[Federal Register Volume 84, Number 199 (Tuesday, October 15, 2019)]
[Rules and Regulations]
[Pages 55017-55019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22325]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 84 , No. 199 / Tuesday, October 15, 2019 / 
Rules and Regulations  

[[Page 55017]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 37

[Docket No. DHS-2006-0030]
RIN 1601-AA92


Minimum Standards for Driver's Licenses and Identification Cards 
Acceptable by Federal Agencies for Official Purposes; Deadline for No 
Longer Accepting Non-Compliant Driver's Licenses and Identification 
Cards for Official Purposes

AGENCY: Office of Strategy, Policy and Plans, Department of Homeland 
Security (DHS).

ACTION: Final rule.

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SUMMARY: This final rule amends the REAL ID regulation to clarify that 
the October 1, 2020, deadline by which Federal agencies may no longer 
accept non-compliant driver's licenses and identification cards for 
official purposes applies to all non-compliant cards, including state-
issued driver's licenses and identification cards marked to indicate 
that they may not be used for official Federal purposes. This 
regulation is consistent with enforcement dates in previous DHS public 
statements, information posted on the DHS website, and communication 
with industry stakeholders.

DATES: Effective October 15, 2019.

FOR FURTHER INFORMATION CONTACT: Steve Yonkers, Director, Biometrics 
and Credentialing/REAL ID Program, Department of Homeland Security, 
Washington, DC 20528, telephone (202) 447-3274; email 
[email protected].

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Document

    You may obtain an electronic copy of the rule using the internet 
by--
    (1) Searching the electronic Federal Docket Management System 
(FDMS) web page at http://www.regulations.gov; or
    (2) Accessing the Government Publishing Office's web page at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR to view 
the daily published Federal Register edition; or accessing the ``Search 
the Federal Register by Citation'' in the ``Related Resources'' column 
on the left, if you need to do a Simple or Advanced search for 
information, such as a type of document that crosses multiple agencies 
or dates.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to 
identify the docket number of this rulemaking.

I. Background

    The REAL ID Act (the Act) sets minimum security requirements for 
the issuance and production of State and territory driver's licenses 
and identification cards in order for Federal agencies to accept these 
documents for official purposes.\1\ Official purposes include: (1) 
Accessing Federal facilities; (2) boarding federally-regulated 
commercial aircraft; (3) entering nuclear power plants; and (4) any 
other purposes that the Secretary of Homeland Security shall 
determine.\2\
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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 (May 11, 2005) (codified at 49 U.S.C. 30301 
note).
    \2\ Id.
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    On January 29, 2008, DHS published a final rule implementing the 
Act's requirements.\3\ The regulation includes both a State compliance 
deadline and a schedule describing when individuals must obtain a 
compliant driver's license or identification card in order to use that 
card for official purposes.\4\ DHS refers to these two deadlines as 
``state-based'' and ``card-based'' enforcement, respectively.\5\
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    \3\ Minimum Standards for Driver's Licenses and Identification 
Cards Acceptable by Federal Agencies for Official Purposes; Final 
Rule, 73 FR 5272 (Jan. 29, 2008); codified at 6 CFR part 37 (2008 
Final Rule). DHS subsequently issued four other Final Rules amending 
the regulation, including changes to compliance deadlines and state 
extension submission dates. See 74 FR 49308 (Sep. 28, 2009), 74 FR 
68477 (Dec. 28, 2009) (Final Rule, stay), 76 FR 12269 (Mar. 7, 
2011), 79 FR 77836 (Dec. 29, 2014). In addition to Final Rules, DHS 
also published an Information Collection Request in the Federal 
Register in 2016. See 81 FR 8736 (Feb. 22, 2016).
    \4\ See id. at Sec. Sec.  37.5(b), 37.51(a). See 79 FR 77836 
(Dec. 29, 2014).
    \5\ See https://www.dhs.gov/federal-enforcement.
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    For state-based enforcement, the regulation prohibits Federal 
agencies from accepting cards issued by States and territories that are 
not compliant with the REAL ID standards.\6\ DHS incrementally enforced 
this regulatory deadline through a Phased Enforcement Schedule.\7\ This 
phased schedule included initial enforcement at DHS headquarters, 
followed by Federal facilities and nuclear power plants.\8\ The final 
phase of the enforcement schedule, applicable to individuals boarding 
federally-regulated commercial aircraft, began January 22, 2018.\9\
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    \6\ See 6 CFR 37.51(a).
    \7\ See DHS Releases Phased Enforcement Schedule for REAL ID, 
available at https://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id.
    \8\ Id.
    \9\ See Statement By Secretary Jeh C. Johnson on the Final Phase 
of REAL ID Act Implementation, available at https://www.dhs.gov/news/2016/01/08/statement-secretary-jeh-c-johnson-final-phase-real-id-act-implementation.
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    Card-based enforcement begins October 1, 2020, pursuant to the 
regulation.\10\ On and after this date, Federal agencies are prohibited 
from accepting for official purposes a state or territory issued 
driver's license or identification card unless the card is compliant 
with the REAL ID Act and regulation.\11\ This deadline applies to all 
cards used for official purposes under the REAL ID Act and 
regulation.\12\
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    \10\ 6 CFR 37.5(b).
    \11\ Id.
    \12\ Id. at Sec.  37.3.
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II. Non-Compliant Cards--Enforcement Deadline

    Under the REAL ID Act and regulation, once a State is REAL ID 
compliant, the State is permitted to continue issuing both compliant 
and non-compliant cards to residents.\13\ The non-compliant cards, 
however, must be ``marked'' to clearly distinguish both on their face 
and in the card's machine readable zone that they are not acceptable by 
Federal agencies for official purposes.\14\ DHS approved several 
variations of this non-compliant marking, including, '' Not For REAL ID 
Purposes,'' ``Not Valid for Federal Identification,'' ``Not Valid for 
Federal

[[Page 55018]]

Official Purposes,'' ``Not Acceptable for Federal Purposes,'' ``Not for 
Federal Identification,'' and ``Federal Limits Apply.'' The non-
compliant ``marked'' cards must also have a unique design or color that 
clearly distinguishes them from the State's REAL ID compliant driver's 
licenses and identification cards.\15\
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    \13\ REAL ID Act, sec. 202(d)(11); 6 CFR 37.5, 37.71.
    \14\ Id.
    \15\ 6 CFR 37.71.
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    The REAL ID regulation provides that beginning October 1, 2020, 
Federal agencies may only accept for official purposes State or 
territory-issued licenses and identification cards if those licenses 
and cards are REAL ID compliant.\16\ Although the regulation also notes 
that Federal agencies will not accept non-compliant ``marked'' cards 
for official purposes, it does not reiterate the October 1, 2020, 
deadline.\17\ This final rule clarifies that Federal agencies may no 
longer accept non-compliant marked cards beginning October 1, 2020.
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    \16\ Id. at Sec.  37.5(b). In addition to state or territory-
issued driver's licenses and identification cards, agencies may 
accept other forms of identification (for example, a passport), 
pursuant to their own policies. Individuals should consult in 
advance with agencies they plan on visiting to obtain information 
regarding identification requirements.
    \17\ See id. at Sec.  37.5(c), ``Federal agencies cannot accept 
for official purpose driver's licenses and identification cards 
issued under Sec.  37.71 of this rule.''
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    Many REAL ID compliant states offer both compliant and non-
compliant cards to their residents. Based on anecdotal information, DHS 
believes that a significant number of individuals are obtaining non-
compliant ``marked'' cards instead of REAL ID compliant cards. Although 
non-compliant ``marked'' cards may be valid for some uses, such as 
driving, they will not be accepted by Federal agencies for official 
purposes--including boarding federally-regulated commercial aircraft--
beginning October 1, 2020.
    DHS is providing this clarification to avoid any potential public 
confusion as the final REAL ID deadline for card-based enforcement 
approaches. The clarification in this final rule is consistent with 
DHS's previous public messaging of the regulation's enforcement dates. 
For example, through press statements, website postings, and 
stakeholder outreach, DHS explained that Federal agencies may continue 
to accept all non-compliant cards issued by compliant states and 
territories (or those with an extension) until October 1, 2020.\18\ The 
Transportation Security Administration (TSA) also engaged in outreach 
to stakeholders regarding compliance dates. This outreach included 
updates during regular briefings for airports, air carriers, and 
stakeholder groups such as Airports Council International-North 
America, and the American Association of Airport Executives. In 
addition, TSA posted REAL ID updates on the Homeland Security 
Information Network), which is accessible by all regulated domestic 
airports and air carriers. DHS is continuing efforts to raise awareness 
with stakeholders and the public concerning the October 1, 2020, 
deadline.
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    \18\ See, e.g., Statement by Secretary Johnson, supra n. 9. See 
also REAL ID Federal Enforcement, Frequently Asked Questions, 
available at https://www.dhs.gov/federal-enforcement and https://www.dhs.gov/real-id-public-faqs.
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    Some Federal agencies may decide not to accept non-compliant 
``marked'' cards for access to their Federal facilities sooner than the 
regulatory deadline pursuant to their own authorities and requirements. 
For example, the U.S. Department of Defense (DoD) recently finalized an 
update to its DoD-wide installation security policy that includes a 
prohibition on the acceptance of non-compliant ``marked'' cards for 
purposes of accessing its facilities and installations. Because Federal 
agencies may only accept compliant State or territory-issued driver's 
licenses and identification cards for official purposes beginning 
October 1, 2020, no agency will be able to accept non-compliant cards, 
including non-compliant ``marked'' cards for such purposes beginning on 
that date.\19\
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    \19\ In addition to licenses and identification cards that are 
marked non-compliant in accordance with 6 CFR 37.71, licenses and 
identification cards issued before a state's REAL ID compliance 
determination and that were not issued in accordance with the REAL 
ID standards (sometimes referred to as ``legacy'' cards) are also 
noncompliant and will not be accepted for official purposes 
beginning on October 1, 2020.
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    Many individuals rely on their State or territory-issued driver's 
license or identification card as identification to pass through TSA 
airport security checkpoints. Beginning October 1, 2020, travelers 
presenting a non-compliant State or territory-issued driver's license 
or identification card to TSA will be asked to provide an acceptable 
form of identification.\20\ If the traveler cannot produce an 
acceptable form of identification or TSA cannot otherwise verify the 
individual's identity, the individual will not be permitted through the 
security checkpoint.
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    \20\ TSA provides a list of identification currently acceptable 
at the checkpoint on its website. See https://www.tsa.gov/travel/security-screening/identification.
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    DHS encourages individuals to obtain REAL ID compliant cards as 
soon as possible, particularly if they wish to use a State or territory 
issued driver's license or identification card to board a federally-
regulated commercial aircraft, or for any other official Federal 
purpose. DHS posted images of both compliant and non-compliant 
``marked'' cards on its website, at https://www.dhs.gov/real-id#, to 
assist individuals in determining whether their driver's license or 
identification card is REAL ID compliant. A REAL ID compliant card 
includes a compliance marking (which is a star on the upper portion of 
the card). Non-compliant ``marked'' cards include one of several 
warnings indicating that they are not acceptable for official purposes. 
Individuals should check with their Department of Motor Vehicles to 
learn how to obtain a REAL ID compliant license for the applicable 
State or territory.

III. Regulatory Analysis

A. Administrative Procedure Act

    DHS takes this action without prior notice and public comment and 
with an effective date of less than 30 days after publication in the 
Federal Register.
    Sections 553(b) and (d) of the Administrative Procedure Act (5 
U.S.C. 553) authorize agencies to dispense with certain notice 
procedures for rules when they find ``good cause'' to do so. Under 
section 553(b), the requirements of notice and opportunity for comment 
do not apply when the agency for good cause finds that these procedures 
are ``impracticable, unnecessary, or contrary to the public interest.'' 
Section 553(d) allows an agency, upon finding good cause, to make a 
rule effective immediately, thereby avoiding the 30-day delayed 
effective date requirement in section 553.
    This final rule is consistent with DHS's previous messaging 
regarding the regulation's enforcement dates in public statements, 
information posted on the DHS website, and communication with industry 
stakeholders. In these communications, DHS explained that all non-
compliant cards issued by compliant states and territories (or those 
with an extension) will be accepted until October 1, 2020. This final 
rule does not change when individuals will need to obtain a compliant 
driver's license or identification card. All individuals still have 
until October 1, 2020, to obtain a compliant card for official 
purposes, as defined by the Act and regulation. Given that this final 
rule simply clarifies what is already widely communicated, and does not 
change the date by which individuals may no longer use a non-compliant 
``marked'' card, DHS assesses no additional burden to any party from 
this final rule.

[[Page 55019]]

    Based on the above, DHS finds that notice and public comment to 
this final rule are impracticable, unnecessary, and contrary to the 
public interest.

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires Federal agencies to consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulation. DHS determined that 
this rule calls for no new collection of information under the PRA. 
Information collection requirements associated with this final rule 
previously have been approved by OMB and have been assigned OMB Number: 
1601-0005.
    As protection provided by the Paperwork Reduction Act, as amended, 
an agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

C. Executive Orders 12866 and 13563 Assessment

    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the 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). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    In conducting these analyses, DHS determined that this rule does 
not constitute a ``significant regulatory action'' under Executive 
Order 12866, as supplemented by Executive Order 13563. Therefore, OMB 
has not reviewed this rule. DHS anticipates that the clarification of 
the existing enforcement date in this final rule will not increase REAL 
ID-related compliance costs to the affected agencies or to the public.

D. Regulatory Flexibility Act Assessment

    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, does not make changes for which notice 
and comment are necessary. Accordingly, DHS is not required to prepare 
a regulatory flexibility analysis. See 5 U.S.C. 603, 604.

E. Executive Order 13132 (Federalism)

    A rule has implications for federalism under Executive Order 13132 
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. DHS analyzed this rule under this Order and 
determined it does not have these implications for federalism.

F. Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
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 sector 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 analyzed this rule under Executive Order 13211 and 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, 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:

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.

Subpart A--General

0
2. Revise Sec.  37.5(c) to read as follows:


Sec.  37.5  Validity periods and deadlines for REAL ID driver's 
licenses and identification cards.

* * * * *
    (c) Until September 30, 2020, Federal agencies may accept for 
official purposes a driver's license or identification card issued 
under Sec.  37.71. On or after October 1, 2020, Federal agencies shall 
not accept for official purposes a driver's license or identification 
card issued under Sec.  37.71.

Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-22325 Filed 10-11-19; 8:45 am]
 BILLING CODE 9110-9M-P