confine’’
One commenter questioned the reason
for the proposed definition, stating that
there has been either no research or at
least no broadly published research that
a significantly widespread problem
exists that supports the implementation
of the new definition.
In response, OJJDP notes that the
purpose of including the definition of
‘‘detain or confine’’ in the proposed
rule, and in the partial final rule, is to
clarify that the separation and jail
removal requirements are implicated
when a juvenile is detained in certain
settings, regardless of whether he is
‘‘securely’’ detained. As noted above,
the word ‘‘detain’’ has a plain meaning
in 4th Amendment jurisprudence.
Under that jurisprudence, one can be
detained without being ‘‘securely’’
detained such as by a show of authority.
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return to his parent or guardian, without
its resulting in an instance of noncompliance. Several commenters also
stated that the proposed definition
would give law enforcement the
incentive to charge juveniles with a
delinquent offense, or to charge them as
adults because States could then detain
them securely without a resulting
instance of non-compliance.
In response, as explained above,
OJJDP’s revised definition in this rule
clarifies that when law enforcement
personnel are holding a juvenile only
pending his return to his parent or
guardian or pending his transfer to the
custody of a child welfare or social
service agency, he is not detained.
OJJDP believes that the revised
definition will allay the concerns raised
by many commenters that under the
proposed definition of ‘‘detain or
confine,’’ law enforcement would have
a disincentive to bring status offenders
or non-offenders (such as runaways) to
a law enforcement facility to hold them
until a parent or guardian could pick
them up.
One commenter requested that OJJDP
clearly specify who qualifies as a parent
or guardian, but that is a determination
that should be made according to the
law of the relevant State.
Several commenters questioned
whether liability would attach if law
enforcement personnel were to tell a
juvenile that he was free to leave a law
enforcement facility, the juvenile did
leave the law enforcement facility, and
as a result the juvenile suffered some
harm. OJP believes it would not be
appropriate for OJP to provide legal
advice to States as to whether law
enforcement personnel or a law
enforcement agency could be held liable
in such a situation.
Concern About Law Enforcement’s
Ability To Detain Juveniles
Temporarily, for Their Own Safety
Many commenters recommended that
OJJDP maintain the current definition of
‘‘detain or confine,’’ which requires the
physical restraint of a juvenile in a
holding cell or locked interview room or
by cuffing to a stationary object, because
that would allow law enforcement to
continue to detain a juvenile nonsecurely in a law enforcement facility
for his own safety, and pending his
sradovich on DSK3GMQ082PROD with RULES
(Terry v. Ohio, 392 U.S. 1, 20, n.16
(1968)). Therefore, the absence of the
word ‘‘securely’’ before ‘‘detain’’ in the
JJDPA indicates that, on its face, the
statutory term is not limited to juveniles
who are ‘‘securely’’ detained. Consistent
with the definition of ‘‘detain or
confine’’ in the proposed rule, and with
the revised definition included in this
partial final rule, the current regulation
is being amended by removing the word
‘‘securely’’. To understand ‘‘detained’’
to refer only to juveniles who are
‘‘securely’’ detained would be to read a
word into the statute that is simply not
there.
Several commenters contended that
the proposed definition of ‘‘detain or
confine’’ is contrary to the intent of the
drafters of the JJDPA, which was to
protect juveniles held in secure custody.
Because the term ‘‘detain or confine’’ is
itself unambiguous, there is neither
room for interpretation of the term nor
warrant to attempt to determine—
beyond what the plain text of the statute
itself indicates—the ‘‘intent’’ of the
drafters. Thus, OJJDP has not changed
the definition to mean only secure
detention.6
One commenter suggested that OJJDP
is proposing a new definition of ‘‘detain
or confine,’’ in order to address
problems in select jurisdictions, and
that research should be conducted to
determine the extent of the problem of
‘‘youth languishing in law enforcement
custody in a non-secure environment.’’
In response, OJJDP believes that the
commenter misunderstood the purpose
for the inclusion of this definition,
which is not to address concerns within
specific jurisdictions, but to conform
more closely to the JJDPA and to clarify
for all jurisdictions the plain meaning of
the term used in the statute.
How will law enforcement know what
a juvenile reasonably believes?
Many commenters stated that the
proposed definition of ‘‘detain or
confine’’ is vague, ambiguous, or
confusing in that it is difficult to know
whether a juvenile in a particular
situation would have understood that he
was free to leave. Several commenters
also stated that the proposed definition
is too subjective and will make it
extremely difficult for law enforcement
to know when a juvenile is being
‘‘detained’’ for purposes of the Formula
Grant Program.
OJJDP disagrees that the definition is
vague, ambiguous or confusing. As
noted above, the key question is
whether the juvenile was, in fact, free to
leave the law enforcement facility,
because the juvenile’s state of mind is
irrelevant if he was not free to leave.
6 A juvenile could be non-securely detained in a
secure facility or secure area of an adult jail or
lockup. For instance, the juvenile might physically
be in the jail or lockup area, sitting in a chair
without handcuffs or other restraints, but
‘‘detained’’ as the result of a show of authority by
a law enforcement official present, making it clear
the juvenile is not free to leave, which would result
in an instance of non-compliance with the jail
removal and possibly separation requirements.
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Under the revised definition in this
partial final rule, it is only in instances
where law enforcement personnel assert
that the juvenile actually was free to
leave that the inquiry next proceeds to
whether the juvenile understood that he
was free to leave. Contrary to the
commenters’ assertions, however, this
second inquiry does not necessitate that
law enforcement ‘‘read the minds of
juveniles’’ or determine whether a
‘‘reasonable juvenile’’ would have felt
free to leave. Rather, in keeping with
applicable Fourth Amendment
jurisprudence, this second
determination requires an objective
examination of the circumstances
surrounding the juvenile’s interaction
with law enforcement, including any
circumstance that would have affected
how a reasonable person in the
juvenile’s position would perceive his
or her freedom to leave. Because a
juvenile’s age may affect how a
reasonable person in his position would
perceive his freedom to leave, consistent
with U.S. Supreme Court precedent,
where the juvenile’s age is known to law
enforcement, it must be a factor that is
taken into consideration in making the
determination. See J.D.B., 564 U.S. at
275–77. It bears noting that the
juvenile’s age may not be determinative,
or even a significant factor, in every
case; but it is one objective factor that
must be taken into consideration, along
with other objective factors such as the
location(s) of the juvenile’s
interaction(s) with law enforcement, the
duration of law enforcement’s
interaction(s) with the juvenile, the
number of law enforcement officers
present during the interaction(s), and
any other circumstances surrounding
the juvenile’s time in the presence of
law enforcement that may inform a
determination as to whether the juvenile
understood he was free to leave.
One commenter stated that whether a
juvenile believes he is free to leave is
irrelevant to whether he is protected
from potential harm by being in contact
with an adult inmate. The same
commenter stated that law enforcement
personnel have the ability ‘‘simply by
their presence . . . [to] limit
conversation or other interaction
between the juvenile and any adult
inmate, thus limiting potential for
harm.’’ In response, OJJDP believes that
the commenter’s quarrel is with the
JJDPA itself. By its express terms, the
statute’s separation requirement is
implicated when a juvenile is detained
or confined in any institution in which
he has contact with an adult inmate,
regardless of whether law enforcement
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personnel are present and able to limit
his interaction with an adult inmate.
sradovich on DSK3GMQ082PROD with RULES
How will law enforcement document
whether a juvenile knew that he was
free to leave?
At least one commenter noted that the
proposed definition of ‘‘detain or
confine’’ would cause a burden to law
enforcement and complicate compliance
monitoring activity, noting it will be
cumbersome for law enforcement
officers to collect relevant information
every time a juvenile is brought to their
departments. Additionally, several
commenters questioned how law
enforcement would document whether a
juvenile knew that he was free to leave.
In the preamble to the proposed rule,
OJJDP gave as an example that law
enforcement could produce a video
recording of the juvenile indicating that
he understood that he was free to leave.
Commenters stated that requiring law
enforcement personnel to make such a
video recording is impractical and costprohibitive. OJJDP understands the
additional burden that would create for
a law enforcement agency. A more
practical method of indicating that a
juvenile understood that he was free to
leave would be for law enforcement
personnel to have the juvenile sign a
form indicating that he understood he
was free to leave, or for a law
enforcement official to sign a form
certifying that the juvenile was advised
that he was free to leave.
One commenter expressed concern
that juveniles who would not otherwise
have their information put into a law
enforcement database might now be
entered into the system. We note that
States could use paper forms that would
be made available to the State’s
compliance monitor but need not be
entered into any law enforcement
computer system.
Applicability of Term ‘‘Detain or
Confine’’ to the DSO Requirement
Several commenters questioned the
use of the term ‘‘detain or confine’’
within the context of the DSO
requirement. The commenter is correct
that, unlike the separation and jail
removal requirements, in which the
term ‘‘detain or confine’’ is used, the
DSO requirement is implicated when a
juvenile is ‘‘placed’’ in a secure
detention or secure correctional facility.
The commenter asserted that the use of
a different term—‘‘placed’’—for the DSO
requirement—thus indicates that the
term means something other than
simply ‘‘detained or confined.’’
In response, OJJDP notes that the
‘‘placement’’ of a juvenile in a secure
detention or secure correctional facility
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Jkt 241001
means, at a minimum, that he is not free
to leave and is, therefore detained (and
confined). Therefore, a juvenile who has
been ‘‘placed’’ has necessarily been
‘‘detained or confined.’’
In the proposed rule, for the purposes
of determining whether the DSO
requirement would be applicable, OJJDP
had included a proposed definition of
the term ‘‘placed or placement’’ to
clarify that it would refer, not to mere
‘‘detention or confinement,’’ but to
circumstances where detention or
confinement within a secure juvenile
detention or correctional facility has
resulted in a ‘‘placement.’’ Many
commenters noted concerns about the
proposed definition of ‘‘placed or
placement.’’ The partial final rule does
not include a definition of ‘‘placed or
placement.’’ This issue will be
addressed in a future final rule, and
OJJDP will respond to all comments
regarding this issue in detail in the
subsequent final rule.
Whether a Juvenile’s Participation in a
‘‘Scared Straight’’ or ‘‘Shock
Incarceration’’ Program Would Result in
Non-Compliance With the Jail Removal
and/or Separation Requirements
A commenter questioned whether,
under the proposed rule, a juvenile
under public authority could be
required to participate in a ‘‘Scared
Straight’’ or ‘‘shock incarceration’’
program in which he is brought into
contact with an adult within an adult
jail or lockup or in a secure correctional
facility for adults, as a means of
modifying his behavior. The commenter
asked whether such participation would
result in an instance of non-compliance
with the jail removal and/or separation
requirements when a parent has
consented to the child’s participation in
the program, or in an instance in which
the juvenile who is participating in the
program as a form of diversion fails to
complete the program and the original
charge is reinstated. The commenter is
apparently questioning whether the
voluntariness of a juvenile’s
participation, and whether there would
be consequences for not participating, in
such a program would determine
whether or not he was ‘‘detained’’
within sight or sight or sound contact of
an adult inmate, resulting in an instance
of non-compliance.
In response, OJJDP notes that whether
such programs may result in instances
of non-compliance with the separation
and/or jail removal requirements will
depend on the specific manner in which
the program operates and the
circumstances of the juveniles’
participation in the program. A key
factor in determining whether instances
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4789
of non-compliance have occurred is
whether juveniles participating in the
program were free to leave the program
while in sight or sound contact with
adult inmates, regardless of whether the
juvenile’s initial participation was
voluntary. If a parent or guardian has
consented to his child’s participation
and may withdraw that consent at any
time, the juvenile is not detained. States
are encouraged to contact OJJDP for
guidance about whether a particular
program is resulting in—or has resulted
in—instances of non-compliance.
Generally speaking, if a juvenile
participates in a program as a condition
of diversion from the juvenile justice
system, and does so with a parent’s or
guardian’s consent, he is not detained,
regardless of whether his failure to
complete the program would result in
the reinstatement of a charge against
him.
Applicability of Proposed Definition of
‘‘Detain or Confine’’ to the Six-Hour
Exception in the JJDPA at 42 U.S.C.
5633(a)(13)(A)
Several commenters questioned how
the proposed definition would apply to
the provision allowing States to detain
an accused delinquent offender for up to
six hours for processing or release,
while awaiting transfer to a juvenile
facility, or in which period such
juveniles make a court appearance,
without a resulting instance of noncompliance. In response, OJJDP believes
that no change in the final definition is
needed in response to this comment.
The definition in this rule would not
alter the JJDPA exception at 42 U.S.C.
5633(a)(13)(A) that allows States to
detain an accused delinquent offender
for up to 6 hours for those purposes.
Applicability of Proposed Definition of
‘‘Detain or Confine’’ to Juveniles Under
Criminal Jurisdiction
One commenter stated that there
should be an exception to the
application of the proposed definition of
‘‘detain or confine’’ for juveniles waived
or transferred to a criminal court. In
response, OJJDP believes that no change
in the final definition is needed in
response to this comment. The core
requirements do not apply to juveniles
who are under criminal court
jurisdiction.
Recommending a ‘‘Rural Exception’’ to
the New Definition
Another commenter recommended
that if OJJDP decides to alter the current
definition of ‘‘detain or confine’’, it
should create a ‘‘rural exception’’ to the
rule that would allow non-metropolitan
areas to continue to use the current
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definition. OJJDP has no authority under
the JJDPA to allow certain States or
localities to use a different definition of
the term ‘‘detain or confine.’’
Proposed Alternative Definition of
‘‘Detain or Confine’’
One commenter recommended that
OJJDP remove the word ‘‘detain’’ from
the definition and focus only on the
confinement of juveniles, which the
commenter asserts would be consistent
with guidance provided in a memo from
the OJJDP Administrator dated February
13, 2008. The Administrator’s
memorandum discusses the definition
of an adult lockup, relevant to
determining the facilities in which an
instance of non-compliance with the jail
removal requirement can occur. In
response, OJJDP believes that no change
in the definition is needed in response
to this comment. The instances of noncompliance with the jail removal
requirement addressed in the
Administrator’s memorandum can occur
only in facilities that meet the definition
of a ‘‘jail or lockup for adults’’ as
defined in the JJDPA at 42 U.S.C.
5603(22). That definition requires that
the facility must be a ‘‘locked facility.’’
Thus, instances of non-compliance with
the jail removal requirement cannot
occur in non-secure facilities. Nor, as
discussed above, would a juvenile’s
detention in the non-secure portion of a
law enforcement facility implicate the
jail removal requirement.
sradovich on DSK3GMQ082PROD with RULES
Whether the Definition of ‘‘Detain or
Confine’’ Will Expand the Monitoring
Universe
Many commenters expressed
concerns about whether the proposed
rule would expand the types of facilities
that must be included in the monitoring
universe. In response, OJJDP has
concluded that the definition of ‘‘detain
or confine’’ in this final rule does not
expand the current monitoring universe
and that no change in the definition in
the final rule is needed in response to
this comment. Under OJJDP’s current
guidance, the following facilities must
be monitored: Adult jails and lockups,
secure detention facilities, secure
correctional facilities, court holding
facilities, and collocated facilities
(which includes facilities previously
listed). Non-secure facilities must be
monitored periodically to ensure that
they have not changed characteristics
such that they have become secure
facilities. OJJDP will respond to all
comments regarding the scope of the
monitoring universe in greater detail in
the subsequent final rule that will be
published in the future with respect to
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matters not covered in this partial final
rule.
What data are expected for a compliance
monitor to collect in order to monitor
adequately?
Many commenters questioned what
additional data would be required under
the proposed definition of ‘‘detain or
confine,’’ and how those data should be
collected. Under the proposed rule, as
well as under the revised definition in
this rule, law enforcement personnel in
adult jails and lockups and other secure
facilities in which both juveniles and
adult inmates are detained, would be
required to keep logs regarding juveniles
who are detained securely and nonsecurely (and not merely those securely
detained, as States have done
previously). It is important to note here
that such logs should not include
juveniles detained—either securely or
non-securely—in a non-secure area of a
law enforcement facility, as the
separation and jail removal
requirements are not applicable in that
context. It should be stressed here that
the revised definition of ‘‘detain or
confine’’ in this final rule does not
include juveniles who are held solely
pending return to their parents or
guardians or pending transfer to a social
service or child welfare agency, thus
eliminating the need for States to collect
data on juveniles held for these reasons.
Similarly, law enforcement personnel in
institutions (secure facilities) in which
(1) accused or adjudicated delinquent
offenders, (2) status offenders, and (3)
non-offenders who are aliens (or are
alleged to be dependent, neglected, or
abused) might have contact with adult
inmates, would be required to keep logs
on when such juveniles did, in fact,
have contact with adult inmates.
Need for Training and Technical
Assistance
Several commenters expressed
concern that OJJDP has not provided
any training on the implementation of
the ‘‘detain or confine’’ guidance,
stating that it is unrealistic to expect
States to apply this new guidance until
appropriate training and technical
assistance has been provided. Other
commenters stated that it would be costprohibitive for States to provide such
training to law enforcement personnel.
Another commenter suggested that
OJJDP should highlight successful
models both for determining in what
common situations a juvenile would
likely believe he is not free to leave as
well as examples of best practices for
States with rural and/or diffuse
populations.
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In response, OJJDP intends to provide
additional guidance materials regarding
implementation of the proposed
definition of ‘‘detain or confine’’ and is
also planning to provide States with
training in 2017 on how to monitor for,
and collect and report data on
compliance in accordance with that
definition.
C. Requirement That 100% of Facilities
Must Report Compliance Data
Many commenters expressed concern
about the proposed requirement that
100% of facilities in their States be
required to report annual compliance
data.7 Commenters expressed concern
that it would not be possible to achieve
the 100% threshold, raising a number of
challenges they would face in collecting
data from 100% of the facilities in their
States, including lack of legislative
authority, time constraints, and an
increase in associated costs.
In response, OJJDP believes that many
of the commenters’ concerns may have
arisen from the belief that the proposed
rule would have expanded the
monitoring universe to include
additional facilities with respect to
which States are not currently collecting
data. As discussed above, under the
proposed rule and, more importantly,
under this partial final rule, the
monitoring universe does not change,
and States will continue to be required
to monitor adult jails and lockups,
secure detention facilities, secure
correctional facilities, and any other
institutions (secure facilities) in which
juveniles might have contact with adult
inmates. (States must also continue to
monitor non-secure facilities to ensure
that they have not changed physical
characteristics such that they have
become secure facilities.)
A few commenters suggested that the
number of facilities that must report be
reduced. (Various commenters
respectively suggested 85%, 90%, or
95% as being a more practical
requirement than the 100% level in the
proposed rule.) In response, OJJDP
acknowledges and understands the
challenges described by the States in
their comments, and this partial final
rule has revised the proposal, so that
States will be required to collect and
report compliance data for 85% of
facilities and to demonstrate how they
would extrapolate and report, in a
statistically valid manner, data for the
remaining 15% of facilities.
Under the JJDPA at 42 U.S.C.
5633(a)(14), the state plan that each
7 This requirement was included in OJJDP’s
Policy: Monitoring of State Compliance with the
Juvenile Justice and Delinquency Prevention Act,
provided to States in October 2015.
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State must submit in order to be eligible
for Formula Grant Program funding
must ‘‘provide for an adequate system of
monitoring jails, detention facilities,
corrections facilities, and non-secure
facilities to insure that the [DSO,
separation, and jail removal
requirements] are met, and for annual
reporting of the results of such
monitoring to the Administrator.’’
(Emphasis added.) The statutory
provision does not specifically require
reporting from 100% of facilities in a
State’s annual monitoring report, thus
giving OJJDP the administrative
discretion to permit States to report for
less than 100% of all facilities in the
State, provided that its monitoring
system be adequate. It is in the exercise
of this same administrative discretion
that OJJDP for decades used (and
promulgated in its regulations for this
program) various de minimis standards
that allowed for less than full
compliance by States under appropriate
circumstances. Cf. Washington Red
Raspberry Comm’n v. United States, 859
F. 2d 898, 902 (Fed. Cir. 1988) (‘‘The de
minimis concept is well-established in
federal law. Federal courts and
administrative agencies repeatedly have
applied the de minimis principle in
interpreting statues, even when
Congress failed explicitly to provide for
the rule.’’)
A few commenters indicated concern
with the ‘‘good cause’’ standard in the
proposed rule allowing for waiver of the
proposed requirement for States to
report data from 100% of facilities. In
response, OJJDP notes that the reduction
from 100% to 85% of the number of
facilities required to report eliminates
the need for a waiver exception to the
reporting requirement, and that
proposal is not included in this final
rule.
sradovich on DSK3GMQ082PROD with RULES
D. Issues Relating to Reporting
Compliance Data for Core Requirements
1. Reporting of Compliance Data Based
on Federal Fiscal Years and Deadline for
Reporting Compliance Data
Many commenters objected to the
language in the proposed rule requiring
that States provide compliance data on
a fiscal-year basis, because of the
shortened period States will have for
submitting compliance data from the
time the reporting period ends on
September 30th of each year and the
proposed deadline of January 31st for
submitting their data. A few
commenters noted that the period in
which States will be collecting and
verifying their data includes several
holidays during which staff often take
leave and also occurs during a period in
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which weather conditions make travel
difficult within many States.
Additionally, commenters expressed
concern that this shortened timeframe
would present significant challenges to
submission of accurate data (especially
in light of the requirement to collect
data from 100% of facilities) and would
require additional resources to do so. A
few commenters recommended
extending the deadline, for instance, to
March 15th or March 31st.
OJJDP has carefully considered these
comments. The JJDPA itself requires
reporting data on a fiscal-year basis,
which was the reason for conforming
the regulatory reporting period to the
statutory requirement.
In response to the concerns raised and
balancing them with OJJDP’s need for
sufficient time to complete compliance
determinations that will inform that
year’s awards, OJJDP has extended the
deadline in this partial final rule to
February 28th, with the possibility of an
extension to March 31st if a State were
to demonstrate good cause.
2. Requirement That States Report
Twelve Months of Data for Each
Reporting Period
One commenter questioned whether
the proposed requirement that 100% of
facilities report compliance data
annually would affect the requirement
in section 31.303(f)(5) of the current
regulation that States may submit a
minimum of six months’ of data for a
reporting period. The proposed rule
indicated that States’ compliance
monitoring reports must contain data for
‘‘one full federal fiscal year.’’
In response, OJJDP has clarified the
applicability of this language. This
partial final rule amends section
31.303(f)(5) to delete the language
allowing States to report ‘‘not less than
six months of data,’’ thus making it clear
that States are required to provide
compliance data for the full twelvemonth reporting period. (And, as noted
above, this partial final rule provides
that States must submit data from 85%
of facilities that are required to report
compliance data.)
IV. Regulatory Certifications
Regulatory Flexibility Act
In accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), the
Office of Juvenile Justice and
Delinquency Prevention has reviewed
this regulation and, by approving it,
certifies that it will not have a
significant economic impact on a
substantial number of small entities.
The Formula Grant Program provides
funding to States pursuant to a statutory
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4791
provision, which is not affected by this
regulation. Because States have
complete discretion as to which local
governments and other entities will
receive formula grant funds through
subgrants, as well as the amount of any
subgrants, this rule will have no direct
effect on any particular local
governments or entities.
OJJDP received more than one
comment disagreeing with OJJDP’s
assessment that the proposed regulation
will not have a significant economic
impact on a substantial number of small
entities. OJJDP’s basis for so certifying is
that the rule regulates only States and
territories, which are the recipients of
funding under the Formula Grant
Program. Commenters argued that the
proposed rule, if made final as
proposed, potentially would result in as
many as 48 States being out of
compliance with one or more of the core
requirements. One commenter notes
that because the States are required by
statute to pass through 662⁄3 percent of
the funding, the basis for certifying
there is no significant impact on a
substantial number of small
governmental entities is not plausible
and that cutting the funding to that
number of States would certainly affect
a substantial number of small entities.
OJJDP disagrees with these comments
because, as noted above, only grants to
States and territories are regulated by
the rule. Nonetheless, in this partial
final rule, OJJDP has revised
significantly the compliance standards,
and expects that under the revised
standards only eight States are likely to
be out of compliance with one or more
of the core requirements under the Act,
and to receive a reduction in funding as
a result.
Executive Orders 12866 and 13563—
Regulatory Review
This rule has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulatory Planning and
Review’’ section 1(b), Principles of
Regulation, and in accordance with
Executive Order 13563 ‘‘Improving
Regulation and Regulatory Review’’
section 1(b), General Principles of
Regulation.
The Office of Justice Programs has
determined that this rule is a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f),
Regulatory Planning and Review, and
accordingly this rule has been reviewed
by the Office of Management and
Budget. This partial final rule makes
important improvements in the setting
of annual compliance standards for the
States, clarifies the definition of ‘‘detain
or confine,’’ and makes other
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sradovich on DSK3GMQ082PROD with RULES
improvements in the administration of
the Formula Grant Program. The total
formula grant appropriation funding
available to States for the last five years
has been less than $43 million per year.
Executive Order 13563 directs
agencies to propose or adopt a
regulation only upon a reasoned
determination that its benefits justify its
costs; tailor the regulation to impose the
least burden on society, consistent with
obtaining the regulatory objectives; and,
in choosing among alternative
regulatory approaches, select those
approaches that maximize net benefits.
Executive Order 13563 recognizes that
some benefits and costs are difficult to
quantify and provides that, where
appropriate and permitted by law,
agencies may consider and discuss
qualitative values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts.
This most significant provision of this
rule updates the standards for
determining compliance with the DSO,
separation, and jail removal
requirements, which have not been
updated since 1981 for DSO, 1994 for
separation, and 1988 for jail removal.
The new compliance standards in this
rule were carefully considered in light
of the potential costs and benefits that
would result and are narrowly tailored
to recognize the significant progress that
States have made over the last 35 years
while ensuring that States continue to
strive to protect juveniles within the
juvenile justice system.
Executive Order 13132—Federalism
One commenter stated that in the
Regulatory Certifications section of the
preamble to the proposed rule (section
V.), ‘‘the classical argument between
state rights vers[u]s federal powers is
mentioned in great detail and so we feel
should be addressed.’’ OJJDP does not
agree that that section includes any
discussion of States’ rights in relation to
the federal government, or that any such
discussion would be relevant. The
Formula Grant Program does not impose
any mandates on States; nor does it
interfere with States’ sovereignty,
authorities, or rights. States, rather,
participate in the program voluntarily
and, as a condition of receipt of funding
to improve their juvenile justice systems
and to operate juvenile delinquency
prevention programs, agree to comply
with the program’s requirements.
This rule will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on
distribution of power and
responsibilities among the various
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16:30 Jan 13, 2017
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levels of government, as the rule only
affects the eligibility for, and use of,
federal funding under this program. The
rule will not impose substantial direct
compliance costs on State and local
governments, or preempt any State laws.
Therefore, in accordance with Executive
Order No. 13132, it is determined that
this rule does not have sufficient
federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988—Civil Justice
Reform
This rule meets the applicable
standards set forth in sections 3(a) &
(b)(2) of Executive Order No. 12988.
Pursuant to section 3(b)(1)(I) of the
Executive Order, nothing in this or any
previous rule (or in any administrative
policy, directive, ruling, notice,
guideline, guidance, or writing) directly
relating to the Program that is the
subject of this rule is intended to create
any legal or procedural rights
enforceable against the United States,
except as the same may be contained
within subpart B of part 94 of title 28
of the Code of Federal Regulations.
Unfunded Mandates Reform Act of 1995
This rule will not result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
in any one year, and it will not
significantly or uniquely affect small
governments. The Formula Grant
Program provides funds to States to
improve their juvenile justice systems
and to support juvenile delinquency
prevention programs. As a condition of
funding, States agree to comply with the
Formula Grant Program requirements.
Therefore, no actions are necessary
under the provisions of the Unfunded
Mandates Reform Act of 1995.
Congressional Review Act
This rule is not a major rule as
defined by 5 U.S.C. 804. This rule will
not result in an annual effect on the
economy of $100,000,000 or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
Paperwork Reduction Act
This rule does not propose any new,
or changes to existing, ‘‘collection[s] of
information’’ as defined by the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501, et seq.) and its
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implementing regulations at 5 CFR part
1320.
List of Subjects in 28 CFR Part 31
Administrative practice and
procedure, Formula Grant Program,
Juvenile delinquency prevention,
Juvenile justice, Juvenile Justice and
Delinquency Prevention Act (JJDPA).
Accordingly, for the reasons set forth
in the preamble, part 31 of chapter I of
Title 28 of the Code of Federal
Regulations is amended as follows:
PART 31—OJJDP GRANT PROGRAMS
1. The authority citation for 28 CFR
part 31 is revised to read as follows:
■
Authority: 42 U.S.C 5611(b); 42 U.S.C.
5631–5633.
Subpart A—Formula Grants
§ 31.303
Substantive requirements.
2. Amend § 31.303 as follows:
a. In paragraphs (e)(2), (e)(3)(i), and
(f)(4)(vi), remove the words ‘‘secure
custody’’ and add in their place
‘‘detention’’.
■ b. Revise paragraph (f)(5) introductory
text.
■ c. In paragraph (f)(5)(i)(D), remove the
words ‘‘securely detained’’ and add in
their place ‘‘detained’’.
■ d. In paragraphs (f)(5)(iii)(C) and
(f)(5)(iii)(D), remove the words ‘‘secure
detention and confinement’’ and add in
their place ‘‘detention and
confinement’’.
■ e. In paragraphs (f)(5)(iv)(F), (G), (H),
and (I), remove the words ‘‘held
securely’’ and add in their place
‘‘detained’’.
■ f. Revise paragraph (f)(6).
The revisions read as follows:
■
■
§ 31.303
Substantive requirements.
*
*
*
*
*
(f) * * *
(5) Reporting requirement. The State
shall report annually to the
Administrator of OJJDP on the results of
monitoring for the core requirements in
the JJDPA at 42 U.S.C. 5633(a)(12), (13),
and (14). The reporting period should
provide 12 months of data for each
federal fiscal year, for 85% of facilities
within the State that are required to
report compliance data, and States must
extrapolate and report, in a statistically
valid manner, data for the remaining
15% of facilities. The report shall be
submitted to the Administrator of OJJDP
by February 28 of each year, except that
the Administrator may grant an
extension of the reporting deadline to
March 31st, for good cause, upon
request by a State.
*
*
*
*
*
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(6) Compliance. The State must
demonstrate the extent to which the
requirements of sections 223(a)(11),
(12), and (13) of the Act are met.
(i) In determining the compliance
standards to be applied to States’ FY
2016 compliance monitoring data, the
Administrator shall collect all of the
data from each of the States’ CY 2013
compliance reports, remove one
negative outlier in each data collection
period for DSO, separation, and jail
removal, and apply a standard deviation
factor of two to establish the compliance
standards to be applied, which shall be
posted on OJJDP’s Web site no later than
March 3, 2017.
(ii) In determining the compliance
standards to be applied to States’ FY
2017 compliance monitoring data, the
Administrator shall collect all of the
data from each of the States’ CY 2013
and FY 2016 compliance reports
(removing, when appropriate or
applicable, one negative outlier in each
data collection period for DSO,
separation, and jail removal) and apply
a standard deviation factor of not less
than one to establish the compliance
standards to be applied, which shall be
posted on OJJDP’s Web site by August
31, 2017.
(iii) In determining the compliance
standards to be applied to States’ FY
2018 and subsequent years’ compliance
monitoring data, the Administrator shall
take the average of the States’
compliance monitoring data from not
less than two years prior to the
compliance reporting period with
respect to which the compliance
determination will be made (removing,
when applicable, one negative outlier in
each data collection period for DSO,
separation, and jail removal) and apply
a standard deviation of not less than one
to establish the compliance standards to
be applied, except that the
Administrator may make adjustments to
the methodology described in this
paragraph as he deems necessary and
shall post the compliance standards on
OJJDP’s Web site by August 31st of each
year.
*
*
*
*
*
■ 3. Amend § 31.304 by adding
paragraph (q) to read as follows:
§ 31.304
Definitions.
sradovich on DSK3GMQ082PROD with RULES
*
*
*
*
*
(q) Detain or confine means to hold,
keep, or restrain a person such that he
is not free to leave, or such that a
reasonable person would believe that he
is not free to leave, except that a
juvenile held by law enforcement solely
for the purpose of returning him to his
parent or guardian or pending his
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16:30 Jan 13, 2017
Jkt 241001
transfer to the custody of a child welfare
or social service agency is not detained
or confined within the meaning of this
definition.
Dated: January 10, 2017.
Karol V. Mason,
Assistant Attorney General, Office of Justice
Programs.
[FR Doc. 2017–00740 Filed 1–13–17; 8:45 am]
BILLING CODE 4410–18–P
DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
31 CFR Part 538
Sudanese Sanctions Regulations
Office of Foreign Assets
Control, Treasury.
ACTION: Final rule.
AGENCY:
The Department of the
Treasury’s Office of Foreign Assets
Control (OFAC) is amending the
Sudanese Sanctions Regulations to
authorize all prohibited transactions,
including transactions involving
property in which the Government of
Sudan has an interest. OFAC is issuing
this general license in connection with
ongoing U.S.-Sudan bilateral
engagement and in response to positive
developments in the country over the
past six months related to bilateral
cooperation, the ending of internal
hostilities, regional cooperation, and
improvements to humanitarian access.
DATES: Effective: January 17, 2017.
FOR FURTHER INFORMATION CONTACT: The
Department of the Treasury’s Office of
Foreign Assets Control: Assistant
Director for Licensing, tel.: 202–622–
2480, Assistant Director for Regulatory
Affairs, tel.: 202–622–4855, Assistant
Director for Sanctions Compliance &
Evaluation, tel.: 202–622–2490; or the
Department of the Treasury’s Office of
the Chief Counsel (Foreign Assets
Control), Office of the General Counsel,
tel.: 202–622–2410.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Electronic Availability
This document and additional
information concerning OFAC are
available from OFAC’s Web site
(www.treasury.gov/ofac).
Background
OFAC is amending the Sudanese
Sanctions Regulations (the
‘‘Regulations’’) to add section 538.540,
authorizing all transactions prohibited
by the Regulations and by Executive
Orders 13067 and 13412, effective as of
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4793
January 17, 2017. Newly authorized
transactions include the processing of
transactions involving persons in
Sudan; the importation of goods and
services from Sudan; the exportation of
goods, technology, and services to
Sudan; and transactions involving
property in which the Government of
Sudan has an interest.
OFAC is issuing this rule in
connection with ongoing U.S.-Sudan
bilateral engagement and in order to
support and sustain positive
developments in the country over the
past six months. In conjunction with
this engagement, the U.S. government
has supported the Sudanese
government’s ongoing efforts, including
its cessation of military offensives in
Darfur and the Two Areas, its
cooperative efforts to resolve the
ongoing conflict in South Sudan and
cease any activity to undermine stability
there, to improve access for
humanitarian assistance by reducing
government obstruction and
streamlining governing regulations, and
to enhance bilateral counterterrorism
and security cooperation, including
efforts to counter the Lord’s Resistance
Army.
Notwithstanding these positive
developments in Sudan and the
decision to amend the Regulations today
to authorize all transactions prohibited
by the Regulations, section 906 of the
Trade Sanctions Reform and Export
Enhancement Act of 2000, as amended
(22 U.S.C. 7201 et seq.) (TSRA),
continues to require in pertinent part
that the export of agricultural
commodities, medicine, and medical
devices to Sudan shall be made
pursuant to one-year licenses issued by
the U.S. government, except that the
requirements of such one-year licenses
shall be no more restrictive than general
licenses administered by the
Department of the Treasury. See 22
U.S.C. 7205(a)(1). Section 906 of TSRA
also specifies that procedures be in
place to deny licenses for certain
exports of agricultural commodities,
medicine, and medical devices to
Sudan. As with a general license added
to the Regulations in 2011 that
authorized the exportation or
reexportation of food to Sudan (see 31
CFR 538.523; 76 FR 63191 (October 12,
2011)), the new general license added
today includes the one-year license
requirement and, along with counterterrorism sanctions implemented by
OFAC set forth in 31 CFR chapter V and
other continuing requirements and
authorities, satisfies TSRA’s
requirement that procedures be in place
to deny authorization for exports to
Sudan that are determined to be
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Agencies
[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
[Rules and Regulations]
[Pages 4783-4793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00740]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 31
[Docket No.: OJP (OJJDP) 1719]
RIN 1121-AA83
Juvenile Justice and Delinquency Prevention Act Formula Grant
Program
AGENCY: Office of Justice Programs, Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Juvenile Justice and Delinquency Prevention
(``OJJDP'') of the U.S. Department of Justice's Office of Justice
Programs (``OJP''), publishes this partial final rule to amend portions
of the formula grant program (``Formula Grant Program'') regulation to
reflect changes in OJJDP policy.
DATES: Effective Date: This rule is effective February 16, 2017.
FOR FURTHER INFORMATION CONTACT: Gregory Thompson, Senior Advisor,
Office of Juvenile Justice and Delinquency Prevention, at 202-307-5911.
SUPPLEMENTARY INFORMATION: The OJJDP Formula Grant Program is
authorized by the Juvenile Justice and Delinquency Prevention Act
(``JJDPA''). The JJDPA authorizes OJJDP to provide an annual grant to
each State to improve its juvenile justice system and to support
juvenile delinquency prevention programs. OJJDP published a notice of
proposed rulemaking on August 8, 2016, 81 FR 52377, that proposed to
revise the entirety of the Formula Grant Program regulation.
OJJDP is finalizing some, but not all, aspects of the proposed rule
here. For several provisions, OJJDP has addressed the comments received
and is amending the current Formula Grant Program regulation through
this partial final rule. For other provisions included in the proposed
rule, OJJDP received voluminous comments that will require additional
time for OJJDP to consider them thoughtfully. OJJDP anticipates
publishing a final rule in the future addressing the remainder of the
proposed changes that are not addressed in this partial final rule.
I. Executive Summary
A. Purpose of the Regulatory Action
The JJDPA authorizes annual formula grants to be made to States to
improve their juvenile justice systems and to support juvenile
delinquency prevention programs.\1\ See 42 U.S.C. 5631(a). OJJDP
promulgates this rule pursuant to the rulemaking authority granted to
the OJJDP Administrator (the Administrator) by 42 U.S.C. 5611(b).
---------------------------------------------------------------------------
\1\ Pursuant to 42 U.S.C. 5603(7), ``the term `State' includes
the District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Commonwealth of
Northern Mariana Islands.''
---------------------------------------------------------------------------
B. Summary of the Major Provisions of the Partial Final Rule
This rule amends the Formula Grant Program regulation in the
following respects: (1) It replaces 28 CFR 31.303(f)(6), which provides
standards for determining compliance with the
[[Page 4784]]
core requirements found at 42 U.S.C. 5633(a)(11), the
``deinstitutionalization of status offenders'' (DSO); 42 U.S.C.
5633(a)(12), ``separation''; and 42 U.S.C. 5633(a)(13), ``jail
removal''; (2) it provides a definition for the term ``detain or
confine,'' clarifying that the term refers to both the secure detention
and non-secure detention of juveniles; (3) it changes the deadline to
February 28th for States to report their compliance monitoring data for
the previous federal fiscal year and provides that the Administrator
may, for good cause, grant a State's request for an extension of the
February 28th reporting deadline to March 31st; (4) it requires that
States provide compliance data for 85% of facilities that are required
to report on compliance with the DSO, separation, and jail removal
requirements; and (5) it adds a requirement that States provide a full
twelve months' worth of compliance data for each reporting period.
C. Cost and Benefits
As noted in the preamble to the Notice of Proposed Rulemaking, it
is difficult to quantify the financial costs to States of the increased
monitoring and reporting requirements, and OJJDP did not receive any
comments from States indicating what those increased costs might be.
OJJDP expects, however, that those costs will be considerably lower
under this partial final rule than they would have been under the
proposed rule. For example, under the compliance standards in this
partial final rule, only eight States would be out of compliance based
on the fiscal year 2013 data, rather than the forty-eight States that
would have been out of compliance under the standards in the proposed
rule. In addition, in this partial final rule the revised definition of
``detain or confine'' clarifies, per the statute, that the term does
not apply to situations where juveniles are being held solely pending
their return to a parent or guardian or pending transfer to the custody
of a child welfare or social services agency. Nor (in keeping with the
statute) does it apply to situations where juveniles are held in a non-
secure area of a building that also houses an adult jail or lockup.
OJJDP expects that this clarification, along with the revised
definition, will greatly reduce the amount of data that States will
have to collect, compared to what they would have had to collect under
the proposed definition. Finally, although the proposed rule would have
required that 100% of facilities annually report compliance data, this
partial final rule provides that States must submit annual compliance
data from only 85% of those facilities.
II. Background
A. Overview
This rule amends the regulation implementing the JJDPA Formula
Grant Program at 28 CFR part 31, authorized by 42 U.S.C. 5631(a). This
section of the JJDPA authorizes OJJDP to provide an annual grant to
each State to improve its juvenile justice system and to support
juvenile delinquency prevention programs.
B. History of This Rulemaking
On August 8, 2016, OJP published a Notice of Proposed Rulemaking at
81 FR 52377, seeking comments on a rule that would have superseded the
current Formula Grant Program regulation at 28 CFR part 31 in its
entirety. The period for commenting on the proposed rule closed on
October 7, 2016. During that period, OJJDP received 72 written
comments, from a diverse array of respondents, representing State
entities that administer the JJDPA, child advocacy organizations,
public interest groups, and individuals.
Based on the volume and complexity of the comments received, OJP
has decided to publish a partial final rule to implement only some of
the provisions included in the proposed rule as amendments to the
current regulations. Many of the provisions included in the proposed
rule, and responses to comments regarding those provisions, will be
addressed in a future final rule, after further consideration.
Changes Proposed in the Proposed Rule That Are Being Finalized in the
Partial Final Rule \2\
---------------------------------------------------------------------------
\2\ Because this partial final rule amends only certain sections
of part 31, subpart A, rather than replacing the entire regulation
(as the proposed rule would have done), the section numbers of these
amended provisions correspond with the sections in the current
regulations.
---------------------------------------------------------------------------
1. The compliance standards included in section 31.9 of the
proposed rule for the DSO, separation, and jail removal requirements
have been significantly revised. This rule incorporates the revised
language by amending section 31.303(f)(6) of the current regulation,
through the adoption of a new methodology for determining the
compliance standards on an annual basis.
2. The requirement in section 31.7(d)(1) of the proposed rule that
States must annually submit compliance monitoring data from 100% of all
facilities that are required to report such data has been modified.
This rule amends section 31.303(f)(5) of the current regulations, such
that States will be required to report data for 85% of facilities and
demonstrate how they would extrapolate and report, in a statistically
valid manner, data for the remaining 15% of facilities.
3. Consistent with the requirement in section 31.8(a) of the
proposed rule, this rule amends section 31.303(f)(5) of the current
regulations to change the compliance data reporting period to the
federal fiscal year as required by the Act, at 42 U.S.C. 5633(c).
4. Instead of the proposed annual deadline of January 31st included
in section 31.8(b) of the proposed rule for States to submit their
compliance monitoring reports, this rule amends section 31.303(f)(5) of
the current regulations to change the deadline to February 28th, with a
provision allowing the Administrator to grant a one-month extension to
March 31st upon a State's showing of good cause.
5. This rule modifies the definition for ``detain or confine''
included in section 31.2 of the proposed rule. This rule adds this
definition in subsection 31.304(q) of the current regulations, and
clarifies that it does not apply to juveniles who are being held by law
enforcement solely pending their reunification with a parent or
guardian or pending transfer to the custody of a child welfare or
social services agency.
Changes Proposed in the Proposed Rule That Will Be Addressed in a
Future Final Rule
1. Proposed changes to the Disproportionate Minority Contact (DMC)
requirement;
2. Providing definitions for the following terms:
``Administrator'', ``alien'', ``annual performance report'',
``assessment'', ``authorized representative'', ``compliance monitoring
report'', ``construction fixtures'', ``contact between juveniles and
adult inmates'', ``convicted'', ``core requirements'', ``designated
state agency'', ``DMC requirements'', ``DSO requirements'', ``extended
juvenile court jurisdiction'', ``full due process rights guaranteed to
a status offender by the Constitution of the United States'', ``jail
removal requirements'', ``juvenile'', ``juveniles alleged to be or
found to be delinquent'', ``juveniles who are accused of nonstatus
offenses'', ``minority groups'', ``monitoring universe'', ``non-secure
facility'', ``placed or placement'', ``public holidays'',
``residential'', ``responsible agency official'', ``separation
requirements'', ``status offender'', ``status offense'', ``twenty-four
hours'';
[[Page 4785]]
3. Proposed deletion of text in the current regulation that is
repetitive of statutory provisions;
4. Proposed deletion of the Federal wards provision in the current
regulation;
5. Proposed deletion of provisions in the current regulation
rendered obsolete by the 2002 JJDPA reauthorization;
6. Proposed deletion of requirements in the current regulation not
specific to the formula grant program and are found elsewhere such as
in the Uniform Administrative Requirements, Cost Principles and Audit
Requirements for Federal Awards, at 2 CFR part 200;
7. Proposed deletion of provisions that describe recommendations
rather than requirements;
8. Proposed deletion of provisions that are unnecessary or
duplicative of the formula grant program solicitation;
9. Prohibited discrimination provision (Sec. 31.4 in the proposed
rule) (i.e., the non-discrimination provision at 28 CFR 31.403--``Civil
rights requirements''--remains in effect);
10. Proposed formula allocation (Sec. 31.5 in the proposed rule)
(which would not alter the formula described in the Act at 42 U.S.C.
5632, but would simply require that a State's annual allocation be
based on data available from the U.S. Census Bureau);
The proposed provision (Sec. 31.8(c) in the NPRM) requiring that a
designated State official certify that the information in the State's
compliance monitoring report is correct and complete is not being
codified in this partial final rule, but this certification is already
required under OJJDP's current policy on ``Monitoring of State
Compliance with the Juvenile Justice and Delinquency Prevention Act.''
\3\
---------------------------------------------------------------------------
\3\ In any event, the report itself is subject to the False
Statements Act, 18 U.S.C. 1001, as a matter of course.
---------------------------------------------------------------------------
III. Discussion of Comments and Changes Made by This Rule
A. Compliance Standards
Based heavily on feedback from commenters, and in conjunction with
statisticians in OJP's Bureau of Justice Statistics, OJJDP has
developed new compliance standards using the distribution of compliance
rates reported in States' compliance monitoring reports. The compliance
standards included in section 31.303(f)(6) of this rule are
significantly different from the standards contained in section
31.303(f)(6) of the current formula grant program regulations, as well
as from those in the proposed rule. OJJDP believes that the methodology
for establishing new compliance standards included in this partial
final rule fully addresses the concerns raised by commenters, which are
discussed more fully below.
1. Revised Methodology for Determining Compliance Standards
In determining the compliance standards, the distribution of each
set of compliance rates (i.e., for DSO, separation, and jail removal)
using the average of two or more years of data (removing, when
appropriate and applicable, one negative outlier each for DSO,
separation, and jail removal) and applying a standard deviation factor
of not less than one, will be analyzed to determine its mean, and
standard deviations therefrom.
As provided in the final rule, section 31.303(f)(6) provides that,
based on this information, a compliance rate that is not less than one
standard deviation above the mean rate will be set as the compliance
standard. Once established, the standards will be posted annually (in
numerical form) on OJJDP's Web site by August 31 of each year. Any
State that reports a compliance rate above this compliance standard
will be determined to be out of compliance. This methodology will not
be applied, however, to States' FY 2016 and FY 2017 compliance
monitoring reports, in order to allow for a transition period.
2. Standard for Determining Compliance Based on States' FY 2016
Compliance Data
Under the revised methodology described above, only data from
Calendar Year (CY) 2013 will be used to establish standards for making
compliance determinations based on States' FY 2016 annual monitoring
reports (affecting the FY 2017 awards). After removing one negative
outlier from the DSO distribution (with a rate of 70.16 per 100,000
juvenile population), one negative outlier from the separation
distribution (with a rate of 2.82 per 100,000 juvenile population), and
one negative outlier in the jail removal distribution (with a rate of
82.8 per 100,000 juvenile population), the means without the negative
outliers, the standard deviations, and what the compliance standards
would be, based on two standard deviations above the means, is
presented in the table below:
----------------------------------------------------------------------------------------------------------------
Compliance
Core requirement Current compliance Mean without Standard standard (two SD
standard negative outlier deviation (SD) from mean)
----------------------------------------------------------------------------------------------------------------
DSO................................ At or below 5.8, 5.9 2.85 6.37 9.89
to 17.6, 17.7 to
29.4.
Separation......................... 0 (with exceptions).. 0.04 0.16 0.28
Jail Removal....................... At or below 9........ 2.38 5.66 8.94
----------------------------------------------------------------------------------------------------------------
After removing the negative outlier from data for each of the three
core requirements, the average rate, per 100,000 juvenile population,
would be 2.85 for DSO, 0.04 for separation, and 2.38 for jail removal.
Applying a standard deviation factor of 2 to each of these averages
results in a final rate, per 100,000 juvenile population, of 9.89 for
DSO, 0.28 for separation, and 8.94 for jail removal. States would need
to be at, or below, these rates for OJJDP to find them in compliance
with the DSO, separation, and jail removal core requirements.
As provided in this rule, amending section 31.303(f)(6) of the
current regulation, OJJDP will employ the methodology described above
in establishing annual compliance standards for DSO, separation, and
jail removal core requirements for determinations based on States' FY
2016 data. Immediately following the publication of this partial final
rule, OJJDP will post the standards for determining compliance with the
DSO, separation and jail removal requirements, which will be derived
from CY 2013 data and will be used in making compliance determinations
based on States' FY 2016 compliance monitoring reports. These
determinations will serve as the basis for establishing whether States
will receive their full FY 2017 formula grant
[[Page 4786]]
allocation or their awards will be reduced for non-compliance.
3. Standard for Determining Compliance Based on States' FY 2017
Compliance Data
As provided in this rule, amending section 31.303(f)(6), in
establishing compliance standards to apply to the FY 2017 compliance
data (affecting the FY 2018 awards), OJJDP will take the average of the
combined CY 2013 and FY 2016 compliance data (removing, when
appropriate/applicable, one negative outlier in each data collection
period for DSO, separation, and jail removal) and apply a standard
deviation factor of not less than one to establish the compliance
standards to be applied to the FY 2017 compliance monitoring reports.
This methodology, which may result in compliance standards' being
adjusted from one year to the next, recognizes the difficulty that
States' face in preventing all instances of non-compliance with each
core requirement and allows a State that reports a minimal number of
such instances to be found in compliance and to continue to receive its
full formula grant allocation.
------------------------------------------------------------------------
Applied to
Data used to establish compliance Affecting fiscal
compliance standards monitoring report year title II
year allocation
------------------------------------------------------------------------
CY 2013..................... FY 2016 FY 2017
CY 2013 and FY 2016......... FY 2017 FY 2018
FY 2016 and FY 2017......... FY 2018 FY 2019
FY 2017 and FY 2018......... FY 2019 FY 2020
------------------------------------------------------------------------
4. Comments on Proposed Compliance Standards
OJJDP received numerous comments on the methodology for
establishing the compliance standards in the proposed rule, and on the
resulting standards published in the proposed rule. Commenters
questioned the data used, the methodology employed to establish the
standards, and the lack of opportunity to provide supporting
documentation to address compliance deficiencies; they also raised the
possibility of withdrawing from participation in the Formula Grant
Program. Based on these comments, OJJDP has revised the compliance
standards in the partial final rule, as discussed below, following a
summary of the comments received.
A number of commenters raised concern with using data from only
three States with the lowest rates of compliance, from each of the four
Census Bureau regions. Several commenters also made the point that the
data used in calculating the proposed compliance standards (CY 2013),
did not include data based on the new guidance for ``detain or
confine,'' rendering the calculation unfair, arbitrary, rigid, and
extreme. In addition, several States suggested that in calculating a
rate for the compliance standards, OJP should use the average of two or
three years of data from all States, and those data should include data
based on the ``detain or confine'' guidance.
A number of commenters stated that it would be unfair not to allow
States to provide additional documentation demonstrating how they would
address violations as they occur, in order to demonstrate compliance.
For example, under the current compliance standards for DSO and jail
removal, a State whose rate puts it out of compliance in principle
could nevertheless demonstrate compliance with the de minimis standard
by providing additional documentation (i.e., recent passage of state
law, or executive or judicial policy; or submission of an acceptable
plan to eliminate the instances of non-compliance), that would allow it
to be found in compliance.
Additionally, many commenters stated that if their State incurred
just one DSO, separation, or jail removal violation, the State would be
out of compliance under the proposed standards, resulting in a
reduction of their formula grant allocation by 20% for each requirement
with which the State is out of compliance. In addition, the State would
be required to expend 50% of its remaining allocation to achieve
compliance.
In response, although the current regulation permits States with a
certain number of instances of non-compliance nevertheless to be found
in compliance with the de minimis standards by providing additional
documentation, OJJDP believes that the elimination of the subjective
nature of this de minimis review will allow for a clearer and more
objective process by which compliance determinations will be made.
OJJDP appreciates the thoughtful and detailed comments regarding
the methodology used to establish the proposed compliance standards for
the DSO, separation, and jail removal core requirements. OJJDP agrees
that using data from all States, not just three States with the lowest
violation rates, from each of the four Census Bureau regions, would
provide for a more representative and balanced approach for
establishing compliance standards.
5. States' Withdrawal From Participation in the Formula Grant Program
Several States questioned whether they would continue to
participate in the Formula Grant Program, should the proposed
compliance standards be implemented. It has never been OJJDP's
intention to implement compliance standards that would discourage
States' participation in the Formula Grant Program. OJJDP believes that
the methodology described in this partial final rule to establish
annual compliance standards is responsive to comments received and will
encourage States' continued participation in the Formula Grant Program.
B. Revised Definition of ``Detain or Confine''
The partial final rule contains a definition for the term ``detain
or confine'' in section 31.304(q) that differs in some respects from
what was in the proposed rule. In response to the many comments
received, OJJDP has revised the definition in two key respects: To
clarify that (1) a juvenile who was not actually free to leave was
``detained,'' regardless of whether he believed he was free to leave;
and (2) juveniles who are being held by law enforcement personnel for
their own safety, and pending their reunification with a parent or
guardian or pending transfer to the custody of a child welfare or
social service agency, are not ``detained or confined'' within the
meaning of the JJDPA.
OJJDP recognizes that the definition in the proposed rule may not
have made sufficiently clear that the primary question in determining
whether a juvenile was detained is whether he was, in fact, free to
leave. If law
[[Page 4787]]
enforcement personnel would not have allowed the juvenile to leave, he
was necessarily being detained, and there is no need to inquire as to
whether he believed he was free to leave. For this reason, OJJDP has
revised the definition to indicate that ``detain or confine'' means to
hold, keep, or restrain a person such that he is not free to leave. If
law enforcement personnel indicate that the juvenile was free to leave,
it would be incumbent upon them to explain how/why the juvenile would
have understood that he was free to leave.
This revised definition also allows law enforcement to hold
juveniles who (for example) are runaways, abandoned, endangered due to
mental illness, homelessness, or drug addiction, or are victims of sex
trafficking or other crimes, held pending their return to their parent
or guardian or while law enforcement locates a safe environment in
which to place them. In such instances, juveniles would not be
considered to be ``detained or confined'' at all.
Before addressing the specific comments regarding the definition of
``detain or confine'' that was included in the proposed rule, OJJDP
offers additional clarification of the impact of the definition of
``detain or confine,'' as used in the separation and jail removal
requirements at 42 U.S.C. 5633(a)(12) and (13), respectively. First,
those core requirements are applicable only in specific types of
facilities. In determining whether there has been an instance of non-
compliance with either of these core requirements, it is critical to
note that the threshold inquiry must be ``In what type of facility was
the juvenile held?'' An instance of non-compliance with the separation
requirement can occur only in secure facilities in which juveniles have
sight and sound contact with adult inmates.\4\ An instance of non-
compliance with the jail removal requirement can occur only in a jail
or lockup for adults, as defined at 42 U.S.C. 5603(22). If the juvenile
was not held in one of these types of facilities, the inquiry ends
there, and there can be no instance of non-compliance. Only if the
facility is a jail or lockup for adults or is a secure facility or a
secure area within a facility in which adult inmates are detained must
it be determined whether the juvenile was detained or confined therein.
For this reason, States need not monitor and report on ``Terry''
investigative stops on the street or instances in which juveniles are
detained within a public or private school, or anywhere other than a
jail or lockup for adults, or a secure facility in which adult inmates
are detained or confined.
---------------------------------------------------------------------------
\4\ Under 42 U.S.C. 5633(a)(12), the separation requirement is
implicated when a juvenile is detained or confined in any
institution in which he has contact with an adult inmate.
``Contact'' is defined at 42 U.S.C. 5603(25) as ``the degree of
interaction allowed between juvenile offenders in a secure custody
status and incarcerated adults'' under 28 CFR 31.303(d)(1)(i)
(emphasis added). In turn, section 31.303(d)(1)(i) states: ``A
juvenile offender in a secure custody status is one who is
physically detained or confined in a locked room or other area set
aside or used for the specific purpose of securely detaining persons
who are in law enforcement custody'' (emphasis added). Read
together, these provisions indicate that ``institution'' as used in
the separation requirement must be understood to be a secure
facility.
---------------------------------------------------------------------------
OJP received many questions regarding whether specific scenarios
would constitute a juvenile's being detained or confined, under the
definition in the proposed rule. Because these were questions, rather
than comments on the proposed rule, OJJDP will address them through
guidance on OJJDP's Web site. OJJDP also encourages States to submit
any additional questions about specific fact patterns, which will be
posted along with answers on OJJDP's Web site.
Comment That OJP Is Incorrectly Using ``Miranda'' Standards in Defining
``Detain or Confine''
Several commenters objected to OJJDP's adherence to Fourth
Amendment jurisprudence in determining an appropriate definition of the
phrase ``detain or confine.''
In response, despite these commenters' opinions to the contrary,
Fourth Amendment jurisprudence is applicable in the context of defining
``detain or confine'' for the purposes of the JJDPA, as the plain
language of that phrase references the restraining of an individual's
(in this context, a juvenile's) liberty, which, as the U.S. Supreme
Court noted in U.S. v. Mendenhall, 446 U.S. 544, 552 (1980), is the
very definition of a ``seizure.'' \5\ Thus, OJJDP does not agree with
the argument that the application of Fourth Amendment jurisprudence
generally, and/or the standards set forth in Mendenhall specifically,
is improper.
---------------------------------------------------------------------------
\5\ As noted in the proposed rule, per U.S. v. Mendenhall, the
Fourth Amendment governs all ``seizures'' of the person, ``including
seizures that involve only a brief detention short of traditional
arrest.'' See 446 U.S. 544, 547 (1980). Further, a ``seizure'' for
the purposes of the Fourth Amendment has occurred when an officer
``by means of physical force or a show of authority, has in some way
restrained the liberty of a citizen.'' Id. at 548.
---------------------------------------------------------------------------
Moreover, while OJJDP recognizes that Mendenhall was in fact a case
involving an adult, the U.S. Supreme Court has never limited the Fourth
Amendment protections enumerated therein to the adult population.
Indeed, the U.S. Supreme Court has consistently recognized that, due to
the inherent differences between adults and juveniles (in terms of
maturity and reasoning), juveniles should, in certain circumstances, be
afforded more protections than adults would be. One such example is the
U.S. Supreme Court's decision in J.D.B. v. North Carolina, 564 U.S. 261
(2011). Contrary to some commenters' understanding, J.D.B. v. North
Carolina did not establish a de facto ``reasonable minor'' standard for
determining juvenile custody that was somehow separate from the
standard established in Mendenhall. Rather, the Supreme Court's
decision in J.D.B.--that a juvenile's age may affect his or her
perception(s) of his or her interactions with law enforcement, and a
juvenile's age, therefore, must be one of many factors considered in
any determination of whether the interrogation of the juvenile was a
``custodial interrogation'' for the purposes of Miranda warnings--was
an explicit acknowledgement that Fourth Amendment protections espoused
in Mendenhall not only extend to juveniles, but actually may be
expanded under some circumstances where juveniles are concerned.
Nonetheless, OJJDP has considered the commenters' stated objections to
the application of Fourth Amendment jurisprudence and has revised the
definition to clarify that whether the juvenile is, in fact, free to
leave is the critical factor in determining whether he is detained. If
he is not, in fact, free to leave, as OJJDP expects will be the case in
the vast majority of instances, he is detained.
Comments Received Regarding Proposed Definition of ``Detain or
Confine''
One commenter questioned the reason for the proposed definition,
stating that there has been either no research or at least no broadly
published research that a significantly widespread problem exists that
supports the implementation of the new definition.
In response, OJJDP notes that the purpose of including the
definition of ``detain or confine'' in the proposed rule, and in the
partial final rule, is to clarify that the separation and jail removal
requirements are implicated when a juvenile is detained in certain
settings, regardless of whether he is ``securely'' detained. As noted
above, the word ``detain'' has a plain meaning in 4th Amendment
jurisprudence. Under that jurisprudence, one can be detained without
being ``securely'' detained such as by a show of authority.
[[Page 4788]]
(Terry v. Ohio, 392 U.S. 1, 20, n.16 (1968)). Therefore, the absence of
the word ``securely'' before ``detain'' in the JJDPA indicates that, on
its face, the statutory term is not limited to juveniles who are
``securely'' detained. Consistent with the definition of ``detain or
confine'' in the proposed rule, and with the revised definition
included in this partial final rule, the current regulation is being
amended by removing the word ``securely''. To understand ``detained''
to refer only to juveniles who are ``securely'' detained would be to
read a word into the statute that is simply not there.
Several commenters contended that the proposed definition of
``detain or confine'' is contrary to the intent of the drafters of the
JJDPA, which was to protect juveniles held in secure custody. Because
the term ``detain or confine'' is itself unambiguous, there is neither
room for interpretation of the term nor warrant to attempt to
determine--beyond what the plain text of the statute itself indicates--
the ``intent'' of the drafters. Thus, OJJDP has not changed the
definition to mean only secure detention.\6\
---------------------------------------------------------------------------
\6\ A juvenile could be non-securely detained in a secure
facility or secure area of an adult jail or lockup. For instance,
the juvenile might physically be in the jail or lockup area, sitting
in a chair without handcuffs or other restraints, but ``detained''
as the result of a show of authority by a law enforcement official
present, making it clear the juvenile is not free to leave, which
would result in an instance of non-compliance with the jail removal
and possibly separation requirements.
---------------------------------------------------------------------------
One commenter suggested that OJJDP is proposing a new definition of
``detain or confine,'' in order to address problems in select
jurisdictions, and that research should be conducted to determine the
extent of the problem of ``youth languishing in law enforcement custody
in a non-secure environment.'' In response, OJJDP believes that the
commenter misunderstood the purpose for the inclusion of this
definition, which is not to address concerns within specific
jurisdictions, but to conform more closely to the JJDPA and to clarify
for all jurisdictions the plain meaning of the term used in the
statute.
Concern About Law Enforcement's Ability To Detain Juveniles
Temporarily, for Their Own Safety
Many commenters recommended that OJJDP maintain the current
definition of ``detain or confine,'' which requires the physical
restraint of a juvenile in a holding cell or locked interview room or
by cuffing to a stationary object, because that would allow law
enforcement to continue to detain a juvenile non-securely in a law
enforcement facility for his own safety, and pending his return to his
parent or guardian, without its resulting in an instance of non-
compliance. Several commenters also stated that the proposed definition
would give law enforcement the incentive to charge juveniles with a
delinquent offense, or to charge them as adults because States could
then detain them securely without a resulting instance of non-
compliance.
In response, as explained above, OJJDP's revised definition in this
rule clarifies that when law enforcement personnel are holding a
juvenile only pending his return to his parent or guardian or pending
his transfer to the custody of a child welfare or social service
agency, he is not detained. OJJDP believes that the revised definition
will allay the concerns raised by many commenters that under the
proposed definition of ``detain or confine,'' law enforcement would
have a disincentive to bring status offenders or non-offenders (such as
runaways) to a law enforcement facility to hold them until a parent or
guardian could pick them up.
One commenter requested that OJJDP clearly specify who qualifies as
a parent or guardian, but that is a determination that should be made
according to the law of the relevant State.
Several commenters questioned whether liability would attach if law
enforcement personnel were to tell a juvenile that he was free to leave
a law enforcement facility, the juvenile did leave the law enforcement
facility, and as a result the juvenile suffered some harm. OJP believes
it would not be appropriate for OJP to provide legal advice to States
as to whether law enforcement personnel or a law enforcement agency
could be held liable in such a situation.
How will law enforcement know what a juvenile reasonably believes?
Many commenters stated that the proposed definition of ``detain or
confine'' is vague, ambiguous, or confusing in that it is difficult to
know whether a juvenile in a particular situation would have understood
that he was free to leave. Several commenters also stated that the
proposed definition is too subjective and will make it extremely
difficult for law enforcement to know when a juvenile is being
``detained'' for purposes of the Formula Grant Program.
OJJDP disagrees that the definition is vague, ambiguous or
confusing. As noted above, the key question is whether the juvenile
was, in fact, free to leave the law enforcement facility, because the
juvenile's state of mind is irrelevant if he was not free to leave.
Under the revised definition in this partial final rule, it is only in
instances where law enforcement personnel assert that the juvenile
actually was free to leave that the inquiry next proceeds to whether
the juvenile understood that he was free to leave. Contrary to the
commenters' assertions, however, this second inquiry does not
necessitate that law enforcement ``read the minds of juveniles'' or
determine whether a ``reasonable juvenile'' would have felt free to
leave. Rather, in keeping with applicable Fourth Amendment
jurisprudence, this second determination requires an objective
examination of the circumstances surrounding the juvenile's interaction
with law enforcement, including any circumstance that would have
affected how a reasonable person in the juvenile's position would
perceive his or her freedom to leave. Because a juvenile's age may
affect how a reasonable person in his position would perceive his
freedom to leave, consistent with U.S. Supreme Court precedent, where
the juvenile's age is known to law enforcement, it must be a factor
that is taken into consideration in making the determination. See
J.D.B., 564 U.S. at 275-77. It bears noting that the juvenile's age may
not be determinative, or even a significant factor, in every case; but
it is one objective factor that must be taken into consideration, along
with other objective factors such as the location(s) of the juvenile's
interaction(s) with law enforcement, the duration of law enforcement's
interaction(s) with the juvenile, the number of law enforcement
officers present during the interaction(s), and any other circumstances
surrounding the juvenile's time in the presence of law enforcement that
may inform a determination as to whether the juvenile understood he was
free to leave.
One commenter stated that whether a juvenile believes he is free to
leave is irrelevant to whether he is protected from potential harm by
being in contact with an adult inmate. The same commenter stated that
law enforcement personnel have the ability ``simply by their presence .
. . [to] limit conversation or other interaction between the juvenile
and any adult inmate, thus limiting potential for harm.'' In response,
OJJDP believes that the commenter's quarrel is with the JJDPA itself.
By its express terms, the statute's separation requirement is
implicated when a juvenile is detained or confined in any institution
in which he has contact with an adult inmate, regardless of whether law
enforcement
[[Page 4789]]
personnel are present and able to limit his interaction with an adult
inmate.
How will law enforcement document whether a juvenile knew that he was
free to leave?
At least one commenter noted that the proposed definition of
``detain or confine'' would cause a burden to law enforcement and
complicate compliance monitoring activity, noting it will be cumbersome
for law enforcement officers to collect relevant information every time
a juvenile is brought to their departments. Additionally, several
commenters questioned how law enforcement would document whether a
juvenile knew that he was free to leave. In the preamble to the
proposed rule, OJJDP gave as an example that law enforcement could
produce a video recording of the juvenile indicating that he understood
that he was free to leave. Commenters stated that requiring law
enforcement personnel to make such a video recording is impractical and
cost-prohibitive. OJJDP understands the additional burden that would
create for a law enforcement agency. A more practical method of
indicating that a juvenile understood that he was free to leave would
be for law enforcement personnel to have the juvenile sign a form
indicating that he understood he was free to leave, or for a law
enforcement official to sign a form certifying that the juvenile was
advised that he was free to leave.
One commenter expressed concern that juveniles who would not
otherwise have their information put into a law enforcement database
might now be entered into the system. We note that States could use
paper forms that would be made available to the State's compliance
monitor but need not be entered into any law enforcement computer
system.
Applicability of Term ``Detain or Confine'' to the DSO Requirement
Several commenters questioned the use of the term ``detain or
confine'' within the context of the DSO requirement. The commenter is
correct that, unlike the separation and jail removal requirements, in
which the term ``detain or confine'' is used, the DSO requirement is
implicated when a juvenile is ``placed'' in a secure detention or
secure correctional facility. The commenter asserted that the use of a
different term--``placed''--for the DSO requirement--thus indicates
that the term means something other than simply ``detained or
confined.''
In response, OJJDP notes that the ``placement'' of a juvenile in a
secure detention or secure correctional facility means, at a minimum,
that he is not free to leave and is, therefore detained (and confined).
Therefore, a juvenile who has been ``placed'' has necessarily been
``detained or confined.''
In the proposed rule, for the purposes of determining whether the
DSO requirement would be applicable, OJJDP had included a proposed
definition of the term ``placed or placement'' to clarify that it would
refer, not to mere ``detention or confinement,'' but to circumstances
where detention or confinement within a secure juvenile detention or
correctional facility has resulted in a ``placement.'' Many commenters
noted concerns about the proposed definition of ``placed or
placement.'' The partial final rule does not include a definition of
``placed or placement.'' This issue will be addressed in a future final
rule, and OJJDP will respond to all comments regarding this issue in
detail in the subsequent final rule.
Whether a Juvenile's Participation in a ``Scared Straight'' or ``Shock
Incarceration'' Program Would Result in Non-Compliance With the Jail
Removal and/or Separation Requirements
A commenter questioned whether, under the proposed rule, a juvenile
under public authority could be required to participate in a ``Scared
Straight'' or ``shock incarceration'' program in which he is brought
into contact with an adult within an adult jail or lockup or in a
secure correctional facility for adults, as a means of modifying his
behavior. The commenter asked whether such participation would result
in an instance of non-compliance with the jail removal and/or
separation requirements when a parent has consented to the child's
participation in the program, or in an instance in which the juvenile
who is participating in the program as a form of diversion fails to
complete the program and the original charge is reinstated. The
commenter is apparently questioning whether the voluntariness of a
juvenile's participation, and whether there would be consequences for
not participating, in such a program would determine whether or not he
was ``detained'' within sight or sight or sound contact of an adult
inmate, resulting in an instance of non-compliance.
In response, OJJDP notes that whether such programs may result in
instances of non-compliance with the separation and/or jail removal
requirements will depend on the specific manner in which the program
operates and the circumstances of the juveniles' participation in the
program. A key factor in determining whether instances of non-
compliance have occurred is whether juveniles participating in the
program were free to leave the program while in sight or sound contact
with adult inmates, regardless of whether the juvenile's initial
participation was voluntary. If a parent or guardian has consented to
his child's participation and may withdraw that consent at any time,
the juvenile is not detained. States are encouraged to contact OJJDP
for guidance about whether a particular program is resulting in--or has
resulted in--instances of non-compliance. Generally speaking, if a
juvenile participates in a program as a condition of diversion from the
juvenile justice system, and does so with a parent's or guardian's
consent, he is not detained, regardless of whether his failure to
complete the program would result in the reinstatement of a charge
against him.
Applicability of Proposed Definition of ``Detain or Confine'' to the
Six-Hour Exception in the JJDPA at 42 U.S.C. 5633(a)(13)(A)
Several commenters questioned how the proposed definition would
apply to the provision allowing States to detain an accused delinquent
offender for up to six hours for processing or release, while awaiting
transfer to a juvenile facility, or in which period such juveniles make
a court appearance, without a resulting instance of non-compliance. In
response, OJJDP believes that no change in the final definition is
needed in response to this comment. The definition in this rule would
not alter the JJDPA exception at 42 U.S.C. 5633(a)(13)(A) that allows
States to detain an accused delinquent offender for up to 6 hours for
those purposes.
Applicability of Proposed Definition of ``Detain or Confine'' to
Juveniles Under Criminal Jurisdiction
One commenter stated that there should be an exception to the
application of the proposed definition of ``detain or confine'' for
juveniles waived or transferred to a criminal court. In response, OJJDP
believes that no change in the final definition is needed in response
to this comment. The core requirements do not apply to juveniles who
are under criminal court jurisdiction.
Recommending a ``Rural Exception'' to the New Definition
Another commenter recommended that if OJJDP decides to alter the
current definition of ``detain or confine'', it should create a ``rural
exception'' to the rule that would allow non-metropolitan areas to
continue to use the current
[[Page 4790]]
definition. OJJDP has no authority under the JJDPA to allow certain
States or localities to use a different definition of the term ``detain
or confine.''
Proposed Alternative Definition of ``Detain or Confine''
One commenter recommended that OJJDP remove the word ``detain''
from the definition and focus only on the confinement of juveniles,
which the commenter asserts would be consistent with guidance provided
in a memo from the OJJDP Administrator dated February 13, 2008. The
Administrator's memorandum discusses the definition of an adult lockup,
relevant to determining the facilities in which an instance of non-
compliance with the jail removal requirement can occur. In response,
OJJDP believes that no change in the definition is needed in response
to this comment. The instances of non-compliance with the jail removal
requirement addressed in the Administrator's memorandum can occur only
in facilities that meet the definition of a ``jail or lockup for
adults'' as defined in the JJDPA at 42 U.S.C. 5603(22). That definition
requires that the facility must be a ``locked facility.'' Thus,
instances of non-compliance with the jail removal requirement cannot
occur in non-secure facilities. Nor, as discussed above, would a
juvenile's detention in the non-secure portion of a law enforcement
facility implicate the jail removal requirement.
Whether the Definition of ``Detain or Confine'' Will Expand the
Monitoring Universe
Many commenters expressed concerns about whether the proposed rule
would expand the types of facilities that must be included in the
monitoring universe. In response, OJJDP has concluded that the
definition of ``detain or confine'' in this final rule does not expand
the current monitoring universe and that no change in the definition in
the final rule is needed in response to this comment. Under OJJDP's
current guidance, the following facilities must be monitored: Adult
jails and lockups, secure detention facilities, secure correctional
facilities, court holding facilities, and collocated facilities (which
includes facilities previously listed). Non-secure facilities must be
monitored periodically to ensure that they have not changed
characteristics such that they have become secure facilities. OJJDP
will respond to all comments regarding the scope of the monitoring
universe in greater detail in the subsequent final rule that will be
published in the future with respect to matters not covered in this
partial final rule.
What data are expected for a compliance monitor to collect in order to
monitor adequately?
Many commenters questioned what additional data would be required
under the proposed definition of ``detain or confine,'' and how those
data should be collected. Under the proposed rule, as well as under the
revised definition in this rule, law enforcement personnel in adult
jails and lockups and other secure facilities in which both juveniles
and adult inmates are detained, would be required to keep logs
regarding juveniles who are detained securely and non-securely (and not
merely those securely detained, as States have done previously). It is
important to note here that such logs should not include juveniles
detained--either securely or non-securely--in a non-secure area of a
law enforcement facility, as the separation and jail removal
requirements are not applicable in that context. It should be stressed
here that the revised definition of ``detain or confine'' in this final
rule does not include juveniles who are held solely pending return to
their parents or guardians or pending transfer to a social service or
child welfare agency, thus eliminating the need for States to collect
data on juveniles held for these reasons. Similarly, law enforcement
personnel in institutions (secure facilities) in which (1) accused or
adjudicated delinquent offenders, (2) status offenders, and (3) non-
offenders who are aliens (or are alleged to be dependent, neglected, or
abused) might have contact with adult inmates, would be required to
keep logs on when such juveniles did, in fact, have contact with adult
inmates.
Need for Training and Technical Assistance
Several commenters expressed concern that OJJDP has not provided
any training on the implementation of the ``detain or confine''
guidance, stating that it is unrealistic to expect States to apply this
new guidance until appropriate training and technical assistance has
been provided. Other commenters stated that it would be cost-
prohibitive for States to provide such training to law enforcement
personnel. Another commenter suggested that OJJDP should highlight
successful models both for determining in what common situations a
juvenile would likely believe he is not free to leave as well as
examples of best practices for States with rural and/or diffuse
populations.
In response, OJJDP intends to provide additional guidance materials
regarding implementation of the proposed definition of ``detain or
confine'' and is also planning to provide States with training in 2017
on how to monitor for, and collect and report data on compliance in
accordance with that definition.
C. Requirement That 100% of Facilities Must Report Compliance Data
Many commenters expressed concern about the proposed requirement
that 100% of facilities in their States be required to report annual
compliance data.\7\ Commenters expressed concern that it would not be
possible to achieve the 100% threshold, raising a number of challenges
they would face in collecting data from 100% of the facilities in their
States, including lack of legislative authority, time constraints, and
an increase in associated costs.
---------------------------------------------------------------------------
\7\ This requirement was included in OJJDP's Policy: Monitoring
of State Compliance with the Juvenile Justice and Delinquency
Prevention Act, provided to States in October 2015.
---------------------------------------------------------------------------
In response, OJJDP believes that many of the commenters' concerns
may have arisen from the belief that the proposed rule would have
expanded the monitoring universe to include additional facilities with
respect to which States are not currently collecting data. As discussed
above, under the proposed rule and, more importantly, under this
partial final rule, the monitoring universe does not change, and States
will continue to be required to monitor adult jails and lockups, secure
detention facilities, secure correctional facilities, and any other
institutions (secure facilities) in which juveniles might have contact
with adult inmates. (States must also continue to monitor non-secure
facilities to ensure that they have not changed physical
characteristics such that they have become secure facilities.)
A few commenters suggested that the number of facilities that must
report be reduced. (Various commenters respectively suggested 85%, 90%,
or 95% as being a more practical requirement than the 100% level in the
proposed rule.) In response, OJJDP acknowledges and understands the
challenges described by the States in their comments, and this partial
final rule has revised the proposal, so that States will be required to
collect and report compliance data for 85% of facilities and to
demonstrate how they would extrapolate and report, in a statistically
valid manner, data for the remaining 15% of facilities.
Under the JJDPA at 42 U.S.C. 5633(a)(14), the state plan that each
[[Page 4791]]
State must submit in order to be eligible for Formula Grant Program
funding must ``provide for an adequate system of monitoring jails,
detention facilities, corrections facilities, and non-secure facilities
to insure that the [DSO, separation, and jail removal requirements] are
met, and for annual reporting of the results of such monitoring to the
Administrator.'' (Emphasis added.) The statutory provision does not
specifically require reporting from 100% of facilities in a State's
annual monitoring report, thus giving OJJDP the administrative
discretion to permit States to report for less than 100% of all
facilities in the State, provided that its monitoring system be
adequate. It is in the exercise of this same administrative discretion
that OJJDP for decades used (and promulgated in its regulations for
this program) various de minimis standards that allowed for less than
full compliance by States under appropriate circumstances. Cf.
Washington Red Raspberry Comm'n v. United States, 859 F. 2d 898, 902
(Fed. Cir. 1988) (``The de minimis concept is well-established in
federal law. Federal courts and administrative agencies repeatedly have
applied the de minimis principle in interpreting statues, even when
Congress failed explicitly to provide for the rule.'')
A few commenters indicated concern with the ``good cause'' standard
in the proposed rule allowing for waiver of the proposed requirement
for States to report data from 100% of facilities. In response, OJJDP
notes that the reduction from 100% to 85% of the number of facilities
required to report eliminates the need for a waiver exception to the
reporting requirement, and that proposal is not included in this final
rule.
D. Issues Relating to Reporting Compliance Data for Core Requirements
1. Reporting of Compliance Data Based on Federal Fiscal Years and
Deadline for Reporting Compliance Data
Many commenters objected to the language in the proposed rule
requiring that States provide compliance data on a fiscal-year basis,
because of the shortened period States will have for submitting
compliance data from the time the reporting period ends on September
30th of each year and the proposed deadline of January 31st for
submitting their data. A few commenters noted that the period in which
States will be collecting and verifying their data includes several
holidays during which staff often take leave and also occurs during a
period in which weather conditions make travel difficult within many
States.
Additionally, commenters expressed concern that this shortened
timeframe would present significant challenges to submission of
accurate data (especially in light of the requirement to collect data
from 100% of facilities) and would require additional resources to do
so. A few commenters recommended extending the deadline, for instance,
to March 15th or March 31st.
OJJDP has carefully considered these comments. The JJDPA itself
requires reporting data on a fiscal-year basis, which was the reason
for conforming the regulatory reporting period to the statutory
requirement.
In response to the concerns raised and balancing them with OJJDP's
need for sufficient time to complete compliance determinations that
will inform that year's awards, OJJDP has extended the deadline in this
partial final rule to February 28th, with the possibility of an
extension to March 31st if a State were to demonstrate good cause.
2. Requirement That States Report Twelve Months of Data for Each
Reporting Period
One commenter questioned whether the proposed requirement that 100%
of facilities report compliance data annually would affect the
requirement in section 31.303(f)(5) of the current regulation that
States may submit a minimum of six months' of data for a reporting
period. The proposed rule indicated that States' compliance monitoring
reports must contain data for ``one full federal fiscal year.''
In response, OJJDP has clarified the applicability of this
language. This partial final rule amends section 31.303(f)(5) to delete
the language allowing States to report ``not less than six months of
data,'' thus making it clear that States are required to provide
compliance data for the full twelve-month reporting period. (And, as
noted above, this partial final rule provides that States must submit
data from 85% of facilities that are required to report compliance
data.)
IV. Regulatory Certifications
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Office of Juvenile Justice and Delinquency Prevention has
reviewed this regulation and, by approving it, certifies that it will
not have a significant economic impact on a substantial number of small
entities. The Formula Grant Program provides funding to States pursuant
to a statutory provision, which is not affected by this regulation.
Because States have complete discretion as to which local governments
and other entities will receive formula grant funds through subgrants,
as well as the amount of any subgrants, this rule will have no direct
effect on any particular local governments or entities.
OJJDP received more than one comment disagreeing with OJJDP's
assessment that the proposed regulation will not have a significant
economic impact on a substantial number of small entities. OJJDP's
basis for so certifying is that the rule regulates only States and
territories, which are the recipients of funding under the Formula
Grant Program. Commenters argued that the proposed rule, if made final
as proposed, potentially would result in as many as 48 States being out
of compliance with one or more of the core requirements. One commenter
notes that because the States are required by statute to pass through
66\2/3\ percent of the funding, the basis for certifying there is no
significant impact on a substantial number of small governmental
entities is not plausible and that cutting the funding to that number
of States would certainly affect a substantial number of small
entities.
OJJDP disagrees with these comments because, as noted above, only
grants to States and territories are regulated by the rule.
Nonetheless, in this partial final rule, OJJDP has revised
significantly the compliance standards, and expects that under the
revised standards only eight States are likely to be out of compliance
with one or more of the core requirements under the Act, and to receive
a reduction in funding as a result.
Executive Orders 12866 and 13563--Regulatory Review
This rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b),
Principles of Regulation, and in accordance with Executive Order 13563
``Improving Regulation and Regulatory Review'' section 1(b), General
Principles of Regulation.
The Office of Justice Programs has determined that this rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review, and accordingly this rule has
been reviewed by the Office of Management and Budget. This partial
final rule makes important improvements in the setting of annual
compliance standards for the States, clarifies the definition of
``detain or confine,'' and makes other
[[Page 4792]]
improvements in the administration of the Formula Grant Program. The
total formula grant appropriation funding available to States for the
last five years has been less than $43 million per year.
Executive Order 13563 directs agencies to propose or adopt a
regulation only upon a reasoned determination that its benefits justify
its costs; tailor the regulation to impose the least burden on society,
consistent with obtaining the regulatory objectives; and, in choosing
among alternative regulatory approaches, select those approaches that
maximize net benefits. Executive Order 13563 recognizes that some
benefits and costs are difficult to quantify and provides that, where
appropriate and permitted by law, agencies may consider and discuss
qualitative values that are difficult or impossible to quantify,
including equity, human dignity, fairness, and distributive impacts.
This most significant provision of this rule updates the standards
for determining compliance with the DSO, separation, and jail removal
requirements, which have not been updated since 1981 for DSO, 1994 for
separation, and 1988 for jail removal. The new compliance standards in
this rule were carefully considered in light of the potential costs and
benefits that would result and are narrowly tailored to recognize the
significant progress that States have made over the last 35 years while
ensuring that States continue to strive to protect juveniles within the
juvenile justice system.
Executive Order 13132--Federalism
One commenter stated that in the Regulatory Certifications section
of the preamble to the proposed rule (section V.), ``the classical
argument between state rights vers[u]s federal powers is mentioned in
great detail and so we feel should be addressed.'' OJJDP does not agree
that that section includes any discussion of States' rights in relation
to the federal government, or that any such discussion would be
relevant. The Formula Grant Program does not impose any mandates on
States; nor does it interfere with States' sovereignty, authorities, or
rights. States, rather, participate in the program voluntarily and, as
a condition of receipt of funding to improve their juvenile justice
systems and to operate juvenile delinquency prevention programs, agree
to comply with the program's requirements.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on distribution of power and responsibilities among the various levels
of government, as the rule only affects the eligibility for, and use
of, federal funding under this program. The rule will not impose
substantial direct compliance costs on State and local governments, or
preempt any State laws. Therefore, in accordance with Executive Order
No. 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
& (b)(2) of Executive Order No. 12988. Pursuant to section 3(b)(1)(I)
of the Executive Order, nothing in this or any previous rule (or in any
administrative policy, directive, ruling, notice, guideline, guidance,
or writing) directly relating to the Program that is the subject of
this rule is intended to create any legal or procedural rights
enforceable against the United States, except as the same may be
contained within subpart B of part 94 of title 28 of the Code of
Federal Regulations.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. The Formula Grant Program provides
funds to States to improve their juvenile justice systems and to
support juvenile delinquency prevention programs. As a condition of
funding, States agree to comply with the Formula Grant Program
requirements. Therefore, no actions are necessary under the provisions
of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act
This rule is not a major rule as defined by 5 U.S.C. 804. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign- based companies in domestic and export markets.
Paperwork Reduction Act
This rule does not propose any new, or changes to existing,
``collection[s] of information'' as defined by the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501, et seq.) and its implementing regulations
at 5 CFR part 1320.
List of Subjects in 28 CFR Part 31
Administrative practice and procedure, Formula Grant Program,
Juvenile delinquency prevention, Juvenile justice, Juvenile Justice and
Delinquency Prevention Act (JJDPA).
Accordingly, for the reasons set forth in the preamble, part 31 of
chapter I of Title 28 of the Code of Federal Regulations is amended as
follows:
PART 31--OJJDP GRANT PROGRAMS
0
1. The authority citation for 28 CFR part 31 is revised to read as
follows:
Authority: 42 U.S.C 5611(b); 42 U.S.C. 5631-5633.
Subpart A--Formula Grants
Sec. 31.303 Substantive requirements.
0
2. Amend Sec. 31.303 as follows:
0
a. In paragraphs (e)(2), (e)(3)(i), and (f)(4)(vi), remove the words
``secure custody'' and add in their place ``detention''.
0
b. Revise paragraph (f)(5) introductory text.
0
c. In paragraph (f)(5)(i)(D), remove the words ``securely detained''
and add in their place ``detained''.
0
d. In paragraphs (f)(5)(iii)(C) and (f)(5)(iii)(D), remove the words
``secure detention and confinement'' and add in their place ``detention
and confinement''.
0
e. In paragraphs (f)(5)(iv)(F), (G), (H), and (I), remove the words
``held securely'' and add in their place ``detained''.
0
f. Revise paragraph (f)(6).
The revisions read as follows:
Sec. 31.303 Substantive requirements.
* * * * *
(f) * * *
(5) Reporting requirement. The State shall report annually to the
Administrator of OJJDP on the results of monitoring for the core
requirements in the JJDPA at 42 U.S.C. 5633(a)(12), (13), and (14). The
reporting period should provide 12 months of data for each federal
fiscal year, for 85% of facilities within the State that are required
to report compliance data, and States must extrapolate and report, in a
statistically valid manner, data for the remaining 15% of facilities.
The report shall be submitted to the Administrator of OJJDP by February
28 of each year, except that the Administrator may grant an extension
of the reporting deadline to March 31st, for good cause, upon request
by a State.
* * * * *
[[Page 4793]]
(6) Compliance. The State must demonstrate the extent to which the
requirements of sections 223(a)(11), (12), and (13) of the Act are met.
(i) In determining the compliance standards to be applied to
States' FY 2016 compliance monitoring data, the Administrator shall
collect all of the data from each of the States' CY 2013 compliance
reports, remove one negative outlier in each data collection period for
DSO, separation, and jail removal, and apply a standard deviation
factor of two to establish the compliance standards to be applied,
which shall be posted on OJJDP's Web site no later than March 3, 2017.
(ii) In determining the compliance standards to be applied to
States' FY 2017 compliance monitoring data, the Administrator shall
collect all of the data from each of the States' CY 2013 and FY 2016
compliance reports (removing, when appropriate or applicable, one
negative outlier in each data collection period for DSO, separation,
and jail removal) and apply a standard deviation factor of not less
than one to establish the compliance standards to be applied, which
shall be posted on OJJDP's Web site by August 31, 2017.
(iii) In determining the compliance standards to be applied to
States' FY 2018 and subsequent years' compliance monitoring data, the
Administrator shall take the average of the States' compliance
monitoring data from not less than two years prior to the compliance
reporting period with respect to which the compliance determination
will be made (removing, when applicable, one negative outlier in each
data collection period for DSO, separation, and jail removal) and apply
a standard deviation of not less than one to establish the compliance
standards to be applied, except that the Administrator may make
adjustments to the methodology described in this paragraph as he deems
necessary and shall post the compliance standards on OJJDP's Web site
by August 31st of each year.
* * * * *
0
3. Amend Sec. 31.304 by adding paragraph (q) to read as follows:
Sec. 31.304 Definitions.
* * * * *
(q) Detain or confine means to hold, keep, or restrain a person
such that he is not free to leave, or such that a reasonable person
would believe that he is not free to leave, except that a juvenile held
by law enforcement solely for the purpose of returning him to his
parent or guardian or pending his transfer to the custody of a child
welfare or social service agency is not detained or confined within the
meaning of this definition.
Dated: January 10, 2017.
Karol V. Mason,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 2017-00740 Filed 1-13-17; 8:45 am]
BILLING CODE 4410-18-P