[Federal Register Volume 84, Number 171 (Wednesday, September 4, 2019)]
[Rules and Regulations]
[Pages 46423-46426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19023]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 37

RIN 1601-AA91


Minimum Standards for Driver's Licenses and Identification Cards 
Acceptable by Federal Agencies for Official Purposes; Implementation of 
the REAL ID Act Modification for Freely Associated States Act

AGENCY: Office of the Secretary, DHS.

ACTION: Final rule.

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SUMMARY: This final rule implements the REAL ID Act Modification for 
Freely Associated States Act by amending the regulatory definition of 
``temporary lawful status.'' With this change, citizens of the Freely 
Associated States residing in the United States are eligible for full-
term REAL ID licenses and identification cards, provided they satisfy 
the other requirements of the REAL ID Act and regulations.

DATES: Effective September 4, 2019.

FOR FURTHER INFORMATION CONTACT: Steve Yonkers, Director, Identity and 
Credentialing/REAL ID Program, U.S. Department of Homeland Security 
Office of Policy, Strategy, and Plans, Washington, DC 20528, (202) 447-
3274.

SUPPLEMENTARY INFORMATION: 

I. Background

    The REAL ID Act of 2005 \1\ and its implementing Department of 
Homeland Security (DHS) regulations \2\ authorize REAL ID compliant 
states to issue temporary or limited-term REAL ID compliant driver's 
licenses and identification cards to certain nonimmigrant aliens who 
satisfy other REAL ID eligibility requirements. These temporary 
driver's licenses or identification cards cannot be issued with a 
validity period longer than the alien's authorized period of stay in 
the United States or, if there is no definite end to the period of 
authorized stay, a period of one year.\3\
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    \1\ Emergency Supplemental Appropriations Act for Defense, the 
Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13, 
119 Stat. 231, 302, Div. B (codified at 49 U.S.C. 30301 note).
    \2\ 6 CFR part 37.
    \3\ REAL ID Act Sec.  202(c)(2)(c)(ii); 6 CFR 37.21(b)(1).

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[[Page 46424]]

    Under the Compacts of Free Association between the United States 
and the Republic of the Marshall Islands, the Federated States of 
Micronesia, and the Republic of Palau (collectively referred to as the 
Freely Associated States, or FAS), citizens of the Freely Associated 
States are eligible to be admitted to the United States as 
nonimmigrants without a visa, and live and work in the United States 
indefinitely.\4\ Because FAS citizens are authorized to have an 
indefinite period of authorized stay in the United States (known as 
``duration of status'' or ``D/S'')--but FAS citizens are not U.S. 
citizens--States that issue temporary driver's licenses or 
identification cards to FAS citizens generally subject those FAS 
citizens' driver's licenses or identification cards to the one-year 
temporary license limitation. FAS citizens who present a USCIS Form I-
766 Employment Authorization Document (EAD) to establish identity may 
obtain a REAL ID compliant driver's license or identification card with 
a validity period as long as the validity period of the EAD, which in 
the case of FAS citizens is up to five years.
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    \4\ See Public Law 108-188 (48 U.S.C. 1921 note) (Republic of 
the Marshall Islands and Federated States of Micronesia); Public Law 
99-658 (48 U.S.C. 1931 and 1931 note) (Palau).
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    The REAL ID Act Modification for Freely Associated States Act, 
Public Law 115-323, signed into law on December 17, 2018, addresses 
this issue by amending the REAL ID Act to authorize states to issue to 
FAS citizens residing indefinitely in the United States full-term REAL 
ID driver's licenses or identification cards.\5\ This final rule 
updates the REAL ID regulations to reflect this statutory change by 
amending the regulatory definition of ``temporary lawful status'' to 
specifically exclude individuals admitted as nonimmigrants under the 
Compacts of Free Association between the United States and the Republic 
of the Marshall Islands, the Federated States of Micronesia, and the 
Republic of Palau. With this change, citizens of the Freely Associated 
States residing in the United States are eligible for full-term REAL ID 
driver's licenses and identification cards, provided they satisfy the 
other requirements of the REAL ID Act and regulations.
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    \5\ The REAL ID Act Modification for Freely Associated States 
Act, Public Law 115-323, sec. 2(b). In addition to authorizing 
states to issue FAS citizens full-term REAL ID licenses and 
identification cards, the Act amended the REAL ID definition of 
``state'' by striking the reference to the ``Trust Territory of the 
Pacific Islands'' which no longer exists. As DHS regulations already 
correctly do not include the Trust Territory of the Pacific Islands 
in the definition of ``State,'' no change to the regulations is 
necessary to reflect that amendment. See 6 CFR 37.3.
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II. The REAL ID Act Modification for Freely Associated States Act

    The REAL ID Act prohibits federal agencies from accepting a State-
issued driver's license or identification card for any official purpose 
unless the license or card is issued by a State that meets the 
requirements set forth in the REAL ID Act.\6\ Under Section 201(3) of 
the REAL ID Act, official purpose as defined in the REAL ID Act 
includes accessing federal facilities, boarding federally regulated 
commercial aircraft, entering nuclear power plants, and any other 
purpose as determined by the Secretary of Homeland Security. Section 
202(c) of the REAL ID Act requires an applicant for a driver's license 
or identification card to present, and for the State to verify, 
documentation and information evidencing the applicant's identity, date 
of birth, social security number or verification that the person is not 
eligible for a social security number, address of principal residence, 
and U.S. citizenship or lawful status. Id. Certain aliens including 
those who are in a valid nonimmigrant status, who have pending 
applications for asylum, who have pending or approved applications for 
temporary protected status, who have approved deferred action status, 
or who have pending applications for adjustment to permanent residence 
or conditional permanent residence, may only receive a temporary REAL 
ID driver's license or identification card. Id. Temporary driver's 
licenses or identification cards can be valid either until the 
expiration of the applicant's authorized stay in the United States or, 
if there is no definite end to the period of authorized stay, a period 
of one year. Id.
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    \6\ The Emergency Supplemental Appropriations Act for Defense, 
the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-
13, 119 Stat. 231, 302, Div. B (codified at 49 U.S.C. 30301 note).
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    The Compacts of Free Association permit citizens of the Freely 
Associated States to be admitted as nonimmigrants to the United States 
without a visa and to live and work in the United States indefinitely. 
Because the Compacts of Free Association do not establish a specific 
time period for admission or duration of stay in the United States, 
under current regulations FAS citizens residing in the United States 
can be eligible for a temporary REAL ID driver's license or 
identification card that is valid only for one year, although as 
described above, the validity period can be as long as an EAD validity 
period of up to five years. According to the legislative history 
accompanying the REAL ID Act Modification for Freely Associated States 
Act, the inability to acquire full-term licenses impacts certain 
opportunities for FAS citizens including opportunities for jobs, 
housing, transportation, and education, notwithstanding the fact that 
these individuals may reside in the United States for lengthy 
periods.\7\
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    \7\ H.R. Rep. No. 115-945, at 2 (2018).
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    To address this issue, the REAL ID Act Modification for Freely 
Associated States Act amends the REAL ID Act to authorize States to 
issue REAL ID driver's licenses or identification cards to citizens of 
the Republic of the Marshall Islands, the Federated States of 
Micronesia, and the Republic of Palau who are admitted to the United 
States as nonimmigrants under the Compacts of Free Association, for the 
maximum period of validity authorized by Section 202(d) of the REAL ID 
Act, which is up to eight years. This final rule updates the REAL ID 
regulation to reflect this statutory change. Specifically, this final 
rule amends the definition of ``temporary lawful status'' at 6 CFR 37.3 
to specifically exclude individuals admitted as nonimmigrants under the 
Compacts of Free Association between the United States and the Republic 
of the Marshall Islands, the Federated States of Micronesia, and the 
Republic of Palau.\8\ As a result, these individuals are no longer 
subject to 6 CFR 37.21, prescribing requirements for temporary or 
limited-term licenses and identification cards for those with temporary 
lawful status. Therefore, these individuals are eligible to receive 
full-term REAL ID licenses and identification cards, provided they 
satisfy the other REAL ID requirements including requirements to 
present documentation establishing identity, date of birth, social 
security number, address of principal residence, and lawful status.\9\
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    \8\ It is not necessary to amend the definition of ``lawful 
status'' in 6 CFR 37.3, because that definition already includes an 
alien ``who has a valid nonimmigrant status in the United States,'' 
which includes (but is not limited to) nonimmigrants admitted under 
the Compacts of Free Association.
    \9\ See 6 CFR 37.11. Note that an FAS passport with Form I-94, 
but no visa, is not acceptable evidence of identity under the REAL 
ID regulations. Id. at Sec.  37.11(c)(1). The immigration document 
available to FAS nonimmigrants admitted under the Compacts of Free 
Association that is acceptable evidence of identity for REAL ID Act 
purposes is the unexpired employment authorization document (EAD). 
Id. at Sec.  37.11(c)(1)(v).

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[[Page 46425]]

III. Regulatory Analyses

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) provides that an agency may 
dispense with notice and comment rulemaking procedures when an agency, 
for ``good cause,'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' See 5 U.S.C. 
553(b)(B). DHS finds that notice and comment rulemaking in this 
instance is impracticable, unnecessary, and contrary to the public 
interest. The amendment to the REAL ID regulation made by this final 
rule implements the REAL ID Act Modification for Freely Associated 
States Act by authorizing States to issue full-term REAL ID licenses or 
identification to FAS citizens. The amendment conforms the regulations 
to the statute and does not alter other REAL ID requirements necessary 
for citizens of the Freely Associated States to obtain REAL ID driver's 
licenses or identification cards, including requirements to present 
documentation establishing identity, date of birth, social security 
number, address of principal residence, and lawful status. FAS citizens 
seeking to obtain a full-term driver's license or identification card 
must still satisfy these and other REAL ID requirements. Additionally, 
because the bill was signed into law, citizens of the Republic of the 
Marshall Islands, the Federated States of Micronesia, and the Republic 
of Palau residing in the United States will likely seek to start 
immediately obtaining full-term State driver's licenses and 
identification cards. Based on the above, DHS finds that notice and 
comment rulemaking in this instance would be impracticable, 
unnecessary, and contrary to the public interest.
    For the same reasons, DHS also finds good cause to make this rule 
effective immediately upon publication in the Federal Register. See 5 
U.S.C. 553(d)(3).

B. Executive Orders 12866, 13563, and 13771

    Executive Order 12866 defines ``significant regulatory action'' as 
one that is likely to result in a rule that may (1) have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or Tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. Executive Order 13771 
on Reducing Regulation and Controlling Regulatory Costs directs 
agencies to reduce regulation and control regulatory costs and provides 
that for every one new regulation issued, at least two prior 
regulations be identified for elimination, and that the cost of planned 
regulations be prudently managed and controlled through a budgeting 
process.
    This rule does not constitute a ``significant regulatory action'' 
under Executive Order 12866, as supplemented by Executive Order 13563, 
and therefore does not require review by the Office of Management and 
Budget (OMB). As this rule is not a significant regulatory action it is 
not subject to the requirements of Executive Order 13771.
    As previously discussed, citizens of the FAS residing in the United 
States are eligible for a temporary driver's license under the REAL ID 
Act. This rule will allow citizens of the FAS residing in the United 
States to be eligible for full-term REAL ID licenses and identification 
cards. These full-term licenses could last up to eight years.
    FAS citizens should benefit from this rule. The inability to 
acquire full-term licenses impacts certain opportunities for FAS 
citizens including opportunities for jobs, housing, transportation, and 
education, notwithstanding the fact that these individuals may reside 
in the United States for lengthy periods.\10\
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    \10\ H.R. Rep. No. 115-945, at 2 (2018).
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C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121), requires Federal agencies to consider the 
potential impact of regulations on small businesses, small government 
jurisdictions, and small organizations during the development of their 
rules. This final rule, however, makes changes for which notice and 
comment are not necessary. Accordingly, DHS is not required to prepare 
a regulatory flexibility analysis. See 5 U.S.C. 603, 604.

D. Paperwork Reduction Act

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. Executive Order 12132 (Federalism)

    A rule has implications for federalism under Executive Order 13132, 
``Federalism,'' if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have these implications 
for federalism.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 to 1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Unfunded Mandates Reform Act 
addresses actions that may result in the expenditure by a State, local, 
or Tribal government, in the aggregate, or by the private section of 
$100 million (adjusted for inflation) or more in any one year. This 
final rule will not result in such an expenditure.

G. Executive Order 13175 (Tribal Consultation)

    This rule does not have Tribal Implications under Executive Order 
13175, ``Consultation and Coordination with Indian Tribal 
Governments,'' because it does not have a substantial direct effect on 
one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.

H. Executive Order 13211 (Energy Impact Analysis)

    DHS has analyzed this rule under Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply 
Distribution, or Use.'' DHS has determined that it is not a 
``significant energy action'' under that Order and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

List of Subjects in 6 CFR Part 37

    Document security, driver's licenses, identification cards, 
incorporation by reference, motor vehicle administrations, physical 
security.

The Amendments

    For the reasons set forth above, the Department of Homeland 
Security amends 6 CFR part 37 as follows:

[[Page 46426]]

PART 37--REAL ID DRIVER'S LICENSES AND IDENTIFICATION CARDS

0
1. The authority citation for part 37 continues to read as follows:

    Authority: 49 U.S.C. 30301 note; 6 U.S.C. 111, 112.


0
2. In Sec.  37.3, revise the definition of ``Temporary lawful status'' 
to read as follows:


Sec.  37.3  Definitions.

* * * * *
    Temporary lawful status: A person in temporary lawful status is a 
person who: Has a valid nonimmigrant status in the United States (other 
than a person admitted as a nonimmigrant under the Compacts of Free 
Association between the United States and the Republic of the Marshall 
Islands, the Federated States of Micronesia, or the Republic of Palau); 
has a pending application for asylum in the United States; has a 
pending or approved application for temporary protected status (TPS) in 
the United States; has approved deferred action status; or has a 
pending application for LPR or conditional permanent resident status.
* * * * *

David Pekoske,
Senior Official Performing the Duties of the Deputy Secretary.
[FR Doc. 2019-19023 Filed 9-3-19; 8:45 am]
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