2011-22160. Attorney General's Guidelines on Implementation of the Provisions of the Voting Rights Act Regarding Language Minority Groups

AGENCY:

Civil Rights Division, Department of Justice.

ACTION:

Final rule.

SUMMARY:

This rule updates the Attorney General's interpretative guidelines under the language minority provisions of the Voting Rights Act, which require certain states and political subdivisions to conduct elections in the language of certain “language minority groups” in addition to English. The rule reflects 2006 statutory amendments extending the time period for which covered jurisdictions must adhere to the minority language requirements in sections 4(f)(4) and 203 of the Voting Rights Act. The rule also amends the Appendix to the guidelines to reflect 2002 coverage determinations based upon the 2000 Census made by the Director of the Census pursuant to section 203(b) of the Act. It also makes technical changes to conform the guidelines to the 2006 and 2008 amendments to the Voting Rights Act, the 2002 Census determinations, and a 2009 Supreme Court decision, as well as to add or correct statutory citations.

DATES:

Effective Date: August 31, 2011.

FOR FURTHER INFORMATION CONTACT:

T. Christian Herren, Jr., Chief, Voting Section, Civil Rights Division, United States Department of Justice, Room 7254-NWB, 950 Pennsylvania Avenue, NW., Washington, DC 20530, or by telephone at 800-253-3931.

SUPPLEMENTARY INFORMATION:

Section 203 of the Voting Rights Act, which requires covered jurisdictions to use languages in addition to English in the electoral process, was added to the Voting Rights Act in 1975, and was amended and extended in 1982, 1992, and, most recently, on July 27, 2006. 120 Stat. 577, Public Law 109-246. The 2006 amendments to the Voting Rights Act extended the requirements of section 203 until August 6, 2032. Section 4(f)(4) of the Voting Rights Act, which requires certain jurisdictions covered by the other special provisions of the Act to use languages in addition to English in the electoral process, was added to the Voting Rights Act in 1975, and was extended in 1982 and in 2006. The 2006 amendments to the Voting Rights Act extended the requirements of section 4(f)(4) until 25 years from the July 27, 2006 date of the enactment of those amendments.

Pursuant to section 203(b) of the Voting Rights Act, 42 U.S.C. 1973aa-1a(b), the Director of the Census published in the Federal Register on July 26, 2002, new determinations of coverage based upon the 2000 Census. 67 FR 48871. Under the terms of section 203(b)(4), these determinations became effective upon publication in the Federal Register and are not subject to judicial review. Also, on July 26, 2002, the Assistant Attorney General of the Civil Rights Division sent a letter to each covered jurisdiction to notify the jurisdiction of the determinations of coverage, the language minority group or groups for which the jurisdiction is covered, and to provide suggestions to the jurisdiction for developing a successful program of compliance. These letters provided the jurisdictions with a copy of the Census determinations, as published on July 26, 2002, in the Federal Register, and a copy of the then-existing Attorney General's interpretative guidelines, 28 CFR part 55.

This rule conforms the Attorney General's language minority interpretative guidelines, 28 CFR part 55, to the new determinations of coverage. No new determinations of coverage have been made pursuant to section 4(f)(4) of the Act. Further information about the language minority requirements of the Act can be found on the Web site of the Voting Section of the U.S. Department of Justice Civil Rights Division at http://www.justice.gov/​crt/​voting.

The definition of “Act” in § 55.1 (describing the amendments to the Voting Rights Act) has been amended to reflect the fact of the enactment of the 2006 and 2008 amendments to the Voting Rights Act. Paragraph (a) of § 55.4 has been amended to add statutory citations. Paragraphs (a) and (b) of § 55.7 have been amended to reflect the extension of the time period for the requirements of sections 4(f)(4) and 203 contained in the 2006 amendments to the Voting Rights Act. These paragraphs also have been amended to clarify that earlier termination of these requirements is possible through a bailout action, and to incorporate the United States Supreme Court's interpretation of the bailout provision of section 4(a) of the Voting Rights Act contained in Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. __, 129 S. Ct. 2504 (2009). Paragraph (b) of § 55.8 has been amended to reflect the change in the 2006 amendments to the Voting Rights Act repealing provisions relating to Federal examiners and substituting references to federal observers. The last sentence in § 55.11 has been amended to reflect the manner in which the Director of the Census reported the new coverage determinations under Section 203 after the 2000 Census. Paragraph (b) of § 55.23 is amended to correct an erroneous statutory citation. The Appendix to Part 55 has been revised to reflect the 2002 determinations of the Director of the Census based upon 2000 Census data.

Administrative Procedure Act 5 U.S.C. 553

This rule amends interpretative rules and is therefore exempt from the notice requirement of 5 U.S.C. 553(b) and the opportunity for public participation requirement of 5 U.S.C. 553(c), and the delayed effective date requirement of 5 U.S.C. 553(d) is not mandatory. As provided in 28 CFR 55.24, comments and suggestions from interested persons on the Attorney General's language minority guidelines are always welcome.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule and by approving it certifies that this rule will not have a significant economic impact on a substantial number of small entities because it applies only to governmental entities and jurisdictions that already are required by sections 4(f)(4) and 203 of the Voting Rights Act to provide information related to elections and voting in one or more languages other than English, and this rule does not change these requirements. These jurisdictions have been subject to the requirements of section 4(f)(4) since at least 1975 or 1976, and have been subject to the requirements of section 203 since at least 2002, when the most recent determinations of the Director of the Census were published in the Federal Register. In addition, a Regulatory Flexibility Analysis was not required to be prepared for this rule because the Department was not required to publish a general notice of proposed rulemaking for this matter.

Executive Order 12866—Regulatory Planning and Review

This rule has been drafted and reviewed in accordance with Executive Order 12866 Regulatory Planning and Review, § 1(b), Principles of Regulation. This rule merely updates an appendix to reflect determinations made by the Bureau of the Census and makes minor technical changes in pre-existing interpretative rules and, therefore, is not a ”regulation” or ”rule” as defined by Executive Order 12866, § 3(d). Accordingly, this rule has not been reviewed by the Office of Management and Budget.

Executive Order 13132—Federalism

This rule does not have federalism implications warranting the preparation of a federalism assessment under Section 6 of Executive Order 13132 because the rule does not alter or modify the existing, statutory requirements of Section 203 of the Voting Rights Act imposed on the states, including units of local government or political subdivisions of the states.

Executive Order 12988—Civil Justice Reform

This rule meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988.

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. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Plain Language Instructions

Suggestions on improving the clarity of this document should be provided by mail to T. Christian Herren, Jr., Chief, Voting Section, Civil Rights Division, United States Department of Justice, Room 7254-NWB, 950 Pennsylvania Avenue, NW., Washington, DC 20530, or by telephone to 800-253-3931.

Congressional Review Act

This action pertains to agency organization, procedure, or practice and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Part 55

• Administrative practice and procedure
• Civil rights
• Elections
• Voting rights

Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301, 28 U.S.C. 509 and 510, 42 U.S.C. 1973b, 1973j(d), 1973aa-1a and 1973aa-2, and for the reasons set forth in the preamble, Part 55 of title 28 of the Code of Federal Regulations is amended as set forth below.

PART 55—IMPLEMENTATION OF THE PROVISIONS OF THE VOTING RIGHTS ACT REGARDING LANGUAGE MINORITY GROUPS

1. The authority citation continues to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 1973b, 1973j(d), 1973aa-1a, 1973aa-2.

2. Amend § 55.1 by revising the definition of “Act” to read as follows:

§ 55.1

Definitions.

* * * * *

Act means the Voting Rights Act of 1965, 79 Stat. 437, Public Law 89-110, as amended by the Civil Rights Act of 1968, 82 Stat. 73, Public Law 90-284, the Voting Rights Act Amendments of 1970, 84 Stat. 314, Public Law 91-285, the District of Columbia Delegate Act, 84 Stat. 853, Public Law 91-405, the Voting Rights Act Amendments of 1975, 89 Stat. 400, Public Law 94-73, the Voting Rights Act Amendments of 1982, 96 Stat. 131, Public Law 97-205, the Voting Rights Language Assistance Act of 1992, 106 Stat. 921, Public Law 102-344, the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577, Public Law 109-246, and the Act to Revise the Short Title of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act, 122 Stat. 2428, Public Law 110-258, 42 U.S.C. 1973 et seq. Section numbers, such as “section 14(c)(3),” refer to sections of the Act.

* * * * *

3. Amend § 55.4 by revising paragraph (a) to read as follows:

§ 55.4

Effective date; list of covered jurisdictions.

(a) The minority language provisions of the Voting Rights Act were added by the Voting Rights Act Amendments of 1975, and amended and extended in 1982, 1992, and 2006.

(1) The requirements of section 4(f)(4) take effect upon publication in the Federal Register of the requisite determinations of the Director of the Census and the Attorney General. Such determinations are not reviewable in any court. See section 4(b).

(2) The requirements of section 203(c) take effect upon publication in the Federal Register of the requisite determinations of the Director of the Census. Such determinations are not reviewable in any court. See section 203(b)(4).

* * * * *

4. Revise § 55.7 to read as follows:

§ 55.7

Termination of coverage.

(a) Section 4(f)(4). The requirements of section 4(f)(4) apply for a twenty-five-year period following the effective date of the amendments made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, César E. Chávez, Barbara C. Jordan, William C. Velásquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of 2006, which amendments became effective on July 27, 2006. See section 4(a)(8). A covered State, a political subdivision of a covered State, a separately covered political subdivision, or a political subunit of any of the above, may terminate the application of section 4(f)(4) earlier by obtaining the declaratory judgment described in section 4(a) of the Act.

(b) Section 203(c). The requirements of section 203(c) apply until August 6, 2032. See section 203(b). A covered jurisdiction may terminate Section 203 coverage earlier if it can prove in a declaratory judgment action in a United States district court, that the illiteracy rate of the applicable language minority group is equal to or less than the national illiteracy rate, as described in section 203(d) of the Act.

5. Amend § 55.8 by revising paragraph (b) to read as follows:

§ 55.8

Relationship between section 4(f)(4) and section 203(c).

* * * * *

(b) Jurisdictions subject to the requirements of section 4(f)(4)—but not jurisdictions subject only to the requirements of section 203(c)—are also subject to the Act's special provisions, such as section 5 (regarding preclearance of changes in voting laws) and section 8 (regarding federal observers).^[2] See part 51 of this chapter.

* * * * *

6. Amend § 55.11 by revising the last sentence to read as follows:

§ 55.11

General.

* * * For those jurisdictions covered under section 203(c), the coverage determination (indicated in the appendix) may specify the particular language minority group (in parentheses) for which the jurisdiction is covered, but does not specify the language or dialect to be used for such group.

7. Amend § 55.23 by revising paragraph (b) to read as follows:

§ 55.23

Enforcement by the Attorney General.

* * * * *

(b) Also, certain violations may be subject to criminal sanctions. See sections 12(a) and (c) and 205.

8. Revise the Appendix to part 55 to read as follows:

Appendix to Part 55—Jurisdictions Covered Under Sections 4(f)(4) and 203(c) of the Voting Rights Act of 1965, as Amended [Applicable language minority group(s)]

Jurisdiction	Coverage under sec. 4(f)(4) 1	Coverage under sec. 203(c) 2
1 Coverage determinations for Section 4(f)(4) were published at 40 FR 43746 (Sept. 23, 1975), 40 FR 49422 (Oct. 22, 1975), 41 FR 783 (Jan. 5, 1976) (corrected at 41 FR 1503 (Jan. 8, 1976)), and 41 FR 34329 (Aug. 13, 1976). The Voting Section maintains a current list of those jurisdictions that have maintained successful declaratory judgments from the United States District Court for the District of Columbia pursuant to section 4 of the Act on its Web site at http://www.justice.gov/​crt/​about/​vot/​. See § 55.7 of this part.
2 Coverage determinations for Section 203 based on 2000 Census data were published at 67 FR 48871 (July 26, 2002). Subsequent coverage determinations for Section 203 will be based on 2010 American Community Survey census data and subsequent American Community Survey data in 5-year increments, or comparable census data. See section 203(b)(2)(A). New coverage determinations for Section 203 by the Director of the Census Bureau are forthcoming.

Dated: August 24, 2011.

Eric H. Holder, Jr.,

Attorney General.

Footnotes

2.  In addition, a jurisdiction covered under section 203(c) but not under section 4(f)(4) is subject to the Act's special provisions if it was covered under section 4(b) prior to the 1975 Amendments to the Act.