[Federal Register Volume 86, Number 83 (Monday, May 3, 2021)]
[Rules and Regulations]
[Pages 23237-23241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09219]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and
Regulations
[[Page 23237]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 37
[Docket No. DHS-2021-0019]
RIN 1601-AB03
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes
AGENCY: Office of the Secretary, DHS.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule delays the date for card-based enforcement of the
REAL ID regulations from October 1, 2021 until May 3, 2023. 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 non-compliant driver's licenses and identification cards until
September 30, 2021. This rule also extends that date, authorizing
federal agencies to continue to accept non-compliant driver's licenses
and identification cards until the end of May 2, 2023.
DATES: This rule is effective on May 3, 2021. Interested persons are
invited to submit comments before the end of July 2, 2021.
ADDRESSES: Interested persons may comment on any aspect of this
rulemaking rule by submitting written comments via the Federal e-
Rulemaking Portal at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Steve Yonkers, Director, REAL ID
Program Office; telephone (202) 447-3274; email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Public Participation
DHS invites interested persons to comment on any aspect of this
rulemaking rule by submitting written comments via the Federal e-
Rulemaking Portal at https://www.regulations.gov. Use the Search bar to
find the docket, using the docket number associated with this
rulemaking. Comments received, including any personal information you
have provided, may be posted without change. Whenever possible, please
provide citations and copies of any relevant studies or reports on
which your relies, as well as any additional data which support your
comment. It is also helpful to explain the basis and reasoning
underlying any views expressed.
II. 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, Sec. Sec. 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 prohibit
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
or under compliance review from DHS) at screening checkpoints.
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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, 2021.\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
[[Page 23238]]
authorize, but do not require, federal agencies to accept these non-
compliant cards until the end of May 2, 2023.\10\
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\9\ 6 CFR 37.71; REAL ID Act section 202(d)(11).
\10\ See 84 FR 55017 (Oct. 15, 2019) and 85 FR 23205 (Apr. 27,
2020) (codified at 6 CFR 37.5) (clarifying that the October 1, 2021
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\ Additionally, technical
infrastructure to support systems to verify applicant information is
being used by the states, 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. A central and
continuing goal has been to simplify the process and to make the
various requirements easier to navigate, with the aim of reducing all
relevant burdens and of promoting equity.\12\
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\11\ Secure Identification State Progress Report-Fiscal Year
2012 Report to Congress.
\12\ See E.O. 13707, Using Behavioral Science Insights to Better
Serve the American People, 80 FR 56365 (published Sept. 18, 2015).
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These efforts have yielded significant progress towards full REAL
ID implementation. Fifty-five 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.
Based on REAL ID data compiled by compliant states, DHS estimates that
compliant states, territories and the District of Columbia have issued
approximately 119 million compliant licenses and cards, which represent
approximately 43 percent of the population eligible for these
documents.\13\ Data from the states also indicates that states have
issued approximately 90 million non-compliant marked licenses and
identification cards and approximately 64 million individuals still
have legacy licenses without any markings that were issued before a
state's compliance determination. At the current 0.5 percent REAL ID
issuance rate, DHS estimates that approximately 46 percent of the
population eligible for a REAL ID license will have one by the current
October 1, 2021 full enforcement date. The remainder of the population
would need another acceptable form of identification, where
identification is required for REAL ID official purposes, including for
use as identification at TSA airport security checkpoints.\14\
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\13\ Based on 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, 2021, card-based enforcement deadline.
DHS also has been working with the states and other stakeholders to
identify ways to modernize the REAL ID application process and to
reduce complexity and burdens. For example, DHS issued a request for
information (RFI) on November 7, 2019, seeking 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 modifications to existing application
requirements.\15\ The RFI yielded more than 100 proposals that included
suggestions for streamlining the application and issuance process by
authorizing the submission of REAL ID applications and identity
information through secure electronic or digital transmission methods.
Following consideration of these proposals, DHS worked with Congress to
enact the REAL ID Modernization Act, which includes a provision that
would authorize states to accept REAL ID applicant information through
electronic transmission methods following the issuance of regulations
by DHS.\16\
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\15\ 84 FR 60104 (Nov. 7, 2019). This RFI is unrelated to a
subsequent RFI issued on April 19, 2021, which seeks information to
inform a rulemaking to amend the REAL ID implementing regulation, 6
CFR part 37, to address security standards and requirements for the
issuance of mobile or digital driver's licenses and identification
cards to enable Federal agencies to accept these credentials for
official purposes as defined in the REAL ID Act and regulation. 86
FR 20320 (Apr. 19, 2021).
\16\ The REAL ID Modernization Act, Title X, Div. U of the
Consolidated Appropriations Act, 2021, Public Law 116-260 (Dec. 27,
2020).
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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.
DHS continues to monitor and respond to the COVID-19 pandemic. As of
April 19, 2021, there have been over 140 million confirmed cases
globally, with over 3 million confirmed deaths.\17\ In the United
States, there have been over 31 million reported cases with over
563,000 reported deaths.\18\
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\17\ WHO, Coronavirus disease 2019 (COVID-19) Weekly
Epidemiological Update (March 3, 2021), available at https://covid19.who.int.
\18\ CDC, COVID Data Tracker (accessed March 3, 2021), available
at https://covid.cdc.gov/covid-data-tracker/.
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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.\19\ 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.\20\ More
recently, on January 27, 2021, the Acting Secretary of Homeland
Security issued a Secretarial Determination of National Emergency.
Moreover, state and local jurisdictions throughout the United States
continue to engage in various social distancing practices and other
efforts to reduce and mitigate against further spread of COVID-19,
including closing or reducing service times at government offices and
by accepting in-person visits by appointment only.
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\19\ HHS, ``Determination that a Public Health Emergency
Exists,'' https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
\20\ 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).
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[[Page 23239]]
D. DHS Final Rule Extending the Card-Based Deadline
Considering the impact of the COVID-19 pandemic on state and local
government operations and the desire to reduce further spread by
encouraging continued social distancing, in April 2020 DHS issued a
final rule extending the REAL ID card-based enforcement date for one
year until October 1, 2021.\21\ DHS took this action to assist the
states in avoiding in-person driver's licensing agency visits and in
recognition of the fact that, as a result of the pandemic, most if not
all states severely curtailed driver's licensing agency operations and
service hours and authorized extensions for expiring driver's licenses.
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\21\ 85 FR 23205 (Apr. 27, 2020).
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III. Further Extending the Card-Based Enforcement Deadline
Notwithstanding the substantial progress made towards full REAL ID
implementation, the Secretary recognizes that significant challenges
persist with full REAL ID 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. In important
respects, it has had an especially severe impact on low-income
communities, those in ill health, and the elderly. To limit exposure
and reduce the chance of transmission, state and local government
offices continue to operate at limited capacity, provide remote
services, or, in some cases, remain temporarily closed to the
public.\22\ Additionally, some states continue to authorize 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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\22\ 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 continuing impact these disruptions are creating
on the ability of many individuals to obtain a REAL ID compliant
license or identification card before October 1, 2021. DHS also
recognizes that these disruptions have had a particularly severe effect
on some vulnerable subpopulations. Moreover, the Secretary recognizes
the importance of social distancing, and with the commitments to
fairness and equity in mind,\23\ is taking this action to assure the
public that there is no need to visit a state driver's licensing agency
to obtain a REAL ID document at this time.
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\23\ See E.O. 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, 86 FR 7009
(published Jan. 25, 2021); E.O. 13563, Improving Regulation and
Regulatory Review, 76 FR 3821 (published Jan. 21, 2011).
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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 May 3, 2023. This extension
is intended to provide sufficient time for DMVs across the country to
fully reopen in-person services. A safe and sustained reopening of in-
person services is necessary to meaningfully improve upon the current
0.5 percent REAL ID issuance rate. As noted above, at the current 0.5
percent REAL ID issuance rate, DHS estimates that approximately 46
percent of the population eligible for a REAL ID license will have one
by the current October 1, 2021 full enforcement date. DHS believes that
such an outcome would result in lengthy delays at airport security
checkpoints and significant inconvenience to the traveling public.
Moreover, DHS anticipates that the additional time provided by this
extension should be sufficient for states to implement and benefit from
recent and potential future changes to the REAL ID issuance process.
For instance, a provision of the REAL ID Modernization Act allows
states to immediately stop requiring applicants to provide separate
physical documentation of a Social Security account number. This
flexibility, which would reduce the burden on applicants and may in
some cases help applicants avoid return trips to the DMV, has yet to be
implemented in all states. In addition, also consistent with the REAL
ID Modernization Act, DHS is considering issuing regulations
authorizing new procedures for the electronic presentation of
documents, which may allow for a more rapid and socially distanced
issuance process. DHS requires time to develop such regulations, and
states would require time for implementation.
Finally, 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 the end
of May 2, 2023. 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.
IV. Regulatory Analysis
A. Administrative Procedure Act
DHS takes this action without prior notice and public comment, but
welcomes comment on all aspects of the action.
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 interim final rule recognizes the need to extend the card-
based enforcement deadline in light of the significant disruption and
uncertainty in government operations now being caused by the COVID-19
virus, as well as the need to encourage appropriate social distancing
behavior. October 1, the previous deadline, is merely five months away,
and a notice-and-comment process would mean continuing uncertainty for
state and local governments, for airlines, for travelers, and for
numerous others. As also noted, many state and local government offices
are operating at limited capacity. Some of them are providing remote
services; some of them are closed to the public. In addition, many
states are continuing to curtail driver's licensing agency operations
and service hours and have authorized extensions for expiring driver's
licenses. These restrictions are making it unusually difficult for many
people (especially those in certain regions or in vulnerable groups,
including those who are in poor health) to do what is required to
obtain REAL-ID.
In these circumstances, delaying the change to the regulation's
enforcement date by first undergoing notice and comment would impede
planning, would lead to undue uncertainty, and could produce serious
unfairness. It would be contrary to the public interest,
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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, while also welcoming comments on all aspects of
this action.
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 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 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 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.
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. 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 May 3, 2023, 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) Through the end of May 2, 2023, Federal agencies may accept for
official
[[Page 23241]]
purposes a driver's license or identification card issued under Sec.
37.71. On or after May 3, 2023, Federal agencies shall not accept for
official purposes a driver's license or identification card issued
under Sec. 37.71.
Alejandro N. Mayorkas,
Secretary.
[FR Doc. 2021-09219 Filed 4-30-21; 8:45 am]
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