[Federal Register Volume 85, Number 81 (Monday, April 27, 2020)]
[Rules and Regulations]
[Pages 23205-23208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08481]



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 Rules and Regulations
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  Federal Register / Vol. 85, No. 81 / Monday, April 27, 2020 / Rules 
and Regulations  

[[Page 23205]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 37

RIN 1601-AA97


Minimum Standards for Driver's Licenses and Identification Cards 
Acceptable by Federal Agencies for Official Purposes

AGENCY: Office of the Secretary, DHS.

ACTION: Final rule.

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SUMMARY: This rule delays the date for card-based enforcement of the 
REAL ID regulations from October 1, 2020 until October 1, 2021. 
Beginning on that date, federal agencies may not accept a state-issued 
driver's license or identification card for official purposes from any 
individual unless such license or card is a REAL ID compliant driver's 
license or identification card issued by a state that DHS has 
determined is in full compliance as defined under this part. The 
regulations also permit federal agencies to accept for official 
purposes until September 30, 2020, certain non-compliant driver's 
licenses and identification cards. This rule extends that date, 
authorizing federal agencies to continue to accept non-compliant 
driver's licenses and identification cards until the new card-based 
enforcement deadline.

DATES: Effective on April 27, 2020.

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

SUPPLEMENTARY INFORMATION: 

I. Background

A. The REAL ID Act, Implementing Regulations, and Phased Enforcement

    The REAL ID Act (the Act) sets minimum security requirements for 
the issuance and production of driver's licenses and identification 
cards issued by the states, territories, and the District of Columbia 
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, 
Div. B. title II, sections 201 to 207, May 11, 2005, as amended 
(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 deadline for 
state compliance with the REAL ID requirements and a deadline by which 
individuals must obtain a REAL ID compliant license or identification 
card in order to use that document for official purposes.\4\ DHS refers 
to these deadlines as ``state-based'' and ``card-based'' enforcement, 
respectively.
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    \3\ See 73 FR 5272 (Jan. 29, 2008) (codified as amended at 6 CFR 
part 37).
    \4\ 6 CFR 37.51(a) and 37.5.
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    For state-based enforcement, the Act and regulation prohibits 
federal agencies from accepting licenses and cards issued by states 
that are not compliant with the REAL ID standards as determined by DHS. 
On March 7, 2011, DHS changed the state-based enforcement deadline from 
May 11, 2011 to January 15, 2013.\5\
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    \5\ 76 FR 12269 (Mar. 7, 2011) (codified as amended at 6 CFR 
37.51(a)).
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    DHS then incrementally enforced this deadline through a phased-
enforcement schedule, pursuant to which enforcement began at DHS 
headquarters, followed by enforcement at federal facilities and nuclear 
power plants.\6\ On January 8, 2016, DHS announced that the final phase 
of the enforcement schedule, applicable to individuals boarding 
federally-regulated commercial aircraft, would begin on January 22, 
2018.\7\ Thus, since January 22, 2018, the Transportation Security 
Administration (TSA) has accepted driver's licenses and identification 
cards only if issued by compliant states (or states with an extension 
from DHS) at screening checkpoints. In practice, TSA currently accepts 
driver's licenses and identification cards from all states and 
territories, as all are compliant or have an extension from DHS.
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    \6\ Cf. 6 CFR 37.51(a); DHS Releases Phased Enforcement Schedule 
for REAL ID (Dec. 20, 2013), available at https://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id.
    \7\ See Statement By Secretary Jeh C. Johnson on the Final Phase 
of REAL ID Act Implementation (Jan. 8, 2016), 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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    Under existing regulations, card-based enforcement is scheduled to 
begin on October 1, 2020.\8\ Beginning on the card-based enforcement 
date, federal agencies are prohibited from accepting for official 
purposes a license or identification card issued by a state unless the 
license or card itself was issued in accordance with the REAL ID 
standards by a REAL ID compliant jurisdiction.
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    \8\ 6 CFR 37.5(b).
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    In addition to compliant licenses and identification cards, states 
may issue, to individuals who are unable or unwilling to present the 
documents and information necessary to obtain a REAL ID compliant 
license, licenses and cards that are not acceptable by federal agencies 
for official purposes. These non-compliant licenses and cards must (1) 
clearly state that the card is not acceptable for official purposes, 
and (2) have a unique design or color indicator that clearly 
distinguishes them from compliant licenses and identification cards.\9\ 
The REAL ID regulations authorize, but do not require, federal agencies 
to accept these non-compliant cards up until the October 1, 2020, card-
based enforcement deadline.\10\
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    \9\ 6 CFR 37.71; REAL ID Act Sec.  202(d)(11).
    \10\ See 84 FR 55017 (Oct. 15, 2019) (clarifying 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).
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B. Progress Towards Full Implementation

    Since its enactment in 2005, DHS has worked with the states to 
implement the requirements of the REAL ID Act. DHS has provided 
funding, technical assistance, outreach, and engagement. DHS has 
awarded over $263 million in grant funding to assist in enhancements to 
driver's license security programs.\11\ DHS and the states have 
collectively built the technical infrastructure to

[[Page 23206]]

support systems to verify identity and lawful status information, which 
is a key security component of the Act and regulation. DHS, the states, 
and other stakeholders have conducted broad outreach and engagement to 
inform the public of REAL ID requirements and upcoming enforcement 
deadlines. These efforts have yielded significant progress towards full 
REAL ID implementation. Fifty-two of the 56 jurisdictions subject to 
REAL ID have achieved compliance with the REAL ID standards and are 
currently issuing REAL ID-compliant licenses and identification 
cards.\12\ Together, compliant states, territories and the District of 
Columbia have issued more than 100 million compliant licenses and 
cards, which represent approximately 36 percent of the population 
eligible for these documents.\13\ Data from the states also indicates 
that states have issued approximately 72 million non-compliant marked 
licenses and identification cards. Together, this data suggests 
approximately two-thirds of the population does not currently possess a 
REAL ID-compliant license or identification card that such individuals 
may need for official purposes, including to use as identification at 
TSA airport security checkpoints to board federally regulated 
commercial aircraft.\14\
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    \11\ Secure Identification State Progress Report--Fiscal Year 
2012 Report to Congress.
    \12\ New Jersey and the Commonwealth of the Northern Mariana 
Islands are pending DHS compliance determinations. American Samoa, 
Oklahoma, and Oregon have not submitted requests for compliance 
determination.
    \13\ Based on February 2020 REAL ID issuance data voluntarily 
submitted monthly to DHS by the compliant states.
    \14\ Although a significant segment of the population may not 
currently possess a REAL ID, they may have other forms of 
identification acceptable for official purposes (e.g., a U.S. 
passport, U.S. passport card, or military identification).
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    DHS has increased its level of outreach and engagement to the 
public and other REAL ID stakeholders, including airlines, airports, 
and others in the travel industry. Through these engagements, DHS has 
received useful feedback regarding the challenges of fully implementing 
REAL ID ahead of the October 1, 2020, card-based enforcement deadline.
    DHS has been working with the states and other stakeholders to 
identify ways to modernize the REAL ID application process. To further 
enlist stakeholder input on ways to streamline the driver's license 
application process without compromising the security aspects of the 
REAL ID process, DHS issued a request for information (RFI) on November 
7, 2019.\15\ The RFI requested input from the public, states, private 
sector entities and other interested stakeholders on ways to improve, 
streamline, and reduce burdens associated with the current application 
process through the use of new capabilities and technologies in 
addition to other modification to existing application requirements. 
The RFI, for which the comment period closed on December 9, 2019, 
yielded more than 100 proposals from the states, the public, the 
private sector, and stakeholder associations among others. DHS quickly 
assessed these proposals and immediately determined that a proposal 
involving electronic submission of identity source documents prior to 
an in-person Department of Motor Vehicles (DMV) visit could be achieved 
consistent with existing authorities. DHS issued guidance to states 
recommending they consider using this process to streamline the 
application process and reduce customer wait times.\16\ DHS continues 
to review the proposals and is looking for additional ways to 
streamline the application and issuance process consistent with the 
security aspects of the REAL ID Act.
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    \15\ 84 FR 60104 (Nov. 7, 2019).
    \16\ See DHS, REAL ID Act of 2005 Implementation: Acceptance of 
Electronically Submitted Copies of Source Documents with Certain 
Restrictions in Advance of an In-Person DMV Visit (Feb. 19, 2020), 
available at https://www.dhs.gov/publication/acceptance-electronically-submitted-copies-source-documents?collection=headquarters-guidance-documents.
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C. Coronavirus Disease 2019 (COVID-19)

    Coronavirus Disease 2019 (COVID-19), a communicable disease caused 
by a new (novel) coronavirus named SARS-CoV-2, is a respiratory disease 
that can cause fever, cough, and difficulty breathing, with reported 
illnesses ranging from mildly symptomatic to severe illness and death. 
Although the virus that causes COVID-19 was originally detected in The 
People's Republic of China, as of mid-March 2020, it had resulted in a 
pandemic with cases in over 150 countries, including in the United 
States and Canada. On January 30, 2020, the Director-General of the 
World Health Organization declared the outbreak a ``public health 
emergency of international concern'' under the International Health 
Regulations (2005).\17\ On January 31, 2020, the Secretary of the 
Department of Health and Human Services declared a nationwide ``public 
health emergency'' under section 319 of the Public Health Service Act, 
42 U.S.C. 274d, as a result of confirmed cases of COVID-19.\18\ On 
March 11, 2020, the World Health Organization announced that the COVID-
19 outbreak can be characterized as a pandemic. On March 13, 2020, the 
President determined that the ongoing COVID-19 pandemic is of 
sufficient severity and magnitude to warrant an emergency determination 
under section 501(b) of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, 42 U.S.C. 5121-5207. In addition, on March 
13, 2020, the President declared a national emergency under sections 
201 and 301 of the National Emergencies Act, 50 U.S.C. 1601 et seq.\19\ 
State and local jurisdictions throughout the United States are engaged 
in various social distancing practices, which frequently entail closing 
non-essential business and government services and avoiding crowds. On 
March 17, 2020 the National Governors Association (NGA) sent DHS a 
letter requesting an extension of the REAL ID enforcement deadline by 
at least a year due in part to many states closing DMVs and other state 
facilities as a result of the COVID-19 public health crisis.\20\
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    \17\ Statement on the second meeting of the International Health 
Regulations (2005) Emergency Committee regarding the outbreak of 
novel coronavirus (2019-nCoV) (Jan. 30, 2020), available at https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-
committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov).
    \18\ HHS, ``Determination that a Public Health Emergency 
Exists,'' https://www.phe.gov//emergency//news//healthactions//phe//Pages//2019-nCoV.aspx.
    \19\ Proclamation 9994 of Mar. 13, 2020 on Declaring a National 
Emergency Concerning the Novel Coronavirus Disease (COVID-19) 
Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \20\ National Governors Association letter to Acting Secretary 
Wolf (Mar. 17, 2020).
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II. Card-Based Enforcement Deadline

    Notwithstanding the significant progress made towards full REAL ID 
implementation, the Secretary recognizes significant challenges 
associated with full enforcement in the current environment. The 
outbreak and continued spread of COVID-19 has significantly disrupted 
the daily lives and activities of all Americans. It has shifted 
priorities and severely curtailed daily interactions. To limit exposure 
and reduce the chance of transmission, state and local government 
offices have restricted all but the most essential services. This 
includes activities at state DMVs where offices are either operating at 
limited capacity, providing remote services, or, in some cases, are 
temporarily closed to the public.\21\

[[Page 23207]]

Additionally, some states have authorized grace periods and extensions 
to those with expiring licenses as a further way to avoid in-person 
contact and mitigate risks to the health and safety of the public and 
state government employees.
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    \21\ Individuals should check with their state DMV for policies 
and guidance on license issuance and renewals and other services 
during the disruption caused by COVID-19.
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    DHS recognizes the impact these disruptions will have on the 
ability of an individual to obtain a REAL ID compliant license or 
identification card before October 1, 2020. Moreover, the Secretary 
recognizes the importance of social distancing, and is taking this 
action to assure the public that there is no need to visit a DMV to 
obtain a REAL ID document at this time.
    Accordingly, the Secretary is extending the date by which 
individuals must obtain a REAL ID license or identification card to use 
that document for official purposes until October 1, 2021.
    Additionally, to avoid any confusion about the ability of federal 
agencies to continue to accept certain non-compliant licenses and 
identification cards issued under Sec.  37.71, DHS also is extending 
the date by which federal agencies may continue to accept these 
licenses and identification cards for official purposes until September 
30, 2021. Although some agencies, including TSA, accept these licenses 
and identification cards for official purposes, others may decide not 
to accept, or currently do not accept, non-compliant marked cards for 
official purposes. Individuals who need to visit a federal facility, 
building, or office should check in advance whether the agency requires 
identification for access purposes and, if they do, the forms of 
identification they accept.

III. Regulatory Analysis

A. Administrative Procedure Act

    DHS takes this action without prior notice and public comment.
    Sections 553(b) and (d) of the Administrative Procedure Act (5 
U.S.C. 553) authorize agencies to dispense with certain rulemaking 
procedures when they find good cause to do so. Under section 553(b), 
the requirements of notice and opportunity to 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 recognizes the need to extend the card-based 
enforcement deadline in light of the significant disruption and 
uncertainty in government operations caused by the COVID-19 virus, as 
well as the need to encourage appropriate social distancing behavior. 
Delaying the change to the regulation's enforcement date by first 
undergoing notice and comment would be contrary to the public interest, 
as an expeditious regulatory announcement of the new deadline is 
necessary for state and individual planning purposes. These factors 
suggest that delays associated with notice and comment rulemaking would 
potentially undermine critical public health efforts at the federal, 
state, territorial, or local level. DHS therefore has good cause to 
bypass such procedures.

B. 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).

C. Executive Orders 12866 and 13563 Assessment

    This rule constitutes a ``significant regulatory action'' under 
Executive Order 12866, as supplemented by Executive Order 13563, and 
therefore has been reviewed by the Office of Management and Budget 
(OMB). 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. DHS is proceeding 
under the emergency provision at Executive Order 12866 Section 
6(a)(3)(D) based on the urgent needs described above.

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, 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.

E. Executive Order 13132 (Federalism)

    A rule has federalism implications under Executive Order 13132, 
``Federalism,'' if it has a substantial direct effect on state 
governments, on the relationship between the national government and 
the states, or on the distribution of power and responsibilities among 
the various levels of government. DHS has analyzed this rule under that 
Order and has determined that although this rule affects the states, it 
does not impose substantial direct compliance costs or preempt state 
law. In fact, the rule is responsive to concerns expressed by state 
agencies regarding the upcoming deadlines. DHS has determined that the 
rule is consistent with Executive Order 13132.

F. Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 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. Environment

    DHS reviews proposed actions to determine whether the National 
Environmental Policy Act (NEPA) applies to them and, if so, what degree 
of analysis is required. DHS Directive 023-01 Rev. 01 (Directive) and 
Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish 
the procedures that DHS and its

[[Page 23208]]

components use to comply with NEPA and the Council on Environmental 
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 
through 1508.
    The CEQ regulations allow federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4. 
For an action to be categorically excluded, it must satisfy each of the 
following three conditions: (1) The entire action clearly fits within 
one or more of the categorical exclusions; (2) the action is not a 
piece of a larger action; and (3) no extraordinary circumstances exist 
that create the potential for a significant environmental effect. 
Instruction Manual section V.B(2)(a)-(c).
    The delay effectuated by this rule fits within categorical 
exclusion A3(a) ``Promulgation of rules . . . of a strictly 
administrative or procedural nature.'' Instruction Manual, Appendix A, 
Table 1. Furthermore, the rule is not part of a larger action and 
presents no extraordinary circumstances creating the potential for 
significant environmental impacts. Therefore, the rule is categorically 
excluded from further NEPA review.

I. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel, for purposes of 
publication in the Federal Register.

List of Subjects in 6 CFR Part 37

    Document security, Driver's licenses, Identification cards, Motor 
vehicle administrations, Physical security.

    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. In Sec.  37.5, revise paragraphs (b) and (c) to read as follows:


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

* * * * *
    (b) On or after October 1, 2021, Federal agencies shall not accept 
a driver's license or identification card for official purposes from 
any individual unless such license or card is a REAL ID-compliant 
driver's license or identification card issued by a State that has been 
determined by DHS to be in full compliance as defined under this 
subpart.
    (c) Until September 30, 2021, Federal agencies may accept for 
official purposes a driver's license or identification card issued 
under Sec.  37.71. On or after October 1, 2021, Federal agencies shall 
not accept for official purposes a driver's license or identification 
card issued under Sec.  37.71.

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-08481 Filed 4-24-20; 8:45 am]
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