Rule2021-10435
Juvenile Justice and Delinquency Prevention Act Formula Grants Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 11, 2021
Effective
June 11, 2021
Issuing agencies
Justice Department
Abstract
The Department of Justice, Office of Justice Programs, is amending the Formula Grants Program implementing regulation authorized under title II, part B, of the Juvenile Justice and Delinquency Prevention Act (JJDP Act) and promulgated in 1996, to remove sections and/or provisions that were rendered obsolete by amendments made to the JJDP Act in 2002 or in 2018; are redundant; or are ultra vires. Additional technical corrections reflect an editorial reclassification of the United States Code, implemented on September 1, 2017, that reorganized certain existing provisions of the United States Code into a new title, and citations are updated to reflect sections of the Act that were re-numbered by the 2002 amendments. Finally, the definitions in the regulation have been rearranged to be listed in alphabetical order.
Full Text
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<title>Federal Register, Volume 86 Issue 111 (Friday, June 11, 2021)</title>
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[Federal Register Volume 86, Number 111 (Friday, June 11, 2021)]
[Rules and Regulations]
[Pages 31152-31165]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-10435]
[[Page 31152]]
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DEPARTMENT OF JUSTICE
28 CFR Part 31
[Docket No.: OJP (OJJDP) 1782]
RIN 1121-AA83
Juvenile Justice and Delinquency Prevention Act Formula Grants
Program
AGENCY: Office of Justice Programs, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice, Office of Justice Programs, is
amending the Formula Grants Program implementing regulation authorized
under title II, part B, of the Juvenile Justice and Delinquency
Prevention Act (JJDP Act) and promulgated in 1996, to remove sections
and/or provisions that were rendered obsolete by amendments made to the
JJDP Act in 2002 or in 2018; are redundant; or are ultra vires.
Additional technical corrections reflect an editorial reclassification
of the United States Code, implemented on September 1, 2017, that
reorganized certain existing provisions of the United States Code into
a new title, and citations are updated to reflect sections of the Act
that were re-numbered by the 2002 amendments. Finally, the definitions
in the regulation have been rearranged to be listed in alphabetical
order.
DATES: This rule is effective June 11, 2021.
FOR FURTHER INFORMATION CONTACT: Keith Towery, Grants Management
Specialist, Office of Juvenile Justice and Delinquency Prevention, at
202-307-0648.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this regulatory action is to amend the Formula
Grants Program implementing regulation at 28 CFR part 31, subpart A,
authorized under title II, part B, of the Juvenile Justice and
Delinquency Prevention Act (JJDP Act) and promulgated in 1996, to
remove sections and/or provisions that (1) were rendered obsolete by
amendments made to the JJDP Act in 2002 by Public Law 107-273 (the
``2002 amendments'') or by Public Law 115-385 (the ``2018
amendments''); (2) are redundant; or (3) are ultra vires. Additional
technical corrections reflect an editorial reclassification of the
United States Code, implemented on September 1, 2017, that reorganized
certain existing provisions of the United States Code from title 42
into a new title 34, and citations are updated to reflect sections of
the Act that were re-numbered by the 2002 amendments. Finally, the
definitions in the regulation have been rearranged to be listed in
alphabetical order.\1\ OJP implements this rule pursuant to the
rulemaking authority under 34 U.S.C. 11111.
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\1\ For a redlined version that shows the changes made to the
Formula Grants Program regulation by this Final Rule, please visit
OJJDP's website at <a href="http://www.ojjdp.gov">www.ojjdp.gov</a>. See also Appendix A for a table
that indicates, by section, where edits have been made to the
regulation.
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B. Estimated Costs and Benefits
As noted in the preamble above, this rule removes provisions of the
Formula Grants Program regulation that (1) were rendered obsolete by
amendments made to the JJDP Act in 2002 by Public Law 107-273 (the
``2002 amendments'') or by Public Law 115-385 (the ``2018
amendments''); (2) are redundant; or (3) are ultra vires. This rule
also makes technical corrections to the regulation. These changes,
overall, reasonably can be expected to save at least a de minimis
amount of grantee staff time in understanding program requirements when
compared to the current rule, and thus the rule is deregulatory. With
respect to the provisions of the Formula Grants Program regulation to
be removed as obsolete, States have been advised by OJJDP not to follow
those provisions, and/or OJJDP has not been enforcing those provisions.
Thus, removing those provisions will result in no additional or reduced
burden on states. The removal of provisions that are redundant, because
they simply parrot language in the JJDPA, do not impose or reduce
requirements of state grantees, and accordingly neither increase nor
decrease costs or burdens on states. This rule makes technical
corrections to the Formula Grants Program regulation that reflect the
2002 and 2018 amendments, most of which reflect simple renumbering of
sections or provisions of the JJDPA, but do not make changes that would
impose additional requirements on states. Finally, the three provisions
in the regulation that are being removed as ultra vires have not been
enforced by OJJDP in recent years; their removal will not result in any
additional costs, and may result in de minimis savings in grantee staff
time, as noted above.
II. Background
This rule amends the regulation implementing the JJDP Act Formula
Grants Program at 28 CFR part 31, subpart A. OJJDP administers the
Formula Grants Program, pursuant to title II, part B, of the JJDP Act,
now codified at 34 U.S.C. 11131-11133, which authorizes OJJDP to
provide an annual grant to each State to improve its juvenile justice
system and to support juvenile delinquency prevention programs. Title
II, part B, of the JJDP Act authorizes OJJDP to provide formula grants
to states to assist them in planning, establishing, operating,
coordinating, and evaluating projects directly or through grants and
contracts with public and private agencies for the development of more
effective education, training, research, prevention, diversion,
treatment, and rehabilitation programs in the area of juvenile
delinquency and programs to improve the juvenile justice system. The
JJDP Act was originally enacted in 1974, authorizing the Formula Grants
Program under title II, part B, and was reauthorized and/or amended in
1980,\2\ 1984,\3\ 1988,\4\ 1992,\5\ 2002,\6\ and 2018.\7\ It should be
noted that this final rule, which is purely technical in character,
does not reflect amendments made by the Juvenile Justice Reform Act of
2018 (Pub. L. 115-385), unless they are purely technical in nature, or
reflect provisions that were rendered obsolete. Any substantive changes
will be made in a future regulation that will be published for notice
and public comment.
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\2\ Public Law 96-509.
\3\ Public Law 98-473.
\4\ Public Law 100-690.
\5\ Public Law 102-586.
\6\ Public Law 107-273.
\7\ Public Law 115-385.
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OJP's Formula Grants Program implementing regulation was first
published on May 31, 1995, and amended on December 31, 1996. In the
2002 amendments to the JJDP Act, several statutory provisions were
repealed, but those statutory amendments were not reflected in the only
post-1996 amendment to the implementing regulation (promulgated in
January 2017). This final rule, among other things, amends the
regulation to reflect the repeal, in 2002, of those statutory
provisions, as well as the repeal of statutory provisions based on the
2018 amendments. Finally, it should be noted that many provisions that
currently exist in this regulation have been superseded by 2 CFR part
200 (Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards), references to which are to be
understood as references to part 200 as adopted for the Department of
Justice by 28 CFR part 2800. In addition, it should be noted that,
among other things, title II
[[Page 31153]]
of the JJDP Act adopts by reference certain provisions of the Omnibus
Crime Control and Safe Streets Act of 1968, making them applicable to
the title II Formula Grants Program. See 34 U.S.C. 11182(b) and (c).
These referenced provisions include, but are not limited to, the
provisions found at 34 U.S.C. 10228(c) (prohibition on discrimination);
34 U.S.C. 10230(a) (recordkeeping requirement); 34 U.S.C. 10230(b)
(access to records for audit and examination); 34 U.S.C. 10230(c)
(audit and examination period after completion of program or project);
34 U.S.C. 10231(a) (research or statistical information; immunity from
process; prohibition against admission as evidence or use in any
proceedings).
III. Discussion of Changes Made by This Rule <SUP>8</SUP>
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\8\ Please see the table at Appendix A detailing the reasons for
specific changes made by this Final Rule.
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A. Removal of Sections That Are Obsolete
The current regulation prescribes requirements that were pertinent
to Formula Grants Program requirements that were repealed in the 2002
and 2018 amendments. Those provisions of the current regulation that
purport to implement requirements that were repealed by the 2002 and
2018 statutory amendments are not valid. See, e.g., Hadson Gas Sys.,
Inc. v. FERC, 316 U.S. App. D.C. 98, 75 F.3d 680, 684 (D.C. Cir. 1996)
(where Congress enacts a new statute or amends an existing one,
administrative regulations may be rendered unnecessary or obsolete and
the prior regulations need not be repealed by notice and comment);
Messick ex rel. Kangas v. United States, 70 Fed. Cl. 319, 328 (2006)
(holding that a regulation that had failed to keep up with statutory
changes was to be ``disregarded''), rev'd on other grounds sub nom.
Amber-Messick ex rel. Kangas v. United States, 483 F.3d 1316 (Fed. Cir.
2007).
B. Removal of Sections That Merely Repeat Provisions of the JJDP Act or
Other Law
Several sections of the Formula Grants Program regulation do no
more than parrot existing statutory provisions within the JJDP Act or
provisions such as those in the Omnibus Crime Control and Safe Streets
Act of 1968 that are noted above, and thus are unnecessarily repeated
in the regulation.
C. Removal of Sections That Are Ultra Vires
The following three provisions of the regulation are being removed
because they are contrary to specific provisions within the JJDP Act,
or are generally outside the scope of the Administrator's authority,
and are, therefore, ``ultra vires''--``unauthorized; beyond the scope
of power allowed or granted by a corporate charter or by law.'' Black's
Law Dictionary (10th ed. 2014).
Section 31.301(e)
This provision of the current regulation purports to describe how
OJJDP may use funds that were originally allocated to a state that is
subsequently determined to be ineligible for a formula grant award
(including because it has not met one or more of the 33 eligibility
requirements set forth at section 223(a) of the JJDP Act), or has
chosen not to submit an application for a formula grant award. Section
223(d) of the JJDP Act, however, requires that OJJDP must ``endeavor to
make that State's allocation [excluding the allocation for the state
advisory group authorized under 34 U.S.C. 11133(a)(3)] available to
local public and private nonprofit agencies'' within the state and goes
on to provide that, if the Administrator is unable to make such an
award, the funds must be made available ``on an equitable basis and to
those States that have achieved full compliance with the core
requirements.'' (Emphasis added.) Thus, by the express terms of this
statutory provision, those funds may not be reallocated to states that
were determined to be out of compliance. The third sentence of section
31.301(e) states that, upon ``a request for extension, which
demonstrates compelling circumstances'' OJJDP may reallocate the
formula grant funds ``back to the State for which the funds were
initially allocated,'' and thus purports to provide something
manifestly contrary to the plain language of section 223(d) of the JJDP
Act (34 U.S.C. 11133(d)). Section 31.301(e) is, therefore, ultra vires
and must be removed.
Section 31.303(f)(1)(i)(A)
Section 31.303(f)(1)(i)(A) purports to require that a state
identify in its monitoring universe ``all residential facilities which
might hold juveniles pursuant to public authority.'' The word
``residential'' is deleted because, section 223(a)(14) of the JJDP Act
(34 U.S.C. 11133 (a)(14)) requires that States monitor all ``jails,
lock-ups, detention facilities, and correctional facilities,'' and,
plainly, is not limited in scope to ``residential'' facilities.
Accordingly, the language in this paragraph that purports to limit the
reach of the statutory requirement is ultra vires. Consequently,
section 31.303(f)(1)(i)(A) must be amended accordingly.
Section 31.303(f)(3)(vii)
Among other things, section 223(a)(11)(A)(ii) of the JJDP Act
provides that ``a juvenile shall not be placed in a secure detention
facility or a secure correctional facility'' if the juvenile is (in
common parlance) a ``non-offender'' who ``is an alien[ ] or is alleged
to be dependent, neglected, or abused.'' A ``non-offender,'' pursuant
to 28 CFR 31.304(i), is a ``juvenile who is subject to the jurisdiction
of the juvenile court . . . for reasons other than legally prohibited
conduct of the juvenile'' (emphasis added); and violation of a valid
court order is, as a matter of law, ``legally prohibited conduct.''
Thus, by definition, a juvenile who has violated a valid court order is
not, and cannot be, a ``non-offender.'' Section 31.303(f)(3)(vii) of
the current regulation, however, purports to provide that an erstwhile
``non-offender . . . cannot [sic] be placed in secure detention or
correctional facilities [sic] for violating a valid court order.''
Consequently, section 31.303(f)(3)(vii) of the current regulation,
which purports to extend section 223(a)(11)(A)(ii) of the JJDP Act
(which relates only to ``non-offenders'') to juveniles who are not
``non-offenders'' is ultra vires and must be removed.
D. Technical Corrections
Several amendments to the Formula Grants Program regulation reflect
an editorial reclassification of the United States Code, implemented on
September 1, 2017, that reorganized certain existing provisions of the
United States Code from title 42 into a new title 34. Additionally,
other citations in the current regulation are being updated to reflect
sections of the JJDP Act that were re-numbered following the 2002
amendments.
IV. Regulatory Requirements
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) applies to rules
that are subject to notice and comment under section 553(b) of the APA.
As noted in the discussion, below, regarding the applicability of the
APA, this rule is exempt from the 553(b) notice and comment
requirements. Consequently, the RFA does not apply.
Nevertheless, consistent with the analysis typically required by
the
[[Page 31154]]
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 Grants
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.
Executive Order 12866, Regulatory Planning and Review, 13563 and
Improving Regulation and Regulatory Review
This final rule was developed in accordance with the principles of
E.O. 12866 and 13563. E.O. 12866, section 1(b), 58 FR 51, 735 (Sept.
30, 1993), which direct agencies to assess all costs and benefits of
available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health, and safety effects;
distributive impacts; and equity). E.O. 13563 is supplemental to and
reaffirms the principles, structures, and definitions governing
regulatory review as established in E.O. 12866.
OJP has determined that this regulation is not a ``significant
regulatory action'' under Executive Order No. 12866. As set forth
above, this final rule will not have the economic effects described in
E.O. 12866, sec. 3(f) (e.g., annual effect on the economy of $100
million or more). It will not create any serious inconsistency or
otherwise interference with an action taken or planned by another
agency because this rule merely updates an OJJDP program rule. It does
not materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof because it merely updates the program rule to conform to
existing statutory law and makes technical corrections. For the same
reasons, it does not raise novel legal or policy issues. Consequently,
in accordance with the general principles of Executive Order No. 12866,
the Office of Management and Budget has declined review.
This final rule is not a significant regulatory action under E.O.
12866, and it does not impose a cost greater than zero.
Administrative Procedure Act
This rule issued by the Office of Justice Programs changes the
regulations for the OJJDP Formula Grant Program, and thus concerns
matters relating to ``grants, benefits, or contracts,'' 5 U.S.C.
553(a)(2). This rule is therefore exempt from the requirement of notice
and comment and a 30-day delay in the effective date.
Moreover, the purpose of this final rule is (a) to remove
provisions of the current regulation that are contrary to the statute
upon which they purport to have been predicated when originally
promulgated, or that merely parrot or repeat language in the JJDP Act
or the Omnibus Crime Control and Safe Streets Act of 1968; and (b) to
make technical corrections. Public comments on this final rule would
have no effect on the legal necessity of removing the regulatory
provisions that are contrary to statute, no effect on the legal
redundancy of the parroting or repeating language, and no effect on the
making of technical corrections. Finally, the rule would not adversely
affect any segment of the public whatsoever, as it does not impose any
burdens or requirements on any entities, including Formula Grants
Program recipients, and therefore advance notice and public comment are
unnecessary.
In addition, these rule amendments remove provisions of the
regulation that were rendered null and void by subsequent amendments to
the JJDP Act, (which repealed the predicate statutory provisions upon
which the regulatory provisions were based), and ``parroting''
regulations that unnecessarily repeat other provisions of law, and
otherwise make only technical corrections to U.S. Code citations in
cross-references. Where provisions of the regulation are predicated on
defunct or amended statutory provisions, it causes confusion as to the
requirements that Formula Grants Program grantees must meet.
For these reasons, it is contrary to the public interest to delay
implementation of this rule.
Executive Order 13132--Federalism
The Formula Grants 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 federal government and the States, or
on distribution of power and responsibilities among the various levels
of government. 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)
and (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 A of part 31 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 Grants 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 Grants 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
[[Page 31155]]
U.S.C. 3501, et seq.) and its implementing regulations at 5 CFR part
1320.
Appendix A
Table of Amendments to OJJDP Formula Grants Program Regulation--28 CFR
Part 31
------------------------------------------------------------------------
Reason(s) for removal or
Regulatory provision technical correction
------------------------------------------------------------------------
31.1(a)................................ TECHNICAL CORRECTION: The text
of this paragraph is
simplified for clarity.
31.1(b)................................ TECHNICAL CORRECTION: As many
current provisions that parrot
regulations found outside this
subpart are removed by this
rule, this paragraph is added
to provide notice that
regulations found outside this
subpart may be applicable.
31.1(c)................................ TECHNICAL CORRECTION: This
paragraph is added to clarify
that the myriad references in
this subpart to provisions of
Federal law outside this
subpart are general (not
specific) references and thus
include any subsequent
amendment to the provision.
31.2................................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect the 2017
reorganization of title 42 of
the U.S. Code into a new title
34.
31.3................................... OBSOLETE: The first sentence,
which indicates the submission
deadline for applications for
years prior to 1995, is
removed as obsolete.
TECHNICAL CORRECTION: The
second sentence is removed
because the application
deadline in any given year
will depend upon the date that
the solicitation is posted in
that year.
31.100................................. REDUNDANT: This section is
removed because the
eligibility requirements are
set forth at sections 103(7)
and 221 of the Juvenile
Justice and Delinquency
Prevention Act (the Act) (34
U.S.C. 11103(7) and 11131).
31.101................................. REDUNDANT: This section is
removed because it restates
state agency designation
requirements found at sections
223(a)(1) and (2) of the Act
(34 U.S.C. 11133(a)(1) and
(2)).
OBSOLETE: The second sentence
of this section was authorized
by, and refers to, a section
of the Act (section 299(c))
that was repealed in
amendments made to the Act by
Public Law 107-273 in 2002
(the 2002 amendments).
31.102................................. OBSOLETE: The statutory
provision authorizing the
Administrator to establish
requirements for, and approve,
the state agency designated by
the governor or chief
executive of the state, was
repealed by Public Law 115-385
in 2018 (the 2018 amendments).
31.103................................. OBSOLETE: This section was made
obsolete by the 2002
amendments which added section
223(e) (see 34 U.S.C.
11133(e)).
31.200................................. REDUNDANT: This section is
removed because it references
general requirements,
established elsewhere, that
are not specific to the
Formula Grants Program and
need not be included in this
regulation.
31.201................................. REDUNDANT: This section is
removed because it references
several audit requirements,
established elsewhere, that
are not specific to the
Formula Grants Program and
need not be included in this
regulation.
31.202(a)(1)........................... REDUNDANT: This paragraph is
removed because the
requirement is found elsewhere
(see 28 CFR 42.505(d)).
31.202(a)(2)........................... TECHNICAL CORRECTION: This
section is removed because the
reference to ``Council'' is a
remnant of earlier versions of
the regulation, which referred
to the ``State Criminal
Justice Council'' that was
required under 402(b)(1) of
title I of Public Law 90-351,
which section was repealed in
1984 by section 606 of title
II of Public Law 98-473. Prior
versions of the JJDP Act
adopted that requirement by
reference, but the JJDP Act
was amended to remove those
references. (See Pub. L. 98-
473, title II, sec. 626.)
31.202(b)(1)........................... REDUNDANT: This paragraph is
removed because the
requirement is found elsewhere
(see 28 CFR 42.204(a)).
31.202(b)(2)........................... REDUNDANT: This paragraph is
removed because the
requirement is found elsewhere
(see 28 CFR 42.204(b)).
31.202(b)(3)........................... REDUNDANT: This paragraph is
removed because the
requirement is found elsewhere
(see 28 CFR 42.405.
31.202(b)(4)........................... REDUNDANT: This paragraph is
removed because its substance
is covered elsewhere (see 34
U.S.C. 10230 and 2 CFR
200.337(a).
31.202(b)(5)........................... REDUNDANT: This paragraph is
removed as redundant because
it repeats a requirement found
at 28 CFR 42.204(c).
31.203................................. OBSOLETE: The first part of the
first sentence is removed
because it references a
section of the Act (section
299(c)) that was repealed in
the 2002 amendments.
31.300................................. REDUNDANT: This section is
removed because it is
redundant; see section 31.1 of
this regulation.
[[Page 31156]]
31.301(a).............................. REDUNDANT: This paragraph,
regarding state funding
allocations, is removed
because it is redundant; see
section 222 of the Act (34
U.S.C. 11132).
31.301(b).............................. TECHNICAL CORRECTION: In the
first sentence of this
paragraph, ``application'' is
replaced with ``allocation''
because it is not consistent
with the language in section
222 of the JJDP Act (34 U.S.C.
11132)).
TECHNICAL CORRECTION: The last
sentence of this paragraph is
removed because it references
a section of the regulation
that is removed as redundant
(section 31.301(b)(1)).
31.301(b)(1)........................... REDUNDANT: This paragraph,
regarding tribal eligibility
and use of funds, is removed
because it is redundant; see
section 223(a)(5)(C) of the
Act (34 U.S.C. 11133(a)(5)(C))
and section 103(18) of the Act
(34 U.S.C. 11103(18)).
31.301(b)(4)........................... TECHNICAL CORRECTION: This
reference to paragraphs
(b)(1)(i)-(iii) of this
section is removed because
paragraphs (b)(1)(i)-(iii) are
removed as redundant.
31.301(b)(5)........................... REDUNDANT: This paragraph,
requiring consultation with
Indian tribes, is removed
because it is redundant; see
section 223(a)(4) of the Act
(34 U.S.C. 11133(a)(4)).
31.301(c).............................. REDUNDANT: This paragraph,
describing the match
requirement, is removed
because it is redundant; see
section 222(c) of the Act (34
U.S.C. 11132(c)).
31.301(e).............................. REDUNDANT: The first sentence,
describing how unallocated
funds from nonparticipating
states may be used by OJJDP,
is removed as redundant; see
section 223(d) of the Act (34
U.S.C. 11133(d)).
REDUNDANT: The second sentence,
regarding the allowable use of
funds awarded to a recipient
within a nonparticipating
state, is removed as
redundant; see section 223(d)
of the Act (34 U.S.C.
11133(d)).
ULTRA VIRES: The third
sentence, allowing the
reallocation of funds to
states initially deemed
ineligible, is removed as
ultra vires because section
223(d) of the Act (34 U.S.C.
11133(d)) requires that funds
withheld from nonparticipating
states be made available to a
local public or private
nonprofit entity within the
state.
OBSOLETE: The reference to the
date after which the
unallocated funding from
nonparticipating states will
be made available to another
entity within the state is
obsolete because the date has
passed and is no longer
meaningful.
OBSOLETE: This reference to
publication of program
announcements in the Federal
Register is removed as
obsolete because program
announcements (i.e.,
solicitations) are no longer
published in the Federal
Register.
31.302(a).............................. REDUNDANT: This paragraph,
regarding the designation of
the state agency responsible
for administration of the
Formula Grants Program, is
redundant; see sections
223(a)(1) and (2) of the Act
(34 U.S.C. 11133(a)(1) and
(2)).
OBSOLETE: This paragraph also
refers to a section of the Act
(section 299(c)) that was
repealed in the 2002
amendments.
31.302(b)(1)........................... REDUNDANT: The first sentence,
describing the state advisory
group and membership
requirements, is redundant;
see section 223(a)(3) of the
Act (34 U.S.C. 11133(a)(3)).
31.302(b)(2)........................... OBSOLETE: Section 223(a)(3)(A)
and (B) of the Act (34 U.S.C.
11133(a)(3)(A) and (B))
prescribe membership
requirements for the state
advisory groups (SAGs). This
paragraph simply makes
recommendations for SAG
membership based on a
statutory provision that was
repealed in the 2002
amendments.
31.302(c).............................. REDUNDANT: This paragraph is
removed because it simply
provides that states must
comply with cited sections of
the Act that, of their own
force, require compliance by
formula grant recipients.
31.303(a).............................. REDUNDANT: This paragraph is
removed because all Office of
Justice Programs (OJP) grant
recipients are subject to a
requirement, established
elsewhere, that they submit
assurances that they have
complied with applicable
statutory, regulatory, and
other program requirements
when they submit their
application, and thus need not
be included in this
regulation.
31.303(b).............................. OBSOLETE: This paragraph simply
makes a recommendation for the
use of formula grant funds
based on a finding that was
deleted in the 2002 amendments
and a statutory provision that
does not specifically describe
efforts to address serious and
violent offenders in the
permissible programs
delineated in section
223(a)(9) of the Act (34
U.S.C. 11133(a)(9)).
[[Page 31157]]
31.303(c).............................. TECHNICAL CORRECTION: The
statutory citation referenced
in the paragraph is updated to
reflect renumbering in the
2002 and 2018 amendments.
31.303(c)(1)........................... TECHNICAL CORRECTION: This
citation is amended to conform
to proper Code of Federal
Regulations citation form.
31.303(c)(4)........................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect renumbering in the
2002 and 2018 amendments.
31.303(c)(5)........................... OBSOLETE: This paragraph is
removed as obsolete because it
references a report required
by a provision in the Act
(section 223(a)(12)(B)) that
was repealed by the 2002
amendments.
31.303(d).............................. TECHNICAL CORRECTION: The term
``contact,'' for the purposes
of the separation requirement,
is replaced with ``sight or
sound contact'' each place it
appears in this paragraph, to
reflect a change to the
separation requirement in
section 223(a)(12) of the Act
(34 U.S.C. 11133(a)(12)), made
by the 2018 amendments.
TECHNICAL CORRECTION: The term
``incarcerated adults'' is
replaced with ``adult
inmates'' each place it
appears in this paragraph, to
reflect a change to the
separation requirement in
section 223(a)(12) of the Act
(34 U.S.C. 11133(a)(12)), made
by the 2002 amendments.
31.303(d)(1)........................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is changed
to reflect that the separation
provision is found in section
223(a)(12) of the Act (34
U.S.C. 11133(a)(12)).
31.303(d)(1)(i)........................ TECHNICAL CORRECTION: The term
``juvenile offenders'' is not
consistent with the separation
requirement in section
223(a)(12) and is replaced
with the word ``juveniles''
each place it appears in this
paragraph.
OBSOLETE: The term ``contact,''
for the purposes of the
separation requirement, has
been replaced with the term
``sight or sound contact'' by
the 2018 amendments, at 34
U.S.C. 11133(a)(12), and the
definition of ``contact'' has
been replaced with a
definition of ``sight or sound
contact'' at 34 U.S.C.
11103(25).
OBSOLETE: The term ``contact,''
defined in this regulatory
provision, was replaced with
the term ``sight or sound
contact'' by the 2018
amendments at 34 U.S.C.
11133(a)(12). ``Sight or sound
contact'' is defined at 34
U.S.C. 11103(25), and
expressly excludes contact
that is ``brief and
inadvertent,'' but not contact
that is ``accidental.''
TECHNICAL CORRECTION: The
separation requirement
prohibits sight or sound
contact between ``juveniles
alleged to be or found to be
delinquent or those within the
purview of [34 U.S.C.
11133(a)(11)]'' and adult
inmates.
31.303(d)(2)........................... OBSOLETE: This provision is
removed as obsolete because it
required immediate
implementation at the time
this regulation was
promulgated in 1996 and thus
is no longer meaningful.
31.303(e)(1)........................... OBSOLETE: The reference to the
date after which states must
describe their plan,
procedure, and timetable for
complying with the jail
removal requirement is deleted
because it has passed and is
no longer meaningful.
OBSOLETE: The second sentence
is deleted because it refers
to section 31.303(f)(4) of
this regulation, which is
removed.
31.303(e)(2)........................... REDUNDANT: The second sentence
is removed because section
223(a)(13) of the Act (34
U.S.C. 11133(a)(13)) sets
forth the exceptions to the
jail removal requirement.
31.303(e)(3)(i)........................ TECHNICAL CORRECTION: The
reference to ``(e)(3)(i)(C)(1)
through (4)'' is changed to
``(e)(3)(i)(C)(1), (2), and
(4)'' because (e)(3)(i)(C)(3),
requiring separate staff in
collocated facilities, is
removed.
31.303(e)(3)(i)(A)..................... TECHNICAL CORRECTION: The
reference to (e)(3)(i)(C)(3)
is deleted because that
subparagraph is removed.
31.303(e)(3)(i)(B)..................... TECHNICAL CORRECTION: The
reference to ``four'' criteria
is deleted, because
(e)(3)(i)(C)(3) is removed and
there are now only three
criteria.
TECHNICAL CORRECTION: The
reference to ``(e)(3)(i)(C)(1)
through (4)'' is changed to
``(e)(3)(i)(C)(1), (2), and
(4)'' because (e)(3)(i)(C)(3),
requiring separate staff in
collocated facilities, is
removed.
31.303(e)(3)(i)(C)..................... TECHNICAL CORRECTION: The
reference to ``four'' criteria
is deleted, because
(e)(3)(i)(C)(3) is removed and
there are now only three
criteria.
[[Page 31158]]
31.303(e)(3)(i)(C)(1) and (2).......... TECHNICAL CORRECTION: The terms
``adults'' and ``incarcerated
adults'' are replaced with
``adult inmates'' each place
they appear in subparagraphs
(C)(1) and (2) to reflect a
change to the separation
requirement in section
223(a)(12) of the Act (34
U.S.C. 11133(a)(12)), made by
the 2002 amendments.
31.303(e)(3)(i)(C)(3).................. OBSOLETE: This provision is
removed as obsolete because it
is based on a statutory
provision within the
separation requirement
(requiring separate staff)
that was repealed by the 2002
amendments.
31.303(e)(3)(ii)....................... TECHNICAL CORRECTION: The
reference to ``four'' criteria
is deleted, because
(e)(3)(i)(C)(3) is removed and
there are now only three
criteria. Two words are added
for clarity.
TECHNICAL CORRECTION: The
reference to ``(e)(3)(i)(C)(1)
through (4)'' is changed to
``(e)(3)(i)(C)(1), (2), and
(4)'' because (e)(3)(i)(C)(3),
requiring separate staff in
collocated facilities, is
removed.
31.303(e)(3)(iii)...................... OBSOLETE: This provision is
removed as obsolete because it
is based on a statutory
provision within the
separation requirement
(requiring separate staff)
that was repealed by the 2002
amendments.
31.303(e)(3)(iv)....................... TECHNICAL CORRECTION: The
reference to ``(e)(3)(i)(C)(1)
through (4)'' is changed to
``(e)(3)(i)(C)(1), (2), and
(4)'' because (e)(3)(i)(C)(3),
requiring separate staff in
collocated facilities, is
removed.
31.303(e)(4)........................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect renumbering in the
2002 amendments.
31.303(f)(1)........................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect renumbering in the
2002 amendments.
31.303(f)(1)(i)(A)..................... ULTRA VIRES: The word
``residential'' is deleted
because, section 223(a)(14) of
the Act (34 U.S.C. 11133
(a)(14)) requires that States
monitor all ``jails, lock-ups,
detention facilities, and
correctional facilities,''
and, plainly, is not limited
in scope to ``residential''
facilities. Accordingly, the
language in this paragraph
that purports to limit the
reach of the statutory
requirement is ultra vires.
31.303(f)(1)(i)(B)..................... OBSOLETE: In this paragraph the
words ``or nonsecure'' are
deleted because the
requirement at section
223(a)(14) (34 U.S.C.
11133(a)(14)) that states
monitor nonsecure facilities
was repealed by the 2018
amendments.
31.303(f)(1)(i)(C)(2).................. TECHNICAL CORRECTION: The
statutory citations referenced
in this paragraph are updated
to reflect renumbering in the
2002 amendments.
31.303(f)(1)(i)(D)..................... TECHNICAL CORRECTION: The
statutory citations referenced
in this paragraph are updated
to reflect renumbering in the
2002 amendments.
TECHNICAL CORRECTION: The
second clause in the second
sentence is deleted because
the reporting period was
changed to 12 months in the
2017 amendments to the
regulation, at section
31.303(f)(5).
31.303(f)(1)(ii)....................... TECHNICAL CORRECTION: The
statutory citations referenced
in this paragraph are updated
to reflect renumbering in the
2002 amendments.
31.303(f)(1)(iii)...................... TECHNICAL CORRECTION: The
statutory citations referenced
in this paragraph are updated
to reflect renumbering in the
2002 amendments.
31.303(f)(2)........................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect renumbering in the
2002 amendments.
31.303(f)(3)(i)........................ TECHNICAL CORRECTION: The term
``juvenile'' is replaced with
``status offender'' in each
place that it appears in this
paragraph to reflect a change
in section 223(a)(23) of the
Act (34 U.S.C. 11133(a)(23)),
made by the 2018 amendments.
31.303(f)(3)(iii)...................... REDUNDANT: This paragraph,
describing a requirement
related to the valid court
order exception, is removed
because it is redundant; see
section 31.303(f)(3)(v).
31.303(f)(3)(iv)....................... OBSOLETE: This paragraph,
describing requirements that
must be met in order to use
the valid court order (VCO)
exception, is removed as
obsolete because the VCO
requirements are set forth in
section 223(a)(23) of the Act,
as amended in 2002.
31.303(f)(3)(v)(A)..................... TECHNICAL CORRECTION: The term
``juvenile'' is replaced with
``status offender'' to reflect
a change in section 223(a)(23)
of the Act (34 U.S.C.
11133(a)(23)), made by the
2018 amendments.
[[Page 31159]]
31.303(f)(3)(vi)....................... OBSOLETE: This paragraph,
describing requirements that
must be met in order to use
the valid court order (VCO)
exception, is removed as
obsolete because the VCO
requirements are set forth in
section 223(a)(23) of the Act,
as amended in 2002.
31.303(f)(3)(vii)...................... ULTRA VIRES: This paragraph is
ultra vires because a juvenile
who has violated a valid court
order is not a non-offender
and therefore the provisions
of section 223(a)(11)(A)(ii)
of the Act (relating to non-
offenders) do not apply to
such a juvenile.
31.303(f)(4)........................... OBSOLETE: This paragraph is
removed as obsolete because
the jail removal requirement
in section 223(a)(13) of the
Act (34 U.S.C. 11133(a)(13))
was amended in 2002 to provide
exceptions to the requirement.
31.303(f)(5)........................... TECHNICAL CORRECTION: The
statutory citations referenced
in this paragraph are updated
to reflect the 2017
reorganization of title 42 of
the U.S. Code into a new title
34.
31.303(f)(5)(i)........................ TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect renumbering in the
2002 amendments.
31.303(f)(5)(i)(D)..................... TECHNICAL CORRECTION: The word
``Title'' has been changed to
lower case to match the
formatting in the rest of the
part.
31.303(f)(5)(ii)....................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect renumbering in the
2002 amendments.
31.303(f)(5)(iii)...................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect renumbering in the
2002 amendments.
TECHNICAL CORRECTION: The term
``criminal offenders'' is
replaced with ``inmates'' each
place it appears in this
paragraph to reflect a change
to the separation requirement
in section 223(a)(12) of the
Act (34 U.S.C. 11133(a)(12)),
made by the 2002 amendments.
31.303(f)(5)(iv)....................... TECHNICAL CORRECTION: The
statutory citation referenced
in this paragraph is updated
to reflect renumbering in the
2002 amendments.
31.303(f)(5)(iv)(F).................... TECHNICAL CORRECTION: The
reference to ``paragraph
(f)(4)'' (jail removal
exceptions) in this paragraph
is deleted because that
paragraph (section
31.303(f)(4)) is removed.
31.303(f)(5)(iv)(J).................... TECHNICAL CORRECTION: The
reference to ``paragraph
(f)(4)'' (jail removal
exceptions) in this paragraph
is deleted because that
paragraph (section
31.303(f)(4)) is removed.
31.303(f)(5)(iv)(K).................... TECHNICAL CORRECTION: The
reference to ``paragraph
(f)(4)'' (jail removal
exceptions) in this paragraph
is deleted because that
paragraph (section
31.303(f)(4)) is removed.
31.303(f)(5)(iv)(L).................... TECHNICAL CORRECTION: The
reference to ``paragraph
(f)(4)'' (jail removal
exceptions) in this paragraph
is deleted because that
paragraph (section
31.303(f)(4)) is removed.
31.303(f)(5)(iv)(M).................... TECHNICAL CORRECTION: The
reference to ``paragraph
(f)(4)'' (jail removal
exceptions) in this paragraph
is deleted because that
paragraph (section
31.303(f)(4)) is removed.
31.303(f)(6)(i)........................ OBSOLETE: The numerical
standard used to determine
states' compliance with the
DSO, separation, and jail
removal requirements, based on
their 2016 compliance data, is
no longer meaningful.
31.303(f)(6)(ii)....................... OBSOLETE: The numerical
standard used to determine
states' compliance with the
DSO, separation, and jail
removal requirements, based on
their 2017 compliance data, is
no longer meaningful.
31.303(f)(6)(iii)...................... OBSOLETE: The numerical
standard used to determine
states' compliance with the
DSO, separation, and jail
removal requirements, based on
their 2018 data, is no longer
meaningful. With the removal
of the reference to ``FY
2018,'' the phrase ``and
subsequent years'' is no
longer necessary.
31.303(f)(7)........................... TECHNICAL CORRECTION: The
statutory citations referenced
in this paragraph are updated
to reflect renumbering in the
2002 amendments, and the word
``Act'' is added after
``JJDP'' to match the phrasing
in the rest of the part.
31.303(f)(7)(i)........................ TECHNICAL CORRECTION: The
statutory citations referenced
in this paragraph are updated
to reflect renumbering in the
2002 amendments.
31.303(f)(7)(ii)....................... TECHNICAL CORRECTION: The
statutory citations referenced
in this paragraph are updated
to reflect renumbering in the
2002 amendments, and the word
``Sections'' is changed to
lowercase to match the
formatting in the rest of the
part.
[[Page 31160]]
31.303(g).............................. REDUNDANT: This provision is
removed as redundant because
section 223(a)(7) of the Act
sets forth the requirements of
the juvenile crime analysis.
31.303(h).............................. TECHNICAL CORRECTION: The
citation to section 223(a) is
deleted because the correct
reference to the statutory
provision requiring the annual
performance report is provided
immediately following this
deleted text. Additionally,
the correct reference is to a
statutory provision that was
renumbered by the 2002
amendments.
TECHNICAL CORRECTION: The
correct citation to the
juvenile crime analysis
requirement is found at
section 223(a)(7) of the Act
(34 U.S.C. 11133(a)(7)).
31.303(j).............................. OBSOLETE: This provision is
removed because the
disproportionate minority
confinement provision was
repealed and replaced with
section 223(a)(22) of the Act
(the disproportionate minority
contact provision) (34 U.S.C.
11133(a)(22)) by the 2002
amendments, which in turn, was
repealed by the 2018
amendments and replaced with
the requirement to reduce
racial and ethnic disparities
in section 233(a)(15) of the
Act (34 U.S.C. 11133(a)(15)).
31.303(k).............................. OBSOLETE: This provision is
removed as obsolete because
the statutory basis for the
provision was repealed by the
2002 amendments.
31.304................................. REDUNDANT: Four definitions
have been deleted (section
31.304(h), (m), (n), and (o))
as redundant, because
definitions for these terms
are provided in the Act.
TECHNICAL CORRECTION: The
remaining definitions have
been rearranged in
alphabetical order.
31.304(h).............................. REDUNDANT: The term ``status
offender'' is defined in
section 103(42) of the Act (34
U.S.C. 11103(42)).
31.304(m).............................. REDUNDANT: The term ``jail or
lockup for adults'' is defined
in section 103(22) of the Act
(34 U.S.C. 11103(22)).
31.304(n).............................. REDUNDANT: The term ``jail or
lockup for adults'' is defined
in section 103(22) of the Act
(34 U.S.C. 11103(22)).
31.304(o).............................. REDUNDANT: The term ``valid
court order'' is defined in
section 103(16) of the Act (34
U.S.C. 11103(16)).
31.400................................. REDUNDANT: This section is
removed as redundant because
it merely references general
requirements, established
elsewhere, with which states
must comply (without citation
to those requirements). When
accepting a grant award,
states must provide assurances
that they will comply with all
statutory, regulatory, and
other applicable requirements.
31.401................................. REDUNDANT: This section is
removed as redundant because
it merely references general
requirements, established
elsewhere, with which states
must comply (without citation
to those requirements). When
accepting a grant award,
states must provide assurances
that they will comply with all
statutory, regulatory, and
other applicable requirements.
31.403................................. REDUNDANT: This section is
removed because it references
general requirements,
established elsewhere, that
are not specific to the
Formula Grants Program and
need not be included in this
regulation.
31.404................................. REDUNDANT: This section merely
references a requirement
prescribed in 28 CFR part 38.
------------------------------------------------------------------------
List of Subjects in 28 CFR Part 31
Administrative practice and procedure, juvenile delinquency
prevention, juvenile justice, Formula Grants Program, Juvenile Justice
and Delinquency Prevention Act (JJDP Act).
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:
0
1. The general authority citation for part 31 continues to read as
follows:
Authority: 42 U.S.C 5611(b); 42 U.S.C. 5631-5633.
0
2. Subpart A is revised to read as follows:
Subpart A--Formula Grants
General Provisions
Sec.
31.1 General.
31.2 Statutory authority.
31.3 [Reserved]
Eligible Applicants
31.100 [Reserved]
31.101 [Reserved]
31.102 [Reserved]
31.103 [Reserved]
General Requirements
31.200 [Reserved]
31.201 [Reserved]
31.202 [Reserved]
31.203 Open meetings and public access to records.
Juvenile Justice Act Requirements
31.300 [Reserved]
31.301 Funding.
31.302 Applicant State agency.
31.303 Substantive requirements.
31.304 Definitions.
General Conditions and Assurances
31.400 [Reserved]
31.401 [Reserved]
31.402 Application on file.
31.403 [Reserved]
31.404 [Reserved]
Authority: 34 U.S.C. 11111(b); 34 U.S.C. 11131.
[[Page 31161]]
Subpart A--Formula Grants
General Provisions
Sec. 31.1 General.
(a) This implements subpart I of part B of the Juvenile Justice and
Delinquency Prevention Act of 1974, which authorizes a formula grant
program.
(b) In addition to this subpart, other rules or regulations may be
applicable to the formula grant program described in paragraph (a) of
this section; see, e.g., 2 CFR part 200 (Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards), as adopted by the Department of Justice through 2 CFR part
2800 or other applicable regulation; and 28 CFR part 42
(Nondiscrimination in Federally Assisted Programs--Implementation of
title VI of the Civil Rights Act of 1964).
(c) Unless expressly provided otherwise, any reference in this
subpart to any provision of Federal law not in this subpart shall be
understood to constitute a general reference and thus to include any
subsequent amendments to the provision.
Sec. 31.2 Statutory authority.
The Statute establishing the Office of Juvenile Justice and
Delinquency Prevention and giving authority to make grants for juvenile
justice and delinquency prevention improvement programs is the Juvenile
Justice and Delinquency Prevention Act of 1974, as amended (34 U.S.C.
11101 et seq.)
Sec. 31.3 [Reserved]
Eligible Applicants
Sec. 31.100 [Reserved]
Sec. 31.101 [Reserved]
Sec. 31.102 [Reserved]
Sec. 31.103 [Reserved]
General Requirements
Sec. 31.200 [Reserved]
Sec. 31.201 [Reserved]
Sec. 31.202 [Reserved]
Sec. 31.203 Open meetings and public access to records.
The State advisory group established pursuant to section 223(a)(3)
will follow applicable State open meeting and public access laws and
regulations in the conduct of meetings and the maintenance of records
relating to their functions.
Juvenile Justice Act Requirements
Sec. 31.300 [Reserved]
Sec. 31.301 Funding.
(a) [Reserved]
(b) Funds for local use. At least two-thirds of the formula grant
allocation to the state (other than the section 222(d) State Advisory
Group set aside) must be used for programs by local government, local
private agencies, and eligible Indian tribes, unless the State applies
for and is granted a waiver by the OJJDP. The proportion of pass-
through funds to be made available to eligible Indian tribes shall be
based upon that proportion of the state youth population under 18 years
of age who reside in geographical areas where the tribes perform law
enforcement functions.
(1) [Reserved]
(2) [Reserved]
(3) To carry out this requirement, OJJDP will annually provide each
state with the most recent Bureau of Census statistics on the number of
persons under age 18 living within the state, and the number of persons
under age 18 who reside in geographical areas where Indian tribes
perform law enforcement functions.
(4) Pass-through funds available to tribal entities under section
223(a)(5)(C) shall be made available within states to Indian tribes,
combinations of Indian tribes, or to an organization or organizations
designated by such tribe(s). Where the relative number of persons under
age 18 within a geographic area where an Indian tribe performs law
enforcement functions is too small to warrant an individual subgrant or
subgrants, the state may, after consultation with the eligible
tribe(s), make pass-through funds available to a combination of
eligible tribes within the state, or to an organization or
organizations designated by and representing a group of qualifying
tribes, or target the funds on the larger tribal jurisdictions within
the state.
(5) [Reserved]
(c) [Reserved]
(d) [Reserved]
(e) Nonparticipating States. Formula grant funds allocated to a
State which has failed to submit an application, plan, or monitoring
data establishing its eligibility for the funds will be reallocated to
the nonparticipating State program on September 30 of the fiscal year
for which the funds were appropriated. Reallocated funds will be
competitively awarded to eligible recipients pursuant to program
announcements.
Sec. 31.302 Applicant State agency.
(a) [Reserved]
(b) Advisory group. Pursuant to section 223(a)(3) of the JJDP Act,
the State shall provide a list of all current advisory group members,
indicating their respective dates of appointment and how each member
meets the membership requirements specified in this section of the Act.
(c) [Reserved]
Sec. 31.303 Substantive requirements.
(a) [Reserved]
(b) [Reserved]
(c) Deinstitutionalization of status offenders and non-offenders
(DSO). Pursuant to section 223(a) (11) of the JJDP Act, the State
shall:
(1) Describe its plan, procedure, and timetable covering the three-
year planning cycle, for assuring that the requirements of this section
are met. Refer to paragraph (f)(3) of this section for the rules
related to the valid court order exception to this Act requirement.
(2) Describe the barriers the State faces in achieving full
compliance with the provisions of this requirement.
(3) Apply this requirement to alien juveniles under Federal
jurisdiction who are held in State or local facilities.
(4) Those States which, based upon the most recently submitted
monitoring report, have been found to be in full compliance with
section 223(a)(11) may, in lieu of addressing paragraphs (c)(1) and (2)
of this section, provide an assurance that adequate plans and resources
are available to maintain full compliance.
(5) [Reserved]
(d) Separation. (1) Pursuant to section 223(a)(12) of the JJDP Act
the State shall:
(i) Describe its plan and procedure, covering the three-year
planning cycle, for assuring that the requirements of this section are
met. Separation must be accomplished architecturally or through
policies and procedures in all secure areas of the facility which
include, but are not limited to, such areas as admissions, sleeping,
and shower and toilet areas. Brief and inadvertent sight or sound
contact between juveniles alleged to be or found to be delinquent or
those within the purview of 34 U.S.C. 11133(a)(11)(A) and adult inmates
in secure areas of a facility that are not dedicated to use by
juveniles and which are nonresidential, which may include dining,
recreational, educational, vocational, health care, sally ports or
other entry areas, and passageways (hallways), would not require a
facility or the State to document or report such contact as a
violation. However, any contact in a dedicated juvenile area,
[[Page 31162]]
including any residential area of a secure facility, between juveniles
in a secure custody status and adult inmates would be a reportable
violation.
(ii) In those instances where accused juvenile criminal-type
offenders are authorized to be temporarily detained in facilities where
adults are confined, the State must set forth the procedures for
assuring no sight or sound contact between such juveniles and adult
inmates.
(iii) Describe the barriers which may hinder the separation of
alleged or adjudicated criminal type offenders, status offenders and
non-offenders from adult inmates in any particular jail, lockup,
detention or correctional facility.
(iv) Those States which, based upon the most recently submitted
monitoring report, have been found to be in compliance with section
223(a)(12) may, in lieu of addressing paragraphs (d)(1)(i), (ii), and
(iii) of this section, provide an assurance that adequate plans and
resources are available to maintain compliance.
(v) Assure that adjudicated delinquents are not reclassified
administratively and transferred to an adult (criminal) correctional
authority to avoid the intent of separating juveniles from adult
criminals in jails or correctional facilities. A State is not
prohibited from placing or transferring an alleged or adjudicated
delinquent who reaches the State's age of full criminal responsibility
to an adult facility when required or authorized by State law. However,
the administrative transfer, without statutory direction or
authorization, of a juvenile offender to an adult correctional
authority, or a transfer within a mixed juvenile and adult facility for
placement with adult criminals, either before or after a juvenile
reaches the age of full criminal responsibility, is prohibited. A State
is also precluded from transferring adult offenders to a juvenile
correctional authority for placement in a juvenile facility. This
neither prohibits nor restricts the waiver or transfer of a juvenile to
criminal court for prosecution, in accordance with State law, for a
criminal felony violation, nor the detention or confinement of a waived
or transferred criminal felony violator in an adult facility.
(2) [Reserved]
(e) Removal of juveniles from adult jails and lockups. Pursuant to
section 223(a)(13) of the JJDP Act, the State shall:
(1) Describe its plan, procedure, and timetable for assuring that
requirements of this section will be met.
(2) Describe the barriers that a State faces in removing all
juveniles from adult jails and lockups, except as provided in section
223(a)(13).
(3)(i) Determine whether or not a facility in which juveniles are
detained or confined is an adult jail or lockup. The JJDP Act prohibits
the detention of juveniles in adult jails and lockups, except as
otherwise provided under the Act and implementing OJJDP regulations.
Juvenile facilities collocated with adult facilities are considered
adult jails or lockups absent compliance with criteria established in
paragraphs (e)(3)(i)(C)(1), (2), and (4) of this section.
(A) A collocated facility is a juvenile facility located in the
same building as an adult jail or lockup, or is part of a related
complex of buildings located on the same grounds as an adult jail or
lockup. A complex of buildings is considered ``related'' when it shares
physical features such as walls and fences, or services beyond
mechanical services (heating, air conditioning, water and sewer).
(B) The State must determine whether a collocated facility
qualifies as a separate juvenile detention facility under the criteria
set forth in paragraphs (e)(3)(i)(C)(1), (2), and (4) of this section
for the purpose of monitoring compliance with section 223(a)(12)(A),
(13) and (14) of the JJDP Act.
(C) Each of the following criteria must be met in order to ensure
the requisite separateness of a juvenile detention facility that is
collocated with an adult jail or lockup:
(1) Separation between juveniles and adult inmates such that there
could be no sustained sight or sound contact between juveniles and
adult inmates in the facility. Separation can be achieved
architecturally or through time-phasing of common use nonresidential
areas; and
(2) Separate juvenile and adult programs, including recreation,
education, vocation, counseling, dining, sleeping, and general living
activities. There must be an independent and comprehensive operational
plan for the juvenile detention facility which provides for a full
range of separate program services. No program activities may be shared
by juveniles and adult inmates. Time-phasing of common use
nonresidential areas is permissible to conduct program activities.
Equipment and other resources may be used by both populations subject
to security concerns; and
(3) [Reserved.]
(4) In States that have established standards or licensing
requirements for juvenile detention facilities, the juvenile facility
must meet the standards (on the same basis as a free-standing juvenile
detention center) and be licensed as appropriate. If there are no State
standards or licensing requirements, OJJDP encourages States to
establish administrative requirements that authorize the State to
review the facility's physical plant, staffing patterns, and programs
in order to approve the collocated facility based on prevailing
national juvenile detention standards.
(ii) The State must determine that all of the criteria are fully
met. It is incumbent upon the State to make the determination through
an on-site facility (or full construction and operations plan) review
and, through the exercise of its oversight responsibility, to ensure
that the separate character of the juvenile detention facility is
maintained by continuing to fully meet the criteria set forth in
paragraphs (e)(3)(i)(C)(1), (2), and (4) of this section.
(iii) [Reserved]
(iv) An annual on-site review of the facility must be conducted by
the compliance monitoring staff person(s) representing or employed by
the State agency administering the JJDP Act Formula Grants Program. The
purpose of the annual review is to determine if compliance with the
criteria set forth in paragraphs (e)(3)(i)(C)(1), (2), and (4) of this
section is being maintained.
(4) Those States which, based upon the most recently submitted
monitoring report, have been found to be in full compliance with
section 223(a)(13) may, in lieu of addressing paragraphs (e)(1) and (2)
of this section, provide an assurance that adequate plans and resources
are available to maintain full compliance.
(f) Monitoring of jails, detention facilities and correctional
facilities. (1) Elements of a compliance monitoring system. Pursuant to
section 223(a)(14) of the JJDP Act, and except as provided by paragraph
(f)(7) of this section, the State shall:
(i) Describe its plan, procedure, and timetable for annually
monitoring jails, lockups, detention facilities, and correctional
facilities. The plan must at a minimum describe in detail each of the
following tasks including the identification of the specific agency(s)
responsible for each task.
(A) Identification of monitoring universe: This refers to the
identification of all facilities which might hold juveniles pursuant to
public authority and thus must be classified to determine if it should
be included in the monitoring effort. This includes those facilities
owned or operated by public and private agencies.
[[Page 31163]]
(B) Classification of the monitoring universe: This is the
classification of all facilities to determine which ones should be
considered as a secure detention or correctional facility, adult
correctional institution, jail, lockup, or other type of secure
facility.
(C) Inspection of facilities: Inspection of facilities is necessary
to ensure an accurate assessment of each facility's classification and
record keeping. The inspection must include:
(1) A review of the physical accommodations to determine whether it
is a secure or non-secure facility or whether adequate sight and sound
separation between juvenile and adult offenders exists and
(2) A review of the record keeping system to determine whether
sufficient data are maintained to determine compliance with section
223(a)(11), (12) and/or (13).
(D) Data collection and data verification: This is the actual
collection and reporting of data to determine whether the facility is
in compliance with the applicable requirement(s) of section 223(a)(11),
(12) and/or (13). The length of the reporting period should be 12
months of data. If the data is self-reported by the facility or is
collected and reported by an agency other than the State agency
designated pursuant to section 223(a)(1) of the JJDP Act, the plan must
describe a statistically valid procedure used to verify the reported
data.
(ii) Provide a description of the barriers which the State faces in
implementing and maintaining a monitoring system to report the level of
compliance with section 223(a)(11), (12), and (13) and how it plans to
overcome such barriers.
(iii) Describe procedures established for receiving, investigating,
and reporting complaints of violation of section 223(a)(11), (12), and
(13). This should include both legislative and administrative
procedures and sanctions.
(2) Monitoring for compliance with DSO. For the purpose of
monitoring for compliance with section 223(a)(11)(A) of the Act, a
secure detention or correctional facility is any secure public or
private facility used for the lawful custody of accused or adjudicated
juvenile offenders or nonoffenders, or used for the lawful custody of
accused or convicted adult criminal offenders. Accused status offenders
or nonoffenders in lawful custody can be held in a secure juvenile
detention facility for up to twenty-four hours, exclusive of weekends
and holidays, prior to an initial court appearance and for an
additional twenty-four hours, exclusive of weekends and holidays,
following an initial court appearance.
(3) Valid court order. For the purpose of determining whether a
valid court order exists and a juvenile has been found to be in
violation of that valid order all of the following conditions (in
addition to the requirements set out in section 223(a)(23) of the Act)
must be satisfied prior to secure incarceration:
(i) The juvenile must have been brought into a court of competent
jurisdiction and made subject to an order issued pursuant to proper
authority. The order must be one which regulates future conduct of the
juvenile. Prior to issuance of the order, the juvenile must have
received the full due process rights guaranteed by the Constitution of
the United States.
(ii) The court must have entered a judgment and/or remedy in accord
with established legal principles based on the facts after a hearing
which observes proper procedures.
(iii) [Reserved]
(iv) [Reserved]
(v) Prior to and during the violation hearing the following full
due process rights must be provided:
(A) The right to have the charges against the juvenile in writing
served upon him a reasonable time before the hearing;
(B) The right to a hearing before a court;
(C) The right to an explanation of the nature and consequences of
the proceeding;
(D) The right to legal counsel, and the right to have such counsel
appointed by the court if indigent;
(E) The right to confront witnesses;
(F) The right to present witnesses;
(G) The right to have a transcript or record of the proceedings;
and
(H) The right of appeal to an appropriate court.
(vi) [Reserved]
(4) [Reserved]
(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 34 U.S.C. 11133(a)(11), (12), and (13).
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.
(i) To demonstrate the extent of compliance with section
223(a)(11)(A) of the JJDP Act, the report must include, at a minimum,
the following information for the current reporting period:
(A) Dates covered by the current reporting period;
(B) Total number of public and private secure detention and
correctional facilities, the total number reporting, and the number
inspected on-site;
(C) The total number of accused status offenders and nonoffenders,
including out-of-State runaways and Federal wards, held in any secure
detention or correctional facility for longer than twenty-four hours
(not including weekends or holidays), excluding those held pursuant to
the valid court order provision as set forth in paragraph (f)(3) of
this section or pursuant to section 922(x) of title 18, United States
Code (which prohibits the possession of a handgun by a juvenile), or a
similar State law. A juvenile who violates this statute, or a similar
state law, is excepted from the deinstitutionalization of status
offenders requirement;
(D) The total number of accused status offenders (including valid
court order violators, out of state runaways, and Federal wards, but
excluding title 18 922(x) violators) and nonoffenders detained in any
adult jail, lockup, or nonapproved collocated facility for any length
of time;
(E) The total number of adjudicated status offenders and
nonoffenders, including out-of-state runaways and Federal wards, held
for any length of time in a secure detention or correctional facility,
excluding those held pursuant to the valid court order provision or
pursuant to title 18 U.S.C. 922(x);
(F) The total number of status offenders held in any secure
detention or correctional facility pursuant to the valid court order
provision set forth in paragraph (f)(3) of this section; and
(G) The total number of juvenile offenders held pursuant to title
18 U.S.C. 922(x).
(ii) To demonstrate the extent to which the provisions of section
223(a)(11)(B) of the JJDP Act are being met, the report must include
the total number of accused and adjudicated status offenders and
nonoffenders placed in facilities that are:
(A) Not near their home community;
(B) Not the least restrictive appropriate alternative; and
(C) Not community-based.
(iii) To demonstrate the extent of compliance with section
223(a)(12) of the JJDP Act, the report must include, at
[[Page 31164]]
a minimum, the following information for the current reporting period:
(A) Dates covered by the current reporting period;
(B) The total number of facilities used to detain or confine both
juvenile offenders and adult inmates during the past 12 months and the
number inspected on-site;
(C) The total number of facilities used for detention and
confinement of both juvenile offenders and adult inmates which did not
provide sight and sound separation;
(D) The total number of juvenile offenders and nonoffenders not
separated from adult inmates in facilities used for the detention and
confinement of both juveniles and adults;
(E) The total number of State approved juvenile detention centers
located within the same building or on the same grounds as an adult
jail or lockup, including a list of such facilities;
(F) The total number of juveniles detained in State approved
collocated facilities that were not separated from the management,
security or direct care staff of the adult jail or lockup;
(G) The total number of juvenile detention centers located within
the same building or on the same grounds as an adult jail or lockup
that have not been approved by the State, including a list of such
facilities; and
(H) The total number of juveniles detained in collocated facilities
not approved by the State that were not sight and sound separated from
adult inmates.
(iv) To demonstrate the extent of compliance with section
223(a)(13) of the JJDP Act, the report must include, at a minimum, the
following information for the current reporting period:
(A) Dates covered by the current reporting period;
(B) The total number of adult jails in the State AND the number
inspected on-site;
(C) The total number of adult lockups in the State AND the number
inspected on-site;
(D) The total number of adult jails holding juveniles during the
past twelve months;
(E) The total number of adult lockups holding juveniles during the
past twelve months;
(F) The total number of accused juvenile criminal-type offenders
detained in adult jails, lockups, and unapproved collocated facilities
in excess of six hours, including those held pursuant to the ``removal
exception'' as set forth in 34 U.S.C. 11133(a)(13)(B);
(G) The total number of accused juvenile criminal-type offenders
detained in adult jails, lockups and unapproved collocated facilities
for less than six hours for purposes other than identification,
investigations, processing, release to parent(s), transfer to court, or
transfer to a juvenile facility following initial custody;
(H) The total number of adjudicated juvenile criminal-type
offenders detained in adult jails or lockups and unapproved collocated
facilities in excess of six hours prior to or following a court
appearance or for any length of time not related to a court appearance;
(I) The total number of accused and adjudicated status offenders
(including valid court order violators) and nonoffenders detained in
adult jails, lockups and unapproved collocated facilities for any
length of time;
(J) The total number of adult jails, lockups, and unapproved
collocated facilities in areas meeting the ``removal exception'' as
noted in 34 U.S.C. 11133(a)(13)(B), including a list of such facilities
and the county or jurisdiction in which each is located;
(K) The total number of juveniles accused of a criminal-type
offense who were held in excess of six hours but less than 24 hours in
adult jails, lockups and unapproved collocated facilities pursuant to
the ``removal exception'' as set forth in 34 U.S.C. 11133(a)(13)(B);
(L) The total number of juveniles accused of a criminal-type
offense who were held in excess of 24 hours, but not more than an
additional 48 hours, in adult jails, lockups and unapproved collocated
facilities pursuant to the ``removal exception'' as noted in 34 U.S.C.
11133(a)(13)(B), due to conditions of distance or lack of ground
transportation; and
(M) The total number of juveniles accused of a criminal-type
offense who were held in excess of 24 hours, but not more than an
additional 24 hours after the time such conditions as adverse weather
allow for reasonably safe travel, in adult jails, lockups and
unapproved collocated facilities, in areas meeting the ``removal
exception'' as noted in 34 U.S.C. 11133(a)(13)(B).
(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) [Reserved]
(ii) [Reserved]
(iii) In determining the compliance standards to be applied to
States' 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 website by August 31st of each year.
(7) Monitoring report exemption. States which have been determined
by the OJJDP Administrator to have achieved full compliance with
sections 223(a)(11)(A), (a)(13), and compliance with section 223(a)(12)
of the JJDP Act and wish to be exempted from the annual monitoring
report requirements must submit a written request to the OJJDP
Administrator which demonstrates that:
(i) The State provides for an effective system of monitoring jails,
law enforcement lockup, detention facilities, to enable an annual
determination of State compliance with sections 223(a)(11)(A), (12),
and (13) of the JJDP Act;
(ii) State legislation has been enacted which conforms to the
requirements of sections 223(a)(11)(A), (12), and (13) of the JJDP Act;
and
(iii) The enforcement of the legislation is statutorily or
administratively prescribed, specifically providing that:
(A) Authority for enforcement of the statute is assigned;
(B) Time frames for monitoring compliance with the statute are
specified; and
(C) Adequate procedures are set forth for enforcement of the
statute and the imposition of sanctions for violations.
(g) [Reserved]
(h) Annual performance report. Pursuant to section 223(a)(22)(B),
the State plan shall provide for submission of an annual performance
report. The State shall report on its progress in the implementation of
the approved programs, described in the three-year plan. The
performance indicators will serve as the objective criteria for a
meaningful assessment of progress toward achievement of measurable
goals. The annual performance report shall describe progress made in
addressing the problem of serious juvenile crime, as documented in the
juvenile crime analysis pursuant to section 223(a)(7). The annual
performance report must be submitted to OJJDP no later than June 30 and
address all formula grant activities carried out during the previous
complete calendar year, federal fiscal year, or State fiscal year for
which
[[Page 31165]]
information is available, regardless of which year's formula grant
funds were used to support the activities being reported on, e.g.,
during a reporting period, activities may have been funded from two or
more formula grant awards.
(i) Technical assistance. States shall include, within their plan,
a description of technical assistance needs. Specific direction
regarding the development and inclusion of all technical assistance
needs and priorities will be provided in the ``Application Kit for
Formula Grants under the JJDPA.''
(j) [Reserved]
(k) [Reserved]
Sec. 31.304 Definitions.
(a) Criminal-type offender. A juvenile offender who has been
charged with or adjudicated for conduct which would, under the law of
the jurisdiction in which the offense was committed, be a crime if
committed by an adult.
(b) 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.
(c) Facility. A place, an institution, a building or part thereof,
set of buildings or an area whether or not enclosing a building or set
of buildings which is used for the lawful custody and treatment of
juveniles and may be owned and/or operated by public and private
agencies.
(d) Juvenile offender. An individual subject to the exercise of
juvenile court jurisdiction for purposes of adjudication and treatment
based on age and offense limitations by defined as State law, i.e., a
criminal-type offender or a status offender.
(e) Juvenile who has been adjudicated as having committed an
offense. A juvenile with respect to whom the juvenile court has
determined that such juvenile is a juvenile offender, i.e., a criminal-
type offender or a status offender.
(f) Juvenile who is accused of having committed an offense. A
juvenile with respect to whom a petition has been filed in the juvenile
court or other action has occurred alleging that such juvenile is a
juvenile offender, i.e., a criminal-type offender or a status offender,
and no final adjudication has been made by the juvenile court.
(g) Lawful custody. The exercise of care, supervision and control
over a juvenile offender or non-offender pursuant to the provisions of
the law or of a judicial order or decree.
(h) Local private agency. For the purposes of the pass-through
requirement of section 223(a)(5), a local private agency is defined as
a private non-profit agency or organization that provides program
services within an identifiable unit or a combination of units of
general local government.
(i) Non-offender. A juvenile who is subject to the jurisdiction of
the juvenile court, usually under abuse, dependency, or neglect
statutes for reasons other than legally prohibited conduct of the
juvenile.
(j) Other individual accused of having committed a criminal
offense. An individual, adult or juvenile, who has been charged with
committing a criminal offense in a court exercising criminal
jurisdiction.
(k) Other individual convicted of a criminal offense. An
individual, adult or juvenile, who has been convicted of a criminal
offense in court exercising criminal jurisdiction.
(l) Private agency. A private non-profit agency, organization or
institution is:
(1) Any corporation, foundation, trust, association, cooperative,
or accredited institution of higher education not under public
supervision or control; and
(2) Any other agency, organization or institution which operates
primarily for scientific, education, service, charitable, or similar
public purposes, but which is not under public supervision or control,
and no part of the net earnings of which inures or may lawfully inure
to the benefit of any private shareholder or individual, and which has
been held by IRS to be tax-exempt under the provisions of section
501(c)(3) of the 1954 Internal Revenue Code.
(m) Secure. As used to define a detention or correctional facility
this term includes residential facilities which include construction
features designed to physically restrict the movements and activities
of persons in custody such as locked rooms and buildings, fences, or
other physical structures. It does not include facilities where
physical restriction of movement or activity is provided solely through
facility staff.
General Conditions and Assurances
Sec. 31.400 [Reserved]
Sec. 31.401 [Reserved]
Sec. 31.402 Application on file.
Any Federal funds awarded pursuant to an application must be
distributed and expended pursuant to and in accordance with the
programs contained in the applicant State's current approved
application. Any departures therefrom, other than to the extent
permitted by current program and fiscal regulations and guidelines,
must be submitted for advance approval by the Administrator of OJJDP.
Sec. 31.403 [Reserved]
Sec. 31.404 [Reserved]
Dated: May 12, 2021.
Maureen A. Henneberg,
Acting Assistant Attorney General, Office of Justice Programs.
[FR Doc. 2021-10435 Filed 6-10-21; 8:45 am]
BILLING CODE 4410-18-P
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</html>Indexed from Federal Register on June 11, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.