[Federal Register Volume 88, Number 167 (Wednesday, August 30, 2023)]
[Proposed Rules]
[Pages 60056-60104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18582]
[[Page 60055]]
Vol. 88
Wednesday,
No. 167
August 30, 2023
Part III
Department of Homeland Security
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6 CFR Part 37
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Waiver for Mobile
Driver's Licenses; Proposed Rule
Federal Register / Vol. 88 , No. 167 / Wednesday, August 30, 2023 /
Proposed Rules
[[Page 60056]]
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DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 37
[Docket No. TSA-2023-0002]
RIN 1652-AA76
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Waiver for Mobile
Driver's Licenses
AGENCY: Transportation Security Administration, Department of Homeland
Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Transportation Security Administration (TSA) is proposing
to amend the REAL ID regulations to waive, on a temporary and State-by-
State basis, the regulatory requirement that mobile or digital driver's
licenses or identification cards (collectively ``mobile driver's
licenses'' or ``mDLs'') must be compliant with REAL ID requirements to
be accepted by Federal agencies for official purposes, as defined by
the REAL ID Act, when full enforcement of the REAL ID Act and
regulations begins on May 7, 2025.
DATES: Interested persons are invited to submit comments on or before
October 16, 2023.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, to the Federal Docket Management System (FDMS), a
government-wide, electronic docket management system. To avoid
duplication, please use only one of the following methods:
Electronic Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility (M-30), U.S. Department
of Transportation, 1200 New Jersey Avenue SE, West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001. The Department of
Transportation (DOT), which maintains and processes TSA's official
regulatory dockets, will scan the submission and post it to FDMS.
Fax: (202) 493-2251.
See the SUPPLEMENTARY INFORMATION section for format and other
information about comment submissions.
FOR FURTHER INFORMATION CONTACT: George Petersen, Senior Program
Manager, REAL ID Program, Enrollment Services and Vetting Programs,
Transportation Security Administration; telephone: (571) 227-2215;
email: [email protected].
Please do not submit comments to these addresses.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for Comments
TSA invites interested persons to participate in this NPRM by
submitting written comments, including relevant data. Comments that
will provide the most assistance to TSA will reference a specific
portion of this proposed rule, explain the reason for any suggestion or
recommended change, and include data, information, or authority that
supports such suggestion or recommended change.
Submitting Comments
With each comment, please identify the docket number at the
beginning of your comments. You may submit comments and material
electronically, by mail, or fax as provided under ADDRESSES, but please
submit your comments and material by only one means. If you submit
comments by mail or in person, submit them in an unbound format, no
larger than 8.5 by 11 inches, suitable for copying and electronic
filing.
If you would like TSA to acknowledge receipt of comments submitted
by mail, include with your comments a self-addressed, stamped postcard
or envelope on which the docket number appears and we will mail it to
you.
All comments, except those that include confidential or SSI \1\
will be posted to https://www.regulations.gov, and will include any
personal information you have provided. Should you wish your personally
identifiable information redacted prior to filing in the docket, please
clearly indicate this request in your submission. TSA will consider all
comments that are in the docket on or before the closing date for
comments and will consider comments filed late to the extent
practicable. The docket is available for public inspection before and
after the comment closing date.
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\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and SSI Submitted
in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in the FOR FURTHER INFORMATION CONTACT
section. TSA will take the following actions for all submissions
containing SSI:
TSA will not place comments containing SSI in the public
docket and will handle them with applicable safeguards and restrictions
on access.
TSA will hold documents containing SSI, confidential
business information, or trade secrets in a separate file to which the
public does not have access, and place a note in the public docket
explaining that commenters have submitted such documents.
TSA may include a redacted version of the comment in the
public docket.
TSA will treat requests to examine or copy information
that is not in the public docket as any other request under the Freedom
of Information Act (5 U.S.C. 552) and the Department of Homeland
Security (DHS) Freedom of Information Act regulation found in 6 CFR
part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments in any of our dockets by the name of the individual,
association, business entity, labor union, etc., who submitted the
comment. For more about privacy and the docket, review the Privacy and
Security Notice for the FDMS at https://www.regulations.gov/privacy-notice, as well as the System of Records Notice DOT/ALL 14--Federal
Docket Management System (73 FR 3316, January 17, 2008) and the System
of Records Notice DHS/ALL 044--eRulemaking (85 FR 14226, March 11,
2020).
You may review TSA's electronic public docket at https://www.regulations.gov. In addition, DOT's Docket Management Facility
provides a physical facility, staff, equipment, and assistance to the
public. To obtain assistance or to review comments in TSA's public
docket, you may visit this facility between 9 a.m. and 5 p.m., Monday
through Friday, excluding legal holidays, or call (202) 366-9826. This
DOT facility is located in the West Building Ground Floor, Room W12-140
at 1200 New Jersey Avenue SE, Washington, DC 20590.
[[Page 60057]]
Availability of Rulemaking Document
You can find an electronic copy of this rulemaking using the
internet by accessing the Government Publishing Office's web page at
https://www.govinfo.gov/app/collection/FR/ to view the daily published
Federal Register edition or accessing the Office of the Federal
Register's web page at https://www.federalregister.gov. Copies are also
available by contacting the individual identified for ``General
Questions'' in the FOR FURTHER INFORMATION CONTACT section.
Abbreviations and Terms Used in This Document
AAMVA--American Association of Motor Vehicle Administrators
CA/Browser Forum--Certification Authority Browser Forum
CISA--Cybersecurity and Infrastructure Security Agency
DHS--U.S. Department of Homeland Security
DID--Decentralized Identifiers
FIPS--Federal Information Processing Standards
HSM--Hardware security module
IEC--International Electrotechnical Commission
ISO--International Organization for Standardization
mDL--mobile driver's licenses and mobile identification cards
NIST--National Institute for Standards and Technology
NPRM--Notice of proposed rulemaking
PUB--Publication
RFI--Request for Information
SP--Special Publication
TSA--Transportation Security Administration
VC--Verifiable Credentials
VCDM--Verifiable Credentials Data Model
W3C--World Wide Web Consortium
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Overview of the Proposed Rule
C. Need for a Multi-Phased Rulemaking
II. Background
A. REAL ID Act, Regulations, and Applicability to mDLs
B. Request for Information
C. mDL Overview
D. Current and Emerging Industry Standards and Government
Guidelines for mDLs
E. DHS Involvement in mDLs
III. Summary of the Proposed Rule
A. Overview
B. Specific Provisions
C. Impacted Stakeholders
D. Use Cases Affected by This Proposed Rule
IV. Discussion of Public Comments in the RFI
V. Consultation With States, Non-Governmental Organizations, and the
Department of Transportation
VI. Regulatory Analyses
A. Economic Impact Analyses
B. Paperwork Reduction Act
C. Federalism (E.O. 13132)
D. Customer Service (E.O. 14058)
E. Energy Impact Analysis (E.O. 13211)
F. Environmental Analysis
VII. Specific Questions
I. Executive Summary
A. Purpose of the Regulatory Action
This proposed rule is part of an incremental, multi-phased
rulemaking that will culminate in the promulgation of comprehensive
requirements for State issuance of REAL ID \2\-compliant mobile
driver's licenses and mobile identification cards (collectively
``mDLs''). In this first phase, TSA is proposing two changes to the
current regulations in 6 CFR part 37, ``REAL ID Driver's Licenses and
Identification Cards.'' First, TSA is proposing to add definitions for,
among others, mobile driver's licenses and mobile identification cards.
These definitions provide a precise explanation of those terms as
referenced in the REAL ID Act, which applies to only State-issued
driver's licenses and state-issued identification cards.\3\ Any other
types of identification cards, such as those issued by a Federal
agency, or commercial, educational, or non-profit entity, are beyond
the scope of the Act and regulations. The definition of ``mDL'' as used
in this rulemaking is limited to the REAL Act and regulations and
should not be confused with ``mDLs'' as defined by other entities, or
with State-issued mDLs that are not intended to comply with the REAL ID
Act.
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\2\ The REAL ID Act of 2005, Division B of the FY05 Emergency
Supplemental Appropriations Act, as amended, Public Law 109-13, 119
Stat. 302. Effective May 22, 2023, authority to administer the REAL
ID program was delegated from the Secretary of Homeland Security to
the Adminstrator of TSA pursuant to DHS Delegation No. 7060.2.1.
\3\ See id. section 201 (defining a ``driver's license'' to
include ``driver's licenses stored or accessed via electronic means,
such as mobile or digital driver's licenses, which have been issued
in accordance with regulations prescribed by the Secretary'';
mirroring definition for ``identification card'').
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Second, TSA is proposing to establish a temporary waiver process
that would permit Federal agencies to accept mDLs for official
purposes,\4\ as defined in the REAL ID Act and regulations, on an
interim basis when enforcement begins on May 7, 2025,\5\ but only if
all of the following conditions are met: (1) the mDL holder has been
issued a valid and unexpired REAL ID-compliant physical driver's
license or identification card from the same State that issued the mDL;
(2) TSA has determined the issuing State to be REAL ID-compliant; and
(3) TSA has issued a waiver to the State. To qualify for the waiver,
this proposed rule would require States to submit an application
demonstrating that they meet specified requirements, drawn from 19
industry and government standards guidelines. The rulemaking proposes
to incorporate by reference (IBR) those standards and guidelines, which
cover technical areas such as mDL communication, digital identity,
encryption, cybersecurity, and network/information system security and
privacy.
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\4\ The REAL ID Act defines official purposes as including but
not limited to accessing Federal facilities, boarding federally
regulated commercial aircraft, entering nuclear power plants, and
any other purposes that the Secretary shall determine. See id.
Notably, because the Secretary has not determined any other official
purposes, the REAL ID Act and regulations do not apply to Federal
acceptance of driver's licenses and identification cards for other
purposes, such as applying for Federal benefits programs, submitting
immigration documents, or other Federal programs.
\5\ 88 FR 14473 (Mar. 9, 2023); DHS Press Release, DHS Announces
Extension of REAL ID Full Enforcement Deadline (Dec. 5, 2022),
https://www.dhs.gov/news/2022/12/05/dhs-announces-extension-real-id-full-enforcement-deadline.
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As noted above, this proposed rule is part of an incremental
rulemaking that would temporarily permit Federal agencies to accept
mDLs for official purposes until TSA issues a subsequent rule that
would set comprehensive requirements for mDLs. TSA believes it is
premature to issue such requirements before the May 7, 2025, deadline
due to the need for emerging industry standards and government
guidelines to be finalized (discussed in more detail in Part II.D.,
below).
The need for this rulemaking arises from TSA's desire to
accommodate and foster the rapid pace of mDL innovation, while ensuring
the intent of the REAL ID Act and regulations are met. Secure driver's
licenses and identification cards are a vital component of our national
security framework. The REAL ID Act of 2005 addressed the 9/11
Commission's recommendation that the Federal Government ``set standards
for the issuance of sources of identification, such as driver's
licenses.'' Under the REAL ID Act and regulations, a Federal agency may
not accept for any official purpose a State-issued driver's license or
identification card, either physical or an mDL, that does not meet
specified requirements, as detailed in the REAL ID regulations (see
part II.A., below, for more discussion on these requirements).
Although the current regulatory provisions do not include
requirements that would enable States to issue REAL ID-compliant mDLs,
several States are already investing significant resources to develop
mDLs based on varying and often proprietary standards, many of which
may lack the security, privacy,
[[Page 60058]]
and interoperability features necessary for Federal acceptance for
official purposes. The rulemaking would encourage the development of
mDLs with a higher level of security, privacy, and interoperability.
Absent the proposed rule, individual States may choose insufficient
mDL security and privacy safeguards that fail to meet the security
purposes of REAL ID requirements and the privacy needs of users. The
proposed rule would address these considerations by enabling TSA to
grant a waiver to States whose mDLs TSA determines provide sufficient
safeguards for security and privacy, pending completion of emerging
standards. Without timely guidance from the Federal government
regarding potential requirements for developing a REAL ID-compliant
mDL, States risk investing in mDLs that are not aligned with emerging
industry standards and government guidelines that may be IBR'd in a
future rulemaking. States, therefore, may become locked-in to existing
solutions and could face a substantial burden to redevelop products
acceptable to Federal agencies under this future rulemaking.
Many stakeholders have already expressed these concerns to TSA. In
response to an April 2021 Department of Homeland Security (DHS) Request
for Information (RFI),\6\ issued to inform a future rulemaking that
would set technical requirements and security standards for mDLs, one
commenter cautioned that the absence of a common standard ``could lead
to fragmentation of the market, a decrease in trust, non-interoperable
solutions, and a global diminishing benefit of the mDL concept.'' \7\
Similarly, another commenter warned that ``[w]ithout clear, uniform,
flexible standards that will encourage widespread public and private
sector use of mDLs, mDLs will likely create confusion and struggle to
gain a foothold in being accepted.'' \8\
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\6\ See 86 FR 20320 (April 19, 2021).
\7\ Comment by American Association of Motor Vehicle
Administrators.
\8\ Comment by DocuSign.
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Although this proposed rule would not set standards for the
issuance of REAL ID-compliant mDLs, it does establish minimum
requirements that States must meet to be granted a waiver. These
proposed minimum standards and requirements would ensure that States'
investments in mDLs provide minimum privacy and security safeguards
consistent with information currently known to the TSA.
B. Overview of the Proposed Rule
As further discussed in part II.A., below, mDLs cannot be accepted
by Federal agencies for official purposes when REAL ID full enforcement
begins on May 7, 2025, unless 6 CFR part 37 is amended to address mDLs.
This proposed rule would establish a process for waiving, on a
temporary and State-by-State basis, the current prohibition on Federal
acceptance of mDLs for official purposes, and enable Federal agencies
to accept mDLs on an interim basis while the industry matures to a
point sufficient to enable TSA to develop more comprehensive mDL
regulatory requirements.
The current regulations prohibit Federal agencies from accepting
non-compliant driver's licenses and identification cards, including
both physical cards and mDLs, when REAL ID enforcement begins on May 7,
2025. Any modification of this regulatory provision must occur through
rulemaking (or legislation). Until and unless TSA promulgates
comprehensive mDL regulations that enable States to develop and issue
REAL ID-compliant mDLs, mDLs cannot be developed to comply with REAL
ID, and Federal agencies therefore cannot accept mDLs for official
purposes after REAL ID enforcement begins on May 7, 2025. The proposed
rule would allow the Federal government to accept mDLs on an interim
basis, but only if all of the following conditions are met: (1) the mDL
holder has been issued a valid and unexpired REAL ID-compliant physical
driver's license or identification card, (2) TSA has determined the
issuing State to be REAL ID-compliant, and (3) TSA has issued a waiver
to such State based on that State's compliance with minimum privacy,
safety, and interoperability requirements proposed in this rulemaking.
Please see Part II.A., below, for an explanation of the REAL ID
requirement that both cards and issuing States must be REAL ID
compliant.
C. Need for a Multi-Phased Rulemaking
TSA recognizes both that regulations can influence long-term
industry research and investment decisions and that premature
regulations can distort the choices of technologies adopted, which can
be costly to undo. As noted above, there are clear reasons for TSA to
issue requirements for mDLs. First, there is a growing demand for and
interest in mDLs due to their potential benefits of increased
convenience, security, and privacy. Second, to meet this demand, States
are beginning to invest in the infrastructure and programs to issue
mDLs. Third, in the absence of Federal regulations and guidelines as
outlined in this rulemaking, States may make unsuitable investments and
issue mDLs that Federal agencies cannot accept. Fourth, adoption and
use of mDLs could be thwarted if current regulations are not amended to
accommodate mDLs when REAL ID enforcement begins on May 7, 2025.
At the same time, however, TSA believes it is premature to issue
final, comprehensive requirements for mDLs given the rapid pace of
innovation in this nascent market, and the multiple emerging industry
and government standards and guidelines necessary to ensure mDL privacy
and security that are still in development. From comments submitted in
response to the RFI, TSA recognizes that technology and stakeholder
positions in this industry are diverse and evolving. TSA also conducted
a comprehensive analysis of industry and Government standards and
guidance, and the types of technology currently available. Based on
this analysis, a few international industry standards applicable to
mDLs are available,\9\ while most are years away from publication.
Accordingly, TSA has concluded that it is premature to promulgate
comprehensive requirements for mDLs while those standards are emerging,
because of the risk of unintended consequences, such as chilling
innovation and competition in the marketplace, and ``locking-in''
stakeholders to certain technologies.
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\9\ See Part II.D.
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Although TSA believes it is premature to establish comprehensive
requirements at this time, TSA believes it is appropriate to use its
regulatory authority to establish a waiver process with clear standards
and requirements to facilitate the acceptance of mDLs while the
industry matures and moves to accepted standards. Therefore, TSA has
decided to proceed with a multi-phased rulemaking approach. Initial
efforts focused on research and gathering information from interested
stakeholders, commencing with publication of the pre-rulemaking RFI
that was intended to inform any subsequent rulemaking. ``Phase 1,'' the
current phase, would establish a temporary waiver process. This waiver
process would enable secure use of mDLs when REAL ID enforcement begins
on May 7, 2025, while providing TSA additional operational experience
and data from TSA, which will accept mDLs during the waiver period
before eventually issuing comprehensive regulations. The proposed rule
is
[[Page 60059]]
intended to serve as a regulatory bridge for this emerging technology.
Following publication of industry standards currently under
development, TSA anticipates conducting a ``Phase 2'' rulemaking that
would repeal the temporary waiver provisions, including appendix A to
subpart A of the part (discussed in Part III.B.4.iv., below)
established in Phase 1 and establish more comprehensive requirements
enabling States to issue mDLs that comply with REAL ID requirements. At
this time, TSA anticipates the Phase 2 rulemaking would IBR pertinent
parts of some emerging standards (pending review of those final,
published documents) regarding specific requirements for security,
privacy, and interoperability, and distinguish between existing
regulatory requirements that apply only to mDLs versus physical cards.
Comments received in Phase 1, experience and data gained from temporary
Federal mDL acceptance under a waiver, TSA testing of mDL acceptance at
TSA airport security checkpoints, and publication of emerging
standards, will inform the Phase 2 rulemaking. As one commenter \10\
urged, DHS is taking ``a slow and careful approach'' to regulation in
order to fully understand the implications of mDLs.
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\10\ See comment from Electronic Privacy Information Center.
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This iterative rulemaking approach supports Executive Order (E.O.)
14058 of December 13, 2021 (Transforming Federal Customer Experience
and Service Delivery to Rebuild Trust in Government), by using
``technology to modernize Government and implement services that are
simple to use, accessible, equitable, protective, transparent, and
responsive for all people of the United States.'' \11\ As highlighted
above and discussed in more detail below, allowing acceptance of mDLs
issued by States that meet the waiver requirements would enable the
public to more immediately realize potential benefits of mDLs,
including greater convenience, security, and privacy. See Part II.C.4,
below, for more discussion on these benefits.
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\11\ Published at 86 FR 71357 (Dec. 16, 2021).
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II. Background
A. REAL ID Act, Regulations, and Applicability to mDLs
The REAL ID Act of 2005 sets minimum requirements for State-issued
driver's licenses and identification cards accepted by Federal agencies
for official purposes, including accessing Federal facilities, boarding
federally regulated commercial aircraft, entering nuclear power plants,
and any other purposes that the Secretary shall determine.\12\ The Act
defines ``driver's licenses'' and ``identification cards'' strictly as
State-issued documents,\13\ and the implementing regulations, 6 CFR
part 37, further refine the definition of ``identification card'' as
``a document made or issued by or under the authority of a State
Department of Motor Vehicles or State office with equivalent
function.'' \14\ Therefore, the REAL ID Act and regulations do not
apply to identification cards that are not made or issued under a State
authority, such as cards issued by a Federal agency or any commercial,
educational, or non-profit entity.
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\12\ The REAL ID Act of 2005--Division B of the FY05 Emergency
Supplemental Appropriations Act, as amended, Public Law 109-13, 119
Stat. 302.
\13\ Id. at sec. 201.
\14\ 6 CFR 37.3.
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On January 29, 2008, DHS published a final rule implementing the
Act's requirements.\15\ That rule included both a State compliance
deadline \16\ and a schedule describing when individuals must obtain a
compliant driver's license or identification card intended for use for
official purposes.\17\ DHS refers to these two deadlines as ``State-
based'' and ``card-based'' enforcement, respectively (or ``full
enforcement'' collectively). For State-based enforcement, 6 CFR
37.65(a) prohibits Federal agencies from accepting cards issued by
States and territories that are not compliant with the REAL ID
standards.\18\ DHS incrementally enforced the State-based deadline in
phases, with the last phase beginning January 22, 2018. Since this
date, many Federal agencies have accepted all valid driver's licenses
and identification cards issued by REAL ID-compliant States or States
with an extension or under compliance review from DHS.
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\15\ 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 six other final rules and
interim final rules amending the regulations, 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); 84
FR 55017 (Oct. 15, 2019); 86 FR 23237 (May 3, 2021). In addition to
final rules, DHS also published two Information Collection Requests
in the Federal Register in 2016 and 2022. See 81 FR 8736 (Feb. 22,
2016) and 87 FR 23878 (Apr. 21, 2022).
\16\ See 6 CFR 37.51(a).
\17\ See 6 CFR 37.5(b).
\18\ See 6 CFR 37.65(a).
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Card-based enforcement begins on May 7, 2025.\19\ On this date,
Federal agencies will be prohibited from accepting for official
purposes a State- or territory-issued driver's license or
identification card for official purposes unless the card is compliant
with the REAL ID Act and regulations.\20\
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\19\ See 6 CFR 37.5(b).
\20\ See id.
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On December 21, 2020, Congress passed the REAL ID Modernization Act
\21\ to amend the REAL ID Act to reflect new technologies that did not
exist when the law was enacted more than 15 years ago. Among other
updates,\22\ the REAL ID Modernization Act clarified that mDLs are
subject to REAL ID requirements by amending the definitions of
``driver's license'' and ``identification card'' to specifically
include mDLs that have been issued in accordance with regulations
prescribed by the Secretary.\23\ The REAL ID regulations therefore must
be updated to distinguish which existing requirements in 6 CFR 37 apply
to mDLs versus physical cards, and to include additional requirements
to ensure that mDLs meet equivalent levels of security currently
imposed on REAL ID-compliant physical cards and are otherwise secure.
An mDL cannot be REAL ID-compliant until TSA establishes REAL ID
requirements in regulations and States issue mDLs compliant with those
requirements. As a result of this requirement, mDLs must also be REAL
ID-compliant to be accepted when card-based enforcement begins on May
7, 2025.
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\21\ REAL ID Modernization Act, Title X of Division U of the
Consolidated Appropriations Act, 2021, Public Law 116-260, 134 Stat.
2304.
\22\ TSA is conducting a separate rulemaking to implement other
sections of the REAL ID Modernization Act.
\23\ Sec. 1001 of the REAL ID Modernization Act, Title X of
Division U of the Consolidated Appropriations Act, 2021, Public Law
116-260, 134 Stat. 2304.
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B. Request for Information
In April 2021, DHS issued an RFI announcing DHS's intent to
commence future rulemaking to set the minimum technical requirements
and security standards for mDLs to enable Federal agencies to accept
mDLs for official purposes. The RFI requested comments and information
to inform DHS's rulemaking.\24\ In June 2021, DHS held a public meeting
to provide an additional forum for comment.\25\ In response to comments
at the public meeting concerning the importance of public access to an
industry-developed standard referenced in the RFI, DHS subsequently
published a notification in the Federal Register to facilitate access
to the standard.\26\ DHS also conducted
[[Page 60060]]
extensive outreach and engagement with affected stakeholders, including
States, industry, and individuals. DHS also conducted a roundtable
discussion on privacy considerations with non-profit organizations
representing varied interests.
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\24\ 86 FR 20320 (April 19, 2021).
\25\ 86 FR 31987 (June 16, 2021).
\26\ 86 FR 51625 (Sept. 16, 2021).
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The RFI requested comments on 13 specific topics, including:
potential security risks arising from mDL usage and mitigating
solutions, potential privacy concerns or benefits associated with mDL
transactions, the maturity of certain industry standards and the
appropriateness of DHS's adoption of them, costs to individuals to
obtain mDLs, and various technical topics associated with mDL issuance
and communications. In response, DHS received about 60 comments. Please
see Part IV, below, for a detailed discussion of the comments received,
which are also referenced throughout this preamble.
C. mDL Overview
1. mDLs Generally
Driven by increasing public demand for more convenient, secure, and
privacy-enhancing forms of identification, many States have invested
significantly and rapidly in recent years to develop mDL technology. An
mDL is generally recognized as the digital representation of an
individual's identity information contained on a State-issued physical
driver's license or identification card.\27\ An mDL may be stored on a
diverse range of portable or mobile electronic devices, such as
smartphones, smartwatches, and storage devices containing memory. Like
a physical card, mDL data originates from identity information about an
individual that is maintained in the database of a State driver's
licensing agency.
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\27\ A technical description of mDLs as envisioned by the
American Association of Motor Vehicle Administrators may be found at
https://www.aamva.org/Mobile-Drivers-License/.
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Unlike physical driver's licenses that are read and verified
visually through human inspection of physical security features, an mDL
is read and verified electronically using a device known simply as a
``reader'' (discussed in Part II.C.2., below). Physical cards employ
physical security features to deter fraud and tampering, such as
``easily identifiable visual or tactile [security] features'' on the
surface of a card.\28\ An mDL, in contrast, combats fraud through the
use of digital security features that are not recognizable through
human inspection. For example, mDLs usually rely on digital security
through use of asymmetric cryptography/public key infrastructure (PKI).
As discussed in the RFI,\29\ Asymmetric cryptography generates a pair
of encryption ``keys'' to encrypt and decrypt protected data. One key,
a ``public key,'' is distributed publicly, while the other key, a
``private key,'' is held by the State driver's licensing agency (i.e.,
a Department of Motor Vehicles, or ``DMV''). When a DMV issues an mDL
to an individual (see Fig. 1, below, communication no. 1), the DMV uses
its private key to digitally ``sign'' the mDL data. A Federal agency
validates the integrity of the mDL data by obtaining the DMV's public
key to verify the digital signature (see Fig. 1: mDL Secure
Communications). Private keys and digital signatures are elements of
data encryption that protect against unauthorized access, tampering,
and fraud.
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\28\ 6 CFR 37.15(c) and 37.17(h).
\29\ See 86 FR 20320, 20324 (April 19, 2021).
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Generally, mDL-based identity verification under REAL ID would
involve a triad of secure communications between a State driver's
licensing agency, an mDL holder, and a Federal agency. Specifically,
and as shown in Fig. 1, below, the following three communications would
occur: (1) Issuance and Updates: the DMV would issue or ``provision''
an mDL onto a mobile device of the person requesting the mDL (who then
becomes the mDL holder), (2) Data Transfer: the mDL holder would
authorize release of relevant data from the device to a Federal agency,
which would use a reader to retrieve data, and (3) Validation: the
Federal agency would use a reader, to confirm that the data originated
from the issuing DMV and is unchanged, by verifying the DMV's public
key. Although not depicted in Fig. 1, the Federal agency would also
validate (via human inspection or facial matching software) that the
mDL belongs to the individual presenting it by comparing the
individual's live appearance to the photo retrieved by the reader.
Standardized communication interfaces are necessary to enable Federal
agencies to exchange information with all 56 U.S. States and
territories that issue mDLs.
[[Page 60061]]
[GRAPHIC] [TIFF OMITTED] TP30AU23.005
2. mDL Readers
Any Federal agency that chooses to accept mDLs for REAL ID official
purposes would need to procure and use readers to validate an mDL
holder's identity data from their mobile device and establish trust
that the mDL is secure by using private-public key data encryption.
Non-Federal agencies, such as State agencies, businesses, and other
entities who choose to accept mDLs for uses beyond the scope of REAL ID
are not governed by the REAL ID Act or regulations and therefore would
make their own independent decisions concerning reading mDLs and reader
procurement.\30\ The reader would confirm that the mDL holder's
identity data is valid by performing the following steps: establishing
a secure digital connection with an mDL holder's mobile device,
receiving the required mDL information for identity verification,
verifying its authenticity and integrity by validating the driver's
licensing agency's digital signature of the mDL data, and confirming
that the mobile device possesses the unique device key corresponding to
the mDL at the time of issuance.
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\30\ Non-Federal agencies and other entities who choose to
accept mDLs for uses beyond the scope of REAL ID should also
recognize the need for a reader to ensure the validity of the mDL.
Any verifying entity can validate in the same manner as a Federal
agency if they implement the standardized communication interface
requirements specified in this proposed rule, which would require
investment to develop the necessary IT infrastructure and related
proceses.
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An mDL reader can take multiple forms, ranging from software to
hardware. In its simplest form, an mDL reader can be an app installed
on a smartphone or other mobile device. A reader could also be a
dedicated device. This is expected to be a low-cost solution that could
be added to existing smartphones carried by a verifying entity's
employee. While reader development is ongoing in the industry, TSA
understands that companies are already beginning to offer verification
apps for free on their commercial app stores. As reader technology
continues to evolve, there will likely be wide range of reader options
with various capabilities and associated price points.\31\
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\31\ Readers for mDLs have specific requirements and at this
time are not interchangeable with readers for other types of Federal
cards, such as the Transportation Worker Identification Credential
(TWIC). Although TSA is evaluating some mDLs at select airport
security checkpoints (see Part II.E.), cost estimates for readers
used in the evaluations are not available because those readers are
non-commercially available prototypes designed specifically for
integration into TSA-specific IT infrastructure that few, if any,
other Federal agencies use. In addition, mDL readers are evolving
and entities who accept mDLs would participate voluntarily.
Accordingly, associated reader costs are not quantified at this time
but TSA intends to gain a greater understanding of any costs to
procure reader equipment as the technology continues to evolve.
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3. State mDL Issuance
As noted above, mDL-issuance is proliferating rapidly among States,
with nearly half of all States piloting, issuing, or considering mDLs.
As of the date of this NPRM, at least eight States (Arizona, Colorado,
Delaware, Louisiana, Maryland, Mississippi, Oklahoma, and Utah) are
issuing mDLs, and three States (Florida, Iowa, and Virginia) are
currently piloting or have piloted mDLs. Additionally, at least 17
States (California, District of Columbia, Georgia, Hawaii, Illinois,
Indiana, Kentucky, Michigan, Missouri, New Jersey, New York, North
Dakota, Pennsylvania, Puerto Rico, Tennessee, Texas, and Wyoming) have
indicated they are studying mDLs or considering enabling legislation.
Based on its analysis of the current environment, TSA believes that
States are issuing mDLs using widely varying technology solutions,
resulting in a fragmented environment rather than a common standard for
issuance and use. The various States issuing or piloting mDLs are
believed to be using technology solutions provided by multiple vendors,
and it is not clear whether such technological diversity provides the
safeguards and interoperability necessary for Federal acceptance. For
example, in September 2021 and March 2022, Apple announced \32\ that it
was working with 13 States (Arizona, Colorado, Connecticut, Georgia,
Hawaii, Iowa, Kentucky, Maryland, Mississippi, Ohio,
[[Page 60062]]
Oklahoma, Puerto Rico, and Utah) to enable their mDLs to be provisioned
into Apple's Wallet app. Google and GET Group North America have made
similar announcements.\33\ States choosing a variety of technology
solutions, which could result in non-standard, non-compatible
technologies, which raises additional questions concerning the Federal
government's ability to accept the mDLs for Federal purposes.
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\32\ https://www.apple.com/newsroom/2021/09/apple-announces-first-states-to-adopt-drivers-licenses-and-state-ids-in-wallet/;
https://www.apple.com/newsroom/2022/03/apple-launches-the-first-drivers-license-and-state-id-in-wallet-with-arizona/.
\33\ https://support.google.com/wallet/answer/12436402?hl=en;
https://getgroupna.com/get-mobile-id-is-now-accepted-at-tsa-precheck/.
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Although detailed mDL adoption statistics are unavailable,
anecdotal information and fragmented reporting indicates that mDLs are
rapidly gaining public acceptance. For example, Louisiana has recently
reported that over one million residents (representing more than 20% of
its population) have installed Louisiana's mDL app on their mobile
devices.
4. Potential Benefits of mDLs
An mDL has potential benefits for all stakeholders. For Federal
agencies that require REAL ID-compliant IDs for official purposes, mDLs
may provide efficiency and security enhancements. Compared to physical
cards, which rely on manual inspection of physical security features on
the surface of a card designed to deter tampering and fraud, mDLs rely
on digital security features that are immune to many vulnerabilities of
physical security features. For individuals, some commenters noted that
mDLs may provide a more secure, convenient, privacy-enhancing, and
``touchless'' method of identity verification compared to physical
IDs.\34\ Among other privacy-enhancing features, the holder of an mDL
could control what data fields are released. For example, if an mDL is
used for identity purposes with a Federal agency, the holder could
restrict the agency to receiving only the data necessary and required
by the agency to verify the individual's identity. Potential hygiene
benefits also derive from the contact-free method of ID verification
enabled by mDLs. An mDL holder may transmit data to a verifying Federal
agency's mDL reader by hovering their mDL above the reader, potentially
eliminating any physical contact with the individual's mobile device
thereby reducing germ transmission.
---------------------------------------------------------------------------
\34\ See, e.g., comments submitted by: Applied Recognition,
Bredemarket, Hiday, Mothershed, Muller, State of Connecticut, DHS of
Motor Vehicles, Secure Technology Alliance, U.S. Travel Association.
---------------------------------------------------------------------------
D. Current and Emerging Industry Standards and Government Guidelines
for mDLs
The nascence of mDLs and absence of standardized mDL-specific
requirements provide an opportunity for industry and government to
develop standards and guidelines to close this void. TSA is aware of
multiple such documents, both published and under development, from
both Federal and non-government sources. This section discusses
standards and guidelines that form the basis of many of the
requirements proposed in this rulemaking, as well as additional
documents that may inform the upcoming Phase 2 rulemaking. As discussed
in Part III.B.8, below, this rulemaking proposes to amend Sec. 37.4 by
incorporating by reference into part 37 nineteen standards and
guidelines. All proposed incorporation by reference material is
available for inspection at DHS Headquarters in Washington DC, please
email [email protected]. The material may also be
obtained from its publisher, as discussed below.
1. American Association of Motor Vehicle Administrators
In September 2022, the American Association of Motor Vehicle
Administrators published mDL Implementation Guidelines (AAMVA
Guidelines). Mobile Driver's License (mDL) Implementation Guidelines
Version 1.2 (Jan. 2023), American Association of Motor Vehicle
Administrators, 4401 Wilson Boulevard, Suite 700, Arlington, VA 22203,
available at https://aamva.org/getmedia/b801da7b-5584-466c-8aeb-f230cef6dda5/mDL-Implementation-Guidelines-Version-1-2_final.pdf. The
Guidelines are available to the public for free at the link provided
above. The AAMVA Guidelines adapt industry standard ISO/IEC 18013-
5:2021 (discussed in Part II.D.4., below), for State driver's licensing
agencies through the addition of more stringent and more specific
recommendations, as the ISO/IEC standard has been developed for
international purposes and may not meet all purposes and needs of
States and the Federal Government. For example, Part 3.2 of the AAMVA
Guidelines modify and expand the data elements specified in ISO/IEC
18013-5:2021, in order to enable the mDL to indicate the REAL ID
compliance status of the companion physical card, as well as to ensure
interoperability necessary for Federal acceptance. AAMVA has added data
fields for DHS Compliance and DHS Temporary Lawful Status. These
additional fields provide the digital analog to the requirements for
data fields for physical cards defined in 6 CFR 37.17(n) \35\ and
37.21(e) \36\ respectively. As discussed generally in Part III.B,
below, Sec. 37.10(a)(1) and (4) of this proposed rule would require a
State to explain, as part of its application for a waiver, how the
State issues mDLs that are compliant with specified requirements of the
AAMVA Guidelines.
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\35\ Section 37.17(n) provides, ``The card shall bear a DHS-
approved security marking on each driver's license or identification
card that is issued reflecting the card's level of compliance as set
forth in Sec. 37.51 of this Rule.''
\36\ Section 37.21(e) provides, ``Temporary or limited-term
driver's licenses and identification cards must clearly indicate on
the face of the license and in the machine readable zone that the
license or card is a temporary or limited-term driver's license or
identification card.''
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2. Certification Authority Browser Forum
The Certification Authority Browser Forum (CA/Browser Forum) is an
organization of vendors of hardware and software used in the production
and use of publicly trusted certificates. These certificates are used
by forum members, non-member vendors, and governments to establish the
security and trust mechanisms for public key infrastructure-enabled
systems. The CA/Browser Forum has published two sets of requirements
applicable for any implementers of PKI, including States that are
seeking to deploy Certificate Systems that must be publicly trusted and
used by third parties:
Baseline Requirements for the Issuance and Management of
Publicly[hyphen]Trusted Certificates v. 1.8.6 (December 14, 2022),
available at https://cabforum.org/wp-content/uploads/CA-Browser-Forum-BR-1.8.6.pdf, and
Network and Certificate System Security Requirements v.
1.7 (April 5, 2021), available at https://cabforum.org/wp-content/uploads/CA-Browser-Forum-Network-Security-Guidelines-v1.7.pdf. CA/
Browser Forum, 815 Eddy St, San Francisco, CA 94109, (415) 436-9333.
These documents are available to the public for free at the links
provided above.
To issue mDLs that can be trusted by Federal agencies, each issuing
State must establish a certificate system, including a root
certification authority that is under control of the issuing State. TSA
believes the CA/Browser Forum requirements for publicly trusted
certificates have been proven to be an effective model for securing
online transactions. As discussed generally in Part III.B.4, below,
appendix A to
[[Page 60063]]
subpart A of the part, sections 1, 2, and 4-8, require compliance with
specified requirements of the CA/Browser Forum Baseline Requirements
and/or Network and Certificate System Requirements. Section 37.4 of
this proposed rule would IBR these CA/Browser Forum references.
3. Cybersecurity Guidelines
DHS and the Cybersecurity and Infrastructure Security Agency (CISA)
have published two guidelines which are relevant to the operations of
States' mDL issuance systems:
National Cyber Incident Response Plan (Dec. 2016),
available at https://www.cisa.gov/uscert/sites/default/files/ncirp/National_Cyber_Incident_Response_Plan.pdf, and
CISA Cybersecurity Incident & Vulnerability Response
Playbooks (Nov. 2021), available at https://www.cisa.gov/sites/default/files/publications/Federal_Government_Cybersecurity_Incident_and_Vulnerability_Response_Playbooks_508C.pdf.
Cybersecurity and Infrastructure Security Agency, Mail Stop 0380,
245 Murray Lane, Washington, DC 20528-0380, (888) 282-0870. These
guidelines, available for free at the links provided above, provide
details on best practices for management of systems during a
cybersecurity incident, providing recommendations on incident and
vulnerability response. Management of cybersecurity incidents and
vulnerabilities are critical to maintenance of a State's mDL issuance
information technology (IT) infrastructure. As discussed generally in
Part III.B.4, below, appendix A to subpart A of the part, section 8,
requires compliance with specified requirements of the DHS National
Cyber Incident Response Plan and the CISA Cybersecurity Incident &
Vulnerability Response Playbooks. Section 37.4 of this proposed rule
would IBR these DHS and CISA standards.
4. ISO/IEC Standards and Technical Specifications
Two international standards-setting organizations, the
International Organization for Standardization (ISO) and the
International Electrotechnical Commission (IEC),\37\ are jointly
drafting two series of multi-part International Standards and Technical
Specifications.\38\ Series ISO/IEC 18013, Personal identification--ISO-
compliant driving licence Parts 5-7, are specific to mDLs, and series
ISO/IEC 23220 Cards and security devices for personal identification--
Building blocks for identity management via mobile devices, Parts 1-6,
concern digital identity (of which mDLs are a subset). DHS TSA has
participated in the development of both Series as a non-voting member
of the United States national body member of the Joint Technical
Committee.\39\ Together, both Series would establish standardized
interfaces that would enable the mDL communications triad (see Part
II.C.1., above) as follows: (1) State driver's licensing agency and the
mDL holder (Series 23220), (2) mDL Holder and a verifying entity
(Series 18013), and (3) verifying entity and State licensing agency
(Series 18013).
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\37\ ISO is an independent, non-governmental international
organization with a membership of 164 national standards bodies. ISO
creates documents that provide requirements, specifications,
guidelines or characteristics that can be used consistently to
ensure that materials, products, processes and services are fit for
their purpose. The IEC publishes consensus-based international
standards and manages conformity assessment systems for electric and
electronic products, systems and services, collectively known as
``electrotechnology.'' ISO and IEC standards are voluntary and do
not include contractual, legal or statutory obligations. ISO and IEC
standards contain both mandatory requirements and optional
recommendations, and those who choose to implement the standards
must adopt the mandatory requirements.
\38\ ISO defines an International Standard as ``provid[ing]
rules, guidelines or characteristics for activities or for their
results, aimed at achieving the optimum degree of order in a given
context. It can take many forms. Apart from product standards, other
examples include: test methods, codes of practice, guideline
standards and management systems standards.'' www.iso.org/deliverables-all.html. In contrast, ISO defines a ``Technical
Specification'' as ``address[ing] work still under technical
development, or where it is believed that there will be a future,
but not immediate, possibility of agreement on an International
Standard. A Technical Specification is published for immediate use,
but it also provides a means to obtain feedback. The aim is that it
will eventually be transformed and republished as an International
Standard.'' www.iso.org/deliverables-all.html.
\39\ A member of the TSA serves as DHS's representative to the
Working Group.
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In September 2021, ISO and IEC published international standard
ISO/IEC 18013, Part 5, entitled, ``Personal identification--ISO-
compliant driving licence.'' ISO/IEC 18013-5:2021, Personal
identification--ISO-compliant driving licence--Part 5: Mobile driving
licence (mDL) application (Sept. 2021), International Organization for
Standardization, Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva,
Switzerland, +41 22 749 01 11, www.iso.org/contact-iso.html.\40\
Section 37.4 of this rulemaking proposes to IBR this standard, which is
available from DHS as discussed above. In addition, the American
National Standards Institute (ANSI), a private organization not
affiliated with DHS, will provide public access \41\ to ISO/IEC 18013-
5:2021 until October 16, 2023. Standard ISO/IEC 18013-5:2021
standardizes the interface between an mDL and an entity seeking to read
an individual's mDL for identify verification purposes, and sets full
operational and communication requirements for both mDLs and mDL
readers. This standard applies to ``attended'' mode verification, in
which both the mDL holder and an officer or agent of a verifying entity
are physically present together during the time of identity
verification.\42\ DHS received numerous comments in response to the RFI
concerning the appropriateness of this standard as a starting point for
future regulatory requirements.\43\ Many comments received in response
to the RFI noted that standard ISO/IEC 18013-5:2021, which published in
Sept. 2021, provides a sufficient baseline for secure Federal
acceptance.\44\ After carefully
[[Page 60064]]
considering all comments received, TSA believes ISO/IEC 18013-5:2021 is
critical to enabling the interoperability, security, and privacy
necessary for wide acceptance of mDLs by Federal agencies for official
purposes. As discussed in Part III.B, below, this NPRM proposes to IBR
this standard into part 37. Specifically, Sec. 37.8 of the proposed
rule would require Federal agencies to validate an mDL as required by
standard ISO/IEC 18013-5:2021, and Sec. 37.10(a)(4) would require a
State to explain, as part of its application for a waiver, how the
State issues mDLs that are interoperable with this standard to provide
the security necessary for Federal acceptance.
---------------------------------------------------------------------------
\40\ Forthcoming Part 6 of Series ISO/IEC 18013, ``mDL test
methods,'' is a technical specification that will enable testing of
mDLs and readers to certify conformance with ISO/IEC 18013-5:2021.
TSA anticipates a draft of this standard may be completed by the end
of 2023, and the final document may publish at the end of 2024.
\41\ ANSI advises interested persons to visit the following
website to obtain access: https://www.surveymonkey.com/r/DQVJYMK.
This link will direct interested persons to a nongovernment website
that is not within the Federal government's control and may not
follow the same privacy, security, or accessibility policies as
Federal government websites. ANSI requires individuals to complete
an online license agreement form, which will ask for name,
professional affiliation, and email address, before it grants access
to any standards. ANSI will provide access on a view-only basis,
meaning copies of the document cannot be downloaded or modified.
Individuals who access non-governmental sites to view available
standards are subject to the policies of the owner of the website.
For access to non-final draft standards, please contact ISO/IEC
using the information provided earlier.
\42\ Part 7 of Series ISO/IEC 18013, entitled ``mDL add-on
function,'' is an upcoming technical specification that will
standardize interfaces for ``unattended'' mode verification, in
which the mDL holder and officer/agent of the verifying agency are
not physically present together, and the identity verification is
conducted remotely. Unattended identity verification is not
currently considered a REAL ID use case.
\43\ See, e.g., comments submitted by: American Association of
Motor Vehicle Administrators; American Civil Liberties Union,
Electronic Frontier Foundation, and Electronic Privacy Information
Center; Apple; Association for Convenience & Fuel Retailing; CBN
Secure Technologies; FaceTec; Florida DHS of Highway Safety and
Motor Vehicles; IDEMIA; Maryland DHS of Transportation, Motor
Vehicle Administration; National Immigration Law Center and
Undersigned Organizations; Secure Technology Alliance; State of
Connecticut, DHS of Motor Vehicles; Underwriters Laboratories;
Verifiable Credentials Policy Committee, Blockchain Advocacy
Coalition. All comments are available at https://www.regulations.gov/docket/DHS-2020-0028.
\44\ See comments submitted by American Association of Motor
Vehicle Administrators; Florida DHS of Highway Safety and Motor
Vehicles; Maryland DHS of Transportation, Motor Vehicle
Administration; State of Connecticut, DHS of Motor Vehicles.
---------------------------------------------------------------------------
The ISO/IEC 23220 Series of Technical Specifications, ``Cards and
security devices for personal identification--Building blocks for
identity management via mobile devices,'' cover international digital
IDs broadly and are applicable to mDLs. ISO/IEC 23220: Cards and
security devices for personal identification--Building blocks for
identity management via mobile devices, International Organization for
Standardization, Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva,
Switzerland, +41 22 749 01 11, www.iso.org/contact-iso.html. This
Series consists of six Parts, with Parts 3, 5, and 6 being relevant to
mDLs and the forthcoming Phase 2 rulemaking. More specifically, Series
23220 would establish the following critical requirements for
``provisioning'' \45\ an mDL, which refers to the various steps
required for a State driver's licensing agency to securely place an mDL
onto a mobile device:
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\45\ The initial step of provisioning requires proving that an
mDL applicant owns the mobile device onto which the mDL will be
stored. Next, a trusted connection would be established between the
licensing agency and the target device. Finally, the licensing
agency would use this connection to securely transmit and update mDL
data on the device.
---------------------------------------------------------------------------
Part 3, ``Protocols and services for installation and
issuing phase,'' covers data function calls and formatting that States
will use to communicate (e.g., provision, refresh, revoke) with a
mobile device.
Part 5, ``Trust models and confidence level assessment,''
covers trust framework and provisioning, including confidence levels,
identity proofing, binding, identity resolution, evidence validation,
evidence verification, and holder authentication.
Part 6, ``Mechanism for use of certification on
trustworthiness of secure area,'' primarily covers device security
requirements and trust of the secure areas in mobile devices.
TSA anticipates that Series ISO/IEC 23220 will define critical
requirements for the interface between a State driver's licensing
agency and mobile device. However, none of Parts 3, 5, and 6 of Series
23220 have published. TSA understands that drafts of Parts 3 and 5 may
publish in late 2023, and final publication is possible by the end of
2024; publication dates for Part 6 are unknown, but a draft is
anticipated in 2024. DHS received many comments in response to the RFI
cautioning, however, that standard ISO/IEC 23220, Parts 3, 5, and 6,
are not sufficiently mature to inform regulatory requirements.\46\
Given the evolving stage of Series ISO/IEC 23220 and comments to the
RFI, TSA believes it is premature to rely on this Series to inform this
proposed rulemaking and thus is not proposing to IBR them in this NPRM.
TSA may consider adopting requirements of pertinent Parts of this
standard in the upcoming Phase 2 rulemaking, pending review of the
final published documents.
---------------------------------------------------------------------------
\46\ See comments submitted by American Civil Liberties Union,
Electronic Frontier Foundation, and Electronic Privacy Information
Center; IDEMIA; Maryland DHS of Transportation, Motor Vehicle
Administration; Underwriters Laboratories.
---------------------------------------------------------------------------
5. National Institute for Standards and Technology
i. Digital Identity Guidelines
The National Institute for Standards and Technology (NIST) has
published Digital Identity Guidelines, NIST SP 800-63-3, that cover
technical requirements for Federal agencies implementing digital
identity. NIST Special Publication 800-63-3, Digital Identity
Guidelines (June 2017), National Institute of Standards and Technology,
U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899,
available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-3.pdf. The Digital Identity Guidelines, available for
free at the link provided above, define technical requirements in each
of the areas of identity proofing, registration, user authentication,
and related issues. Because TSA is not aware of a common industry
standard for mDL provisioning that is appropriate for official REAL ID
purposes today, TSA views the current NIST Digital Guidelines as
critical to informing waiver application requirements for States
regarding provisioning (discussed in detail in Part III.B.4., below).
As discussed generally in Part III.B.4, below, under proposed rule text
Sec. 37.10(a)(2), which requires compliance with appendix A to subpart
A of the part, a State must explain, as part of its application for a
waiver, how the State issues mDLs that are compliant with NIST SP 800-
63-3 to provide the security for mDL IT infrastructure necessary for
Federal acceptance. Section 37.4 of this proposed rule would IBR NIST
SP 800-63-3.
NIST has also published Digital Identity Guidelines Authentication
and Lifecycle Management, NIST SP 800-63B, as a part of NIST SP 800-63-
3. NIST Special Publication 800-63B, Digital Identity Guidelines:
Authentication and Lifecycle Management (June 2017), National Institute
of Standards and Technology, U.S. Department of Commerce, 100 Bureau
Drive, Gaithersburg, MD 20899, available at
https://nvlpubs.nist.gov/nistpubs/specialpublications/nist.sp.800-63b.pdf. This document provides technical requirements for Federal
agencies implementing digital identity services. The standard focuses
on the authentication of subjects interacting with government systems
over open networks, establishing that a given claimant is a subscriber
who has been previously authenticated and establishes three
authenticator assurance levels. As discussed generally in Part III.B.4,
below, proposed rule text Sec. 37.10(a)(2) requires compliance with
appendix A to subpart A of the part, which would require a State to
explain, as part of its application for a waiver, how the State manages
its mDL issuance infrastructure using authenticators at assurance
levels provided in NIST SP 800-63B. Section 37.4 of this proposed rule
would incorporate by reference NIST SP 800-63B.
NIST is developing a revision to the Digital Identity Guidelines,
SP 800-63-4, which is expected to impact key issues related to mDL
processes. This publication and its companion volumes NIST SP 800-63A
Rev. 4, SP 800-63B Rev. 4, and SP 800-63C Rev. 4, provide technical
guidelines for the implementation of digital identity services. Initial
public drafts of this suite published in December 2022, and final
drafts may publish in early 2024. The full suite of draft NIST Digital
Identity Guidelines, NIST SP 800-63-4, are available for free as
follows:
NIST SP 800-63-4, Digital Identity Guidelines, Initial
Public Draft (December 2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-4.ipd.pdf.
NIST SP 800-63A Rev. 4 Digital Identity Guidelines:
Enrollment and
[[Page 60065]]
Identity Proofing, Initial Public Draft (December 2022), available at
https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63A-4.ipd.pdf;
NIST SP 800-63B Rev. 4 Digital Identity Guidelines:
Authentication and Lifecycle Management, Initial Public Draft (December
2022), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63B-4.ipd.pdf;
NIST SP 800-63C Rev. 4 Digital Identity Guidelines:
Federation and Assertions, Initial Public Draft (December 2022),
available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63C-4.ipd.pdf.
National Institute of Standards and Technology, U.S. Department of
Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. The final versions
of these publications may be candidates for incorporation by reference
(pending review of the final published documents) in the forthcoming
Phase 2 rulemaking.
ii. Federal Information Processing Standards
NIST also maintains the Federal Information Processing Standards
(FIPS) which relate to the specific protocols and algorithms necessary
to securely process data. This suite of standards includes:
NIST FIPS PUB 140-3, Security Requirements for
Cryptographic Modules (March 22, 2019), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.140-3.pdf,
NIST FIPS PUB 180-4, Secure Hash Standard (SHS) (August 4,
2015), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.180-4.pdf,
NIST FIPS PUB 186-5, Digital Signature Standard (DSS)
(February 3, 2023), available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.186-5.pdf,
NIST FIPS PUB 197, Advanced Encryption Standard (AES)
(November 26, 2001) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197.pdf,
NIST FIPS PUB 198-1, The Keyed-Hash Message Authentication
Code (HMAC) (July 16, 2008) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.198-1.pdf, and
NIST FIPS PUB 202, SHA-3 Standard: Permutation-Based Hash
and Extendable-Output Functions (August 4, 2015) available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.202.pdf.
National Institute of Standards and Technology, U.S. Department of
Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. This suite of FIPS
standards, available for free at the links provided above, are critical
to the transactions required for mDLs, and any Federal systems which
interact with or are used to verify a mDL for REAL ID official purposes
will be required to use the algorithms and protocols defined. As
discussed generally in Part III.B, below, Sec. 37.10(a)(4) requires
compliance with specified requirements of NIST FIPS PUB 180-4, 186-5,
197, 198-1, and 202, and appendix A to subpart A of the part, section
5, requires compliance with FIPS PUB 140-3. Section 37.4 of this
proposed rule would incorporate by reference the suite of FIPS
standards discussed above.
iii. Security and Privacy Controls for Information Systems and
Organizations; Key Management
NIST has published several guidelines to protect the security and
privacy of information systems:
NIST SP 800-53 Rev. 5, Security and Privacy Controls for
Information Systems and Organizations (September 2020), available at
https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r5.pdf.
NIST SP 800-57 Part 1, Rev. 5, Recommendation for Key
Management: Part 1--General (May 2020), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt1r5.pdf.
NIST SP 800-57 Part 2, Rev. 1, Recommendation for Key
Management: Part 2--Best Practices for Key Management Organizations
(May 2019), available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt2r1.pdf.
NIST SP 800-57 Part 3, Rev. 1, Recommendation for Key
Management, Part 3: Application-Specific Key Management Guidance
(January 2015) available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57Pt3r1.pdf.
National Institute of Standards and Technology, U.S. Department of
Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. All of these
documents are available for free at the links provided above.
Collectively, NIST SP 800-53 Rev. 5 and NIST SP 800-57 provide
relevant controls for States regarding mDL security and privacy
covering a broad range of topics related to the administration of a
certificate system including: access management; certificate life-cycle
policies; operational controls for facilities and personnel; technical
security controls; and vulnerability management such as threat
detection, incident response, and recovery planning. Due to the
sensitive nature of State Certificate System processes and the
potential for significant harms to security if confidentiality,
integrity, or availability of the certificate systems is compromised,
the minimum risk controls specified in appendix A to subpart A of the
part require compliance with the NIST SP 800-53 Rev. 5 ``high
baseline'' as set forth in that document, as well as compliance with
the specific risk controls described in the appendix. In addition, and
as discussed generally in Part III.B, below: appendix A to subpart A of
the part, secs. 1-8, require compliance with NIST SP 800-53 Rev. 5;
secs. 1 and 5 require compliance with NIST SP 800-57 Part 1, Rev. 5;
sec. 1 requires compliance with NIST SP 800-57 Part 2 Rev. 1; and sec.
1 requires compliance with NIST SP 800-57 Part 3, Rev. 1. Section 37.4
of this proposed rule would incorporate by reference NIST SP 800-53
Rev. 5 and the full suite of NIST SP 800-57 references discussed above.
iv. Cybersecurity Framework
NIST has published the Framework for Improving Critical
Infrastructure Cybersecurity v. 1.1 (April 16, 2018), National
Institute of Standards and Technology, U.S. Department of Commerce, 100
Bureau Drive, Gaithersburg, MD 20899, available at https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf. This document,
available for free at the link provided above, provides relevant
information for cybersecurity for States issuing mDLs. As discussed
generally in Part III.B., below, certain requirements from the NIST
Cybersecurity Framework have been adopted in appendix A to subpart A of
the part, secs. 1,2, 5-8. Section 37.4 of this proposed rule would
incorporate by reference the NIST Cybersecurity Framework.
6. W3C Standards
In its RFI, DHS specifically sought comments on industry standards
that could inform future regulatory requirements.\47\ DHS received
multiple comments \48\ concerning standards being developed by the
World Wide Web Consortium (W3C), which is a
[[Page 60066]]
standards-development organization that develops open standards for the
World Wide Web. Similar to its involvement with ISO, DHS has
participated in the development of these standards as a non-voting
member in the W3C Credential Community Group.
---------------------------------------------------------------------------
\47\ 86 FR 20320 at 20325-26.
\48\ See comments submitted by American Civil Liberties Union,
Electronic Frontier Foundation, and Electronic Privacy Information
Center; Association for Convenience & Fuel Retailing; CBN Secure
Technologies; Indico.tech and Lorica Identity; Mastercard; Muller;
OpenID Foundation; UL; Verifiable Credentials Policy Committee,
Blockchain Advocacy Coalition.
---------------------------------------------------------------------------
While TSA is not proposing to IBR these W3C standards in this NPRM,
TSA understands that W3C is developing two standards concerning digital
identification that, like the ISO/IEC Series of standards discussed
above, may be relevant to the Phase 2 rulemaking. The W3C standards are
``Verifiable Credentials Data Model v1.1'' (VCDM v1.1) and
``Decentralized Identifiers v1.0'' (DID v1.0). Verifiable Credentials
Data Model v1.1 (March 3, 2022), W3C/MIT, 105 Broadway, Room 7-134,
Cambridge, MA 02142, available at www.w3.org/TR/vc-data-model/;
Decentralized Identifiers (DIDs) v1.0 (July 19, 2022), W3C/MIT, 105
Broadway, Room 7-134, Cambridge, MA 02142, available at www.w3.org/TR/did-core/. These documents are available to the public for free at the
links provided above. DHS has participated in the development of these
standards as a non-voting member in the W3C Credential Community Group.
In March 2022, the W3C published VCDM v1.1. A ``Verifiable
Credential'' (VC) is a form of digital identification, developed under
this standard, with features that enable a verifying entity to confirm
its authenticity.\49\ This standard defines elements of a data model
that enables using a digital identity in online transactions. The
standard appears to provide broad requirements that enable issuance of
diverse types of secure digital identification using varying data
fields (e.g., name, date of birth), data types (e.g., text, numeric
values, length of data string), and methods of digital security.
Although the standard sets forth specifications for the data model
generally, TSA understands the standard does not provide specific
requirements to implement security and privacy protections for the data
model. Instead, references to these topics appear to be largely non-
binding, informative guidance. For example, the standard requires that
the VC contain at least one encryption mechanism to detect tampering
(such as a digital signature), but does not set forth any specific
mechanisms that are acceptable.\50\ Similarly, although the standard
encourages the use of mechanisms to enable a VC holder to selectively
release only certain data to a verifying entity, it does not specify
acceptable implementation mechanisms.\51\
---------------------------------------------------------------------------
\49\ See VCDM sections 1 and 2.
\50\ See VCDM sections 4.7 and 8.1.
\51\ See VCDM sections 5.8 and 7.8.
---------------------------------------------------------------------------
In July 2022, W3C published complementary standard DID v1.0, which
specifies the essential requirements to enable the use of diverse types
of digital identification in online transactions. A ``DID,'' is a
unique identifier used in online transactions that, for example,
enables VC holders to authenticate themselves. A DID can be used in a
blockchain system. Like the VCDM standard, DHS understands that the
DIDs standard includes non-binding guidance, but no prescriptive
specifications, concerning security and privacy.
In their current forms, TSA understands that the W3C VCDM standard
and DID standard focus on the use of digital identification in
unattended mode internet transactions, which is different from the
attended, in-person REAL ID transactions contemplated for mDLs under
this rulemaking. In addition, the current versions of the W3C standards
do not set forth specific requirements concerning security and privacy
or an mDL-specific data model, which may impede States from developing
standardized, interoperable mDLs. Several commenters also expressed
similar concerns.\52\ TSA is not aware of any State pursuing an mDL
with the VCDM model as the sole data model. However, TSA understands
that W3C's work is ongoing, and future revisions may set forth
security, privacy requirements, interoperability requirements, and a
standardized data model needed for in-person REAL ID identity
verification. In addition, given the breadth of the VCDM and DID, it
may be possible in the future to develop a VCDM-based mDL that conforms
to both W3C recommendations and the ISO/IEC standards simultaneously,
providing full ecosystem interoperability. As stated above, TSA is not
proposing to IBR these W3C Standards in this NPRM.
---------------------------------------------------------------------------
\52\ See comments submitted by Muller and UL.
---------------------------------------------------------------------------
TSA understands that the standards and guidelines discussed above
in this Part II.D. are the most comprehensive and relevant references
governing mDLs today. TSA also acknowledges that many additional
standards and guidelines are in development covering diverse types of
digital identification that can be issued and verified by different
entities, both government and commercial. These emerging documents are
expected to concisely synthesize the large body of existing work from
NIST and standards-development organizations, and will provide
standardized mechanisms for mDLs. After carefully evaluating comments
concerning emerging industry standards and closely observing ongoing
development, TSA does not endorse any emerging standards at this time.
TSA will continue to monitor development, and the future Phase 2
rulemaking may incorporate by reference pertinent parts of emerging
standards (pending review of final published documents) that TSA
believes are appropriate for Federal acceptance of mDLs for REAL ID
official purposes.
E. DHS and TSA Involvement in mDLs
DHS and TSA have been actively participating in the mDL and digital
identity space for many years to keep pace with industry developments.
DHS has been participating in industry standards-development activities
by serving as a non-voting member on working groups of the ISO/IEC and
the W3C that are developing mDL/digital identity standards and
technical specifications. Concurrently, DHS and TSA have been
collaborating with industry to test the use of mDLs at various TSA
security checkpoints. In 2022, TSA, under its collaboration with Apple
(see Part II.C.3., above), launched a limited initiative that enables
Arizona, Maryland, and Colorado residents to test the use of mDLs
provisioned into the Apple Wallet app at select airport security
checkpoints.\53\ On May 18, 2023, TSA announced acceptance of Georgia
mDLs provisioned into the Apple Wallet app at select airport security
checkpoints.\54\ Similarly, on March 1, 2023 and June 1, 2023, TSA
announced acceptance of Utah-issued mDLs provisioned into the GET
Mobile ID app, and Maryland-issued mDLs provisioned into the Google
Wallet app, respectively, at select airports.\55\ Utah
[[Page 60067]]
utilizes a third-party mDL app produced by GET Group North America. DHS
and TSA anticipate additional collaborations with other States and
vendors in the future. These programs enable States, industry, and the
Federal government to evaluate mDLs and ensure that they provide the
security, privacy, and interoperability necessary for future, full-
scale acceptance at Federal agencies for official purposes as defined
in the REAL ID Act.
---------------------------------------------------------------------------
\53\ See TSA Biometrics Technology website, https://www.tsa.gov/biometrics-technology; Press Release, TSA, TSA enables Arizona
residents to use mobile driver's license or state ID for
verification at Phoenix Sky Harbor International Airport (Mar. 23,
2022), available at https://www.tsa.gov/news/press/releases/2022/03/23/tsa-enables-arizona-residents-use-mobile-drivers-license-or-state-id; Press Release, TSA, TSA enables Maryland residents to use
mobile driver's license or state ID for verification at Baltimore/
Washington International and Reagan National Airports (May 25,
2022), available at https://www.tsa.gov/news/press/releases/2022/05/25/tsa-enables-maryland-residents-use-mobile-drivers-license-or-state.
\54\ Press release, TSA, TSA enables Georgia residents to use
mobile driver's license or state ID for verification at ATL (May 18,
2023), available at https://www.tsa.gov/news/press/releases/2023/05/18/tsa-enables-georgia-residents-use-mobile-drivers-license-or-state-id
\55\ Press Release, TSA, TSA using state-of-the art identity
verification technology, accepting mobile driver licenses at SLC
security checkpoint (Mar. 9, 2023), available at https://www.tsa.gov/news/press/releases/2023/03/09/tsa-using-state-art-identity-verification-technology-accepting; Press Release, TSA, TSA
now accepts mobile IDs in Google Wallet on Android mobile devices,
starting with the State of Maryland (June 1, 2023), available at
https://www.tsa.gov/news/press/releases/2023/06/01/tsa-now-accepts-mobile-ids-google-wallet-android-mobile-devices.
---------------------------------------------------------------------------
III. Summary of the Proposed Rule
A. Overview
In addition to revising definitions applicable to the REAL ID Act
to incorporate mDLs, this rule proposes changes to 6 CFR part 37 that
would enable TSA to grant a temporary waiver to States that TSA
determines issue mDLs consistent with specified TSA requirements
concerning security, privacy, and interoperability. This rule would
enable Federal agencies, at their discretion, to accept for REAL ID
official purposes, mDLs issued by a State that has been granted a
waiver. The proposed rule would apply only to Federal agency acceptance
of State-issued mDLs as defined in this proposed rule for REAL ID
official purposes, but not other forms of digital identification,
physical driver's licenses or physical identification cards, or non-
REAL ID purposes. Any temporary waiver issued by TSA would be valid for
a period of 3 years from the date of issuance. The waiver enabled by
this rulemaking would be repealed when TSA publishes a Phase 2 rule
that would set forth comprehensive requirements for mDLs.
To obtain a waiver, a State would be required to submit an
application, supporting data, and other documentation to establish that
their mDLs meet TSA-specified criteria (discussed in Part III.B.4.,
below) concerning security, privacy, and interoperability. If the
Secretary determines, upon evaluation of a State's application and
supporting documents, that a State's mDL could be securely accepted
under the terms of a waiver, the Secretary may issue such State a
certificate of waiver. TSA intends to work with each State applying for
a waiver on a case-by-case basis to ensure that its mDLs meet the
minimum requirements necessary to obtain a waiver. This rulemaking
would establish the full process for a State to apply for a waiver,
including instructions for submitting the application and responding to
subsequent communications from TSA as necessary, specific information
and documents that a State must provide with its application, and
requirements concerning timing, issuance of decisions, requests for
reconsideration, and terms, conditions, and limitations related to
waivers. To assist States that are considering applying for a waiver,
TSA has developed guidelines, entitled, ``Mobile Driver's License
Waiver Application Guidance,'' which provide non-binding
recommendations of some ways that States can meet the application
requirements set forth in this rulemaking.\56\
---------------------------------------------------------------------------
\56\ The specific measures and practices discussed in the DHS
Waiver Application Guidance are neither mandatory nor necessarily
the ``preferred solution'' for complying with the requirements
proposed in the rule. Rather, they are examples of measures and
practices that a State issuer of mDLs may choose to consider as part
of its overall strategy to issue mDLs. States have the ability to
choose and implement other measures to meet these requirements based
on factors appropriate to that State, so long as DHS determines that
the measures implemented provide the levels of security and data
integrity necessary for Federal acceptance of mDLs for official
purposes as defined in the REAL ID Act and 6 CFR part 37. As
provided in proposed Sec. 37.10(c) of 6 CFR part 37, DHS may
periodically update the Guidance as necessary to recommend
mitigations of evolving threats to security, privacy, or data
integrity.
---------------------------------------------------------------------------
TSA cautions, however, that the waiver enabled by this rulemaking
is not a commitment by Federal agencies to accept mDLs issued by a
State to whom TSA has granted a waiver. Federal agencies exercise full
discretion over their identity verification policies, which may be
subject to change. A Federal agency that accepts mDLs may suddenly halt
acceptance for reasons beyond the agency's control, such as suspension
or termination of a waiver, technical issues with IT systems, or a loss
of resources to support mDLs. In such instances, an mDL holder seeking
to use an mDL for REAL ID official purposes (including boarding
commercially regulated aircraft or access to Federal facilities) may be
denied such uses. To avoid this issue, TSA strongly urges all mDL
holders to carry their physical REAL ID cards in addition to their
mDLs. This will ensure that mDL holders are not disenfranchised from
REAL ID uses if a Federal agency does not accept mDLs. Indeed, TSA has
long advised that passengers who choose to present mDLs in TSA
checkpoint testing must continue to have their physical cards readily
available in the event that a TSA officer requires such
identification.\57\ TSA also recommends to Federal agencies that they
regularly inform the public, in a form and manner of their choosing, of
their mDL acceptance policies. TSA urges the public to view mDLs not as
a replacement of physical REAL ID cards, but as a complement to them.
---------------------------------------------------------------------------
\57\ See, e.g., https://www.tsa.gov/real-id (see FAQ for ``Does
TSA accept mobile driver's licenses?'').
---------------------------------------------------------------------------
B. Specific Provisions
1. Definitions
TSA proposes adding new definitions to subpart A, Sec. 37.3. In
particular, new definitions for ``mobile driver's license'' and
``mobile identification card'' are necessary because the current
regulations predated the emergence of mDL technology and, therefore,
does not define these terms. Additionally, the definitions reflect
changes made by the REAL ID Modernization Act, which amended the
definitions of ``driver's license'' and ``identification card'' to
specifically include ``mobile or digital driver's licenses'' and
``mobile or digital identification cards.'' The proposed definitions in
this rule would provide a more precise definition of ``mobile driver's
license'' and ``mobile identification card'' by clarifying that those
forms of identification require a mobile electronic device to store the
identification information, as well as an electronic device to read
that information. TSA also proposes adding a new definition of ``mDL''
that collectively refers to mobile versions of both State-issued
driver's licenses and State-issued identification cards as defined in
the REAL ID Act. TSA also proposes adding additional definitions to
explain terms used in Sec. 37.10(a) and appendix A to subpart A to the
part. For example, the proposed rule would add new defintions for
``digital certificates'' and ``certificate systems,'' which are
necessary elements of risk controls for the IT systems that States use
to issue mDLs. In addition, the rulemaking proposes adding a definition
for ``certificate policy,'' which forms the governance framework for
the State's certificate systems. A State must develop, maintain, and
execute a certificate policy to comply with the requirements set forth
in appendix A to subpart A of the part.
2. TSA Issuance of Temporary Waiver From Sec. 37.5(b) and State
Eligibility Criteria
TSA proposes adding to subpart A new Sec. 37.7, entitled
``Temporary waiver for mDLs; State eligibility,'' to establish the
availability of a temporary waiver
[[Page 60068]]
for a State to exempt its mDLs from meeting the card-based compliance
requirement of Sec. 37.5(b). Section 37.7(a) authorizes TSA to issue a
temporary certificate of waiver to States that submit an application
for a waiver that demonstrates compliance with application criteria set
forth in Sec. 37.10(a) and (b). This waiver would only apply to mDLs,
not physical cards, and would not waive the requirement in Sec.
37.5(b) regarding State-based compliance or any other requirements in
the regulations. Issuance of a certificate of waiver to a State would
permit Federal agencies to continue accepting for official purposes
mDLs issued by those States when REAL ID enforcement begins on May 7,
2025. The mere issuance of a waiver to a State, however, does not
obligate any Federal agency to accept an mDL issued by such State; each
Federal agency retains discretion to determine its own policies
regarding identification, including whether to accept mDLs.
To be eligible for consideration for a waiver, a State must meet
the criteria set forth in proposed Sec. 37.7(b). These criteria
require that the issuing State: is in full compliance with REAL ID
requirements; has submitted an application demonstrating that the State
issues mDLs that provide security, privacy, and interoperability
necessary for Federal acceptance; and issues mDLs only to individuals
who have been issued a valid and unexpired REAL ID-compliant physical
driver's license or identification card. TSA's determination of whether
a State satisfies the eligibility criteria would be based on TSA's
evaluation of the information provided by the State in its application
(see Part III.B.4., below), as well as other information available to
TSA.
3. Requirements for Federal Agencies That Accept mDLs
TSA proposes adding to subpart A new Sec. 37.8, entitled
``Requirements for Federal agencies accepting mDLs issued by States
with temporary waiver.'' This section proposes that any Federal agency
that elects to accept mDLs for REAL ID official purposes must meet
three requirements in proposed new Sec. 37.8. First, a Federal agency
must confirm that the State holds a valid certificate of waiver.
Agencies would make this confirmation by verifying that the State's
name appears in a list of States to whom TSA has granted a waiver. TSA
would publish this list on the REAL ID website at www.dhs.gov/real-id/mDL (as provided in Sec. 37.9(b)(1)). Second, Federal agencies must
use an mDL reader to retrieve mDL data from an individual's mobile
device, and validate that the data is authentic and unchanged. To
retrieve and validate mDL data, Federal agencies must follow the
processes required by industry standard ISO/IEC 18013-5:2021. Finally,
if a State discovers that acceptance of a State's mDL is likely to
cause imminent or serious threats to the security, privacy, or data
integrity, the State must notify TSA at www.dhs.gov/real-id/mDL within
72 hours of such discovery. Examples of such triggering events include
cyber-attacks and other events that cause serious harm to a State's mDL
issuance system. TSA would consider whether such information warrants
suspension of that State's waiver under Sec. 37.9(e)(4)(i)(B) (see
discussion in Part III.B.6., below). If TSA elects not to issue a
suspension, Federal agencies would continue to exercise their own
discretion regarding continuing acceptance of mDLs.
4. Requirements for States Seeking to Apply for a Waiver
TSA proposes adding to subpart A new Sec. 37.9, which would set
forth a process for a State to request a temporary certificate of
waiver established in new Sec. 37.7. As provided in Sec. 37.9(a), a
State seeking a waiver must file a complete application as set forth in
Sec. 37.10(a) and (b), following instructions that would be available
at www.dhs.gov/real-id/mDL. Section 37.10(a) and (b) would set forth
all information, documents, and data that a State must include in its
application for a waiver. TSA is proposing that if TSA determines that
the means that a State implements to comply with the requirements in
Sec. 37.10(a) and (b) provide the requisite levels of security,
privacy, and data integrity for Federal acceptance of mDLs for official
purposes, TSA would grant such State a waiver. TSA does not, however,
propose prescribing specific means (other than the requirements
specified in appendix A to subpart A of the part, which is discussed
further in Part III.B.4.iv, below) that a State must implement.
Instead, States would retain broad discretion to choose and implement
measures to meet these requirements based on factors appropriate to
that State.
(i) Application Requirements
As set forth in Sec. 37.10(a)(1) through (4), a State would be
required to establish in its application how it issues mDL under the
specified criteria for security, privacy, and interoperability suitable
for acceptance by Federal agencies, as follows:
Paragraph (a)(1) would set forth requirements for mDL
provisioning.
Paragraph (a)(2) would specify requirements for managing
State Certificate Systems, which are set forth in appendix A to subpart
A of the part.
Paragraph (a)(3) would require a State to demonstrate how
it protects personally identifiable information of individuals during
the mDL provisioning process.
Paragraph (a)(4) would require a State to establish: how
it issues mDLs that are interoperable with requirements set forth in
standard ISO/IEC 18013-5:2021; that the State uses only those
algorithms for encryption,\58\ secure hash function,\59\ and digital
signatures that are specified in ISO/IEC 18013-5:2021, and in NIST FIPS
PUB 180-4, 186-5, 197, 198-1, and 202; and how the State complies with
the ``AAMVA mDL data element set'' as defined in the AAMVA mDL
Guidelines v. 1.2, Section 3.2 (see Part II.D., above, for a detailed
discussion of those references).
---------------------------------------------------------------------------
\58\ Encryption refers to the process of cryptographically
transforming data into a form in a manner that conceals the data's
original meaning to prevent it from being read. Decryption is the
process of restoring encrypted data to its original state. [IETF RFC
4949, Internet Security Glossary, Version 2, August 2007]
\59\ A function that processes an input value creating a fixed-
length output value using a method that is not reversible (i.e.,
given the output value of a function it is computationally
impractical to find the function's corresponding input value).
---------------------------------------------------------------------------
(ii) Audit Requirements
Section 37.10(b) would require a State to submit an audit report
prepared by an independent auditor verifying the accuracy of the
information provided by the State in response to Sec. 37.10(a), as
follows:
Paragraph (1) would set forth specific experience,
qualifications, and accreditations that an auditor must meet.
Paragraph (2) would require a State to provide information
demonstrating the absence of a potential conflict of interest of the
auditing entity.
(iii) Waiver Application Guidance
As set forth in Sec. 37.10(c), TSA proposes to publish ``Mobile
Driver's License Waiver Application Guidance,'' in the Federal Register
and on the REAL ID website at www.dhs.gov/real-id/mDL to assist States
in completing their applications. The proposed guidance document is
available for review at www.regulations.gov/docket/TSA-2023-0002. TSA
is accepting comments on the guidance along with this proposed rule.
This guidance would provide TSA's recommendations for some ways that
States can meet the requirements in Sec. 37.10(a)(1). The guidance
would not establish legally enforceable
[[Page 60069]]
requirements for a States applying for a waiver. Instead, the guidance
would provide non-binding examples of measures and practices that a
State may choose to consider as part of its overall strategy to issue
mDLs. States continue to exercise discretion to select processes not
included in the Guidance. Given the rapidly-evolving cyber threat
landscape, however, TSA may periodically update its guidance to provide
additional information regarding newly-published standards or other
sources, or recommend mitigations of newly discovered risks to the mDL
ecosystem. TSA would publish updated guidance in the Federal Register
and on the REAL ID website at www.dhs.gov/real-id/mDL, and would
provide a copy to all States that have applied for or been issued a
certificate of waiver. Updates to guidance will not impact issued
waivers or pending applications.
(iv) Appendix A to Subpart A: Requirements for State mDL Issuance
Systems
Appendix A to subpart A of the part sets forth fundamental
requirements to ensure the security and integrity of State mDL issuance
processes. More specifically, these requirements concern the creation,
issuance, use, revocation, and destruction of the State's certificate
systems and cryptographic keys. The appendix consists of requirements
in eight categories: (1) Certificate Authority Certificate Life Cycle
Policy, (2) Certificate Authority Access Management, (3) Facility,
Management, and Operational Controls, (4) Personnel Security Controls,
(5) Technical Security Controls, (6) Threat Detection, (7) Logging, and
(8) Incident Response and Recovery Plan. Adherence to these
requirements ensures that States issue mDLs in a standardized manner
with security and integrity to establish the trust necessary for
Federal acceptance for official purposes.
Certificate Authority Certificate Life Cycle Policy
requirements (appendix A, sec. 1) ensure that a State issuing an mDL
creates and manages a formal process which follows standardized
management and protections of digital certificates. These requirements
must be implemented in full compliance with the references cited in the
appendix: the CA Browser Forum Baseline Requirements for the Issuance
and Management of Publicly-Trusted Certificates, CA Browser Forum
Network and Certificate System Security Requirement, NIST Cybersecurity
Framework, NIST SP 800-53 Rev. 5, NIST SP 800-57, and NIST SP 800-53B.
Certificate Authority Access Management requirements
(appendix A, sec. 2) set forth policies and processes for States
concerning, for example, restricting access to mDL issuance systems,
policies for multi-factor authentication, defining the scope and role
of personnel, and Certificate System architecture which separates and
isolates Certificate System functions to defined security zones. These
requirements must be implemented in full compliance with the references
cited in the appendix: CA Browser Forum Network and Certificate System
Security Requirements, NIST Cybersecurity Framework, NIST 800-53 Rev.
5, NIST SP 800-63-3, and NIST SP 800-63B.
Under the requirements concerning Facility, Management,
and Operational Controls (appendix A, sec. 3), States must provide
specified controls protecting facilities where Certificate Systems
reside from unauthorized access, environmental damage, physical
breaches, and risks from foreign ownership, control, or influence.
These requirements must be implemented in full compliance with the
references cited in the appendix: NIST SP 800-53 Rev. 5.
Personnel security controls (appendix A, sec. 4) require
States to establish policies to control insider threat risks to
Certificate Systems and facilities. Such policies must include
establish screening criteria for personnel who access Certificate
Systems, post-employment access termination, updates to personnel
security policy, training, records retention schedules, among other
policies. These requirements must be implemented in full compliance
with the references cited in the appendix: NIST SP 800-53 Rev. 5 and CA
Browser Forum Baseline Requirements for the Issuance and Management of
Publicly-Trusted Certificates.
Technical security controls (appendix A, sec. 5) specify
requirements to protect Certificate System networks. In addition,
States are required to protect private cryptographic keys of Issuing
Authority Root Certificates using hardware security modules of Level 3
or higher and Document Signer private cryptographic keys in hardware
security modules of Level 2 and higher. Other controls are specified
regarding Certificate System architecture and cryptographic key
generation processes. These requirements must be implemented in full
compliance with the references cited in the appendix: CA Browser Forum
Network and Certificate System Security Requirements, CA Browser Forum
Baseline Requirements for the Issuance and Management of Publicly-
Trusted Certificates, NIST Cybersecurity Framework, NIST SP 800-53 Rev.
5, NIST SP 800-57, and NIST FIPS 140-3.
Under requirements for threat detection (appendix A, sec.
6), States must implement controls to monitor and log evolving threats
to various mDL issuance infrastructure, including digital certificate,
issuance, and support systems. These requirements must be implemented
in full compliance with the references cited in the appendix: CA
Browser Forum Network and Certificate System Security Requirements,
CISA Cybersecurity Incident & Vulnerability Response Playbooks, NIST
Cybersecurity Framework, NIST SP 800-53 Rev. 5.
Logging controls (appendix A, sec. 7) require States to
record various events concerning Certificate Systems, including the
management of cryptographic keys, digital certificate lifecycle events.
The controls set forth detailed requirements concerning specific types
of events that must be logged, as well as timeframes for maintaining
such logs. These requirements must be implemented in full compliance
with the references cited in the appendix: CA Browser Forum Baseline
Requirements for the Issuance and Management of Publicly-Trusted
Certificates, NIST Cybersecurity Framework, and NIST SP 800-53 Rev. 5.
Finally, section 8 of appendix A requires States to
implement policies to respond to and recover from security incidents.
States must act on logged events, issue alerts to relevant personnel,
respond to alerts within a specified time period, perform vulnerability
scans, among other things. In particular, States must provide written
notice to TSA at www.dhs.gov/real-id/mDL within 72 hours of discovery
of a significant cyber incident or breach that could compromise the
integrity of a Certificate System. These requirements must be
implemented in full compliance with the references cited in the
appendix: CA Browser Forum Network and Certificate System Security
Requirements, CISA Cybersecurity Incident & Vulnerability Response
Playbooks, CISA National Cyber Incident Response Plan; NIST SP 800-53
Rev. 5, NIST Cybersecurity Framework. TSA invites comment on all
aspects of the waiver application requirements and costs of compliance,
including the Waiver Application Guidance, appendix A to subpart A to
the part, the appropriateness of requiring compliance with the
specified standards and guidelines and any alternate standards that
should be considered, and other recommendations
[[Page 60070]]
that commenters believe TSA should consider.
5. Decisions on Applications for Waiver
Section 37.9(b) would establish a timeline and process for TSA to
issue decisions on a waiver application. Under this paragraph, TSA
would endeavor to provide States a decision on initial applications
within 60 days, but not longer than 90 days. TSA would provide three
types of written notice via email: approved, insufficient, or denied.
If TSA approves a State's application for a waiver, TSA would
memorialize that decision by issuing a certificate of waiver to that
State, and including the State in a list of State-mDLs approved for
Federal use, published by TSA on the REAL ID website at www.dhs.gov/real-id/mDL. A certificate of waiver would specify the date that the
waiver becomes effective, the expiration date, and any other terms and
conditions with which a State must comply, as provided under proposed
Sec. 37.9(d). A State seeking to renew its certificate beyond the
expiration date must reapply for a waiver, as provided in Sec.
37.9(e)(6).
If TSA determines that an application is insufficient, did not
respond to certain information required in Sec. 37.10(a) or (b), or
contains other deficiencies, TSA would provide an explanation of such
deficiencies and allow the State an opportunity address the
deficiencies within the timeframe specified in Sec. 37.9(b)(2). TSA
would permit States to submit multiple amended applications if
necessary, with the intent of working with States individually to
enable their mDLs to comply with the requirements of Sec. 37.10(a) and
(b).
If TSA denies an application, TSA would provide the specific
grounds for the basis of the denial and afford the State an opportunity
to submit a new application. As stated in Sec. 37.9(c), TSA would also
provide a State an opportunity to seek reconsideration of a denied
application. Instructions for seeking reconsideration would be provided
by TSA on the REAL ID website at www.dhs.gov/real-id/mDL. An adverse
decision upon reconsideration would be considered a final agency
action. As provided in Sec. 37.9(c), however, a State whose request
for reconsideration has been denied may submit a new application for a
waiver.
6. Limitations, Suspension, and Termination of Certificate of Waiver
Section 37.9(e) would set forth various restrictions on a
certificate of waiver. Specifically, in paragraph (e)(1) of this
section, TSA proposes that a certificate of waiver would be valid for a
period of three years from the date of issuance. Paragraph (e)(2)
proposes that a State must report to TSA if, after it receives a
waiver, it makes significant modifications to its mDL issuance
processes that differ in a material way from information that the State
provided in its application. If the State makes such modifications, it
would be required to report such changes 60 days before implementing
the changes. This requirement is intended to apply to changes that may
undermine the bases on which TSA granted a waiver. The reporting
requirement is not intended to apply to routine, low-level changes,
such as systems maintenance and software updates and patches. Paragraph
(e)(3) would require a State that is issued a waiver to comply with all
requirements specified in Sec. Sec. 37.51(a) and 37.9(d)(3).
Section 37.9(e)(4) sets forth processes for suspension of
certificates of waiver. As provided in proposed Sec. 37.9(e)(4)(i)(A),
TSA may suspend the validity of a certificate of waiver if TSA
determines that a State:
fails to comply with any terms and conditions (see Sec.
37.9(d)(3)) specified in the certificate of waiver;
fails to comply with reporting requirements (see Sec.
37.9(e)(2)); or
issues mDLs in a manner that is not consistent with the
information the State provided in its application for a waiver under
Sec. 37.10(a) and (b).
Before suspending a waiver for these reasons, TSA will provide such
State written notice via email that it intends to suspend its waiver,
along with an explanation of the reasons, information on how the State
may address the deficiencies, and a timeline for the State to respond
and for TSA to reply to the State, as set forth in Sec.
37.9(e)(4)(ii). DHS may withdraw the notice of suspension, request
additional information, or issue a final suspension. If TSA issues a
final suspension of a State's certificate of waiver, DHS will remove
the name of that State from the list of mDLs approved for Federal
acceptance for official purposes.
TSA additionally may suspend a State's waiver at any time upon
discovery that Federal acceptance of a State's mDL is likely to cause
imminent or serious threats to the security, privacy, or data integrity
of any Federal agency, as proposed by Sec. 37.9(e)(4)(i)(B).
Suspension would apply to all Federal agencies and would not be agency-
specific. Examples of such triggering events include cyber-attacks and
other events that cause serious harm to a State's mDL issuance systems.
If a State discovers a significant cyber incident that it believes
could compromise the integrity of its mDL issuance systems, sec. 8.6 of
appendix A to subpart A of the part would require States to provide
written notice to TSA, at www.dhs.gov/real-id/mDL, of such incident
within 72 hours of discovery. If TSA determines such suspension is
necessary, TSA will provide written notice via email to each State
whose certificate of waiver is affected, as soon as practicable after
discovery of the triggering event, providing an explanation for the
suspension, as well as an estimated timeframe for resumption of the
validity of the certificate of waiver.
It is TSA's intent to work with States to resolve the conditions
that could lead to suspension and avoid issuing a final suspension. If
TSA issues a final suspension of any State's certificate of waiver, TSA
will temporarily remove the name of that State from the list of mDLs
approved for Federal acceptance for official purposes. A State
receiving a final suspension may apply for a new certificate of waiver
by submitting a new application. Under Sec. 37.9(e)(5), TSA may
terminate a certificate of waiver for serious or egregious violations.
More specifically, TSA may terminate a waiver if TSA determines that a
State:
does not comply with REAL ID requirements in Sec.
37.51(a);
is committing an egregious violation of any terms and
conditions (see Sec. 37.9(d)(3)) specified in the certificate of
waiver and is unwilling to cure such violation;
is committing an egregious violation of reporting
requirements (see Sec. 37.9(e)(2)) and is unwilling to cure such
violation; or
provided false information in its waiver application.
Before terminating a certificate of waiver, TSA would provide
written notice via email of intent to terminate, including findings
supporting the termination and an opportunity to present information.
As specified, a State would have 7 days to respond to the notice, and
TSA would respond via email within 30 days. TSA may withdraw the notice
of termination, request additional information, or issue a final
termination. If TSA issues a final termination of a State's certificate
of waiver, TSA will remove the name of that State from the list of mDLs
approved for Federal acceptance for official purposes. A State whose
certificate of waiver has been terminated may apply for a new
certificate of waiver by submitting a new application.
[[Page 60071]]
7. Effect of a Status of Waiver on REAL ID Compliance
Section 37.9(f) clarifies that the status of a State's certificate
of waiver, including the status of an application for a waiver, has no
bearing on TSA's determination of that State's compliance or non-
compliance with any other section of this part. A certificate of waiver
that TSA has issued to a State is not a determination that the State is
in compliance with any other section in this part. Similarly, an
application for a waiver that TSA has deemed insufficient or denied, or
a certificate of waiver TSA has suspended, terminated, or expired, is
not a determination that the State is not in compliance with any other
section in this part.
8. Incorporation by Reference
TSA proposes adding to subpart A, Sec. 37.4, the following
industry standards and government guidelines that this rulemaking
proposes to incorporate by reference (discussed in detail in Part
II.D., above):
AAMVA
[cir] Mobile Driver's License (mDL) Implementation Guidelines,
Version 1.2 (Jan. 2023);
CA/Browser Forum
[cir] Baseline Requirements for the Issuance and Management of
Publicly-Trusted Certificates, Version 1.8.6 (Dec. 14, 2022),
[cir] Network and Certificate System Security Requirements, Version
1.7 (Apr. 5, 2021);
CISA
[cir] Cybersecurity Incident & Vulnerability Response Playbooks
(Nov. 2021),
[cir] National Cyber Incident Response Plan (Dec. 2016);
ISO/IEC
[cir] ISO/IEC 18013-5:2021, Personal identification--ISO-compliant
driving licence--Part 5: Mobile driving licence (mDL) application,
Edition 1 (Sept. 2021);
NIST
[cir] FIPS PUB 140-3, Security Requirements for Cryptographic
Modules (Mar. 22, 2019),
[cir] FIPS PUB 180-4, Secure Hash Standard (SHS) (Aug. 2015),
[cir] FIPS PUB 186-5, Digital Signature Standard (DSS) (Feb. 2023),
[cir] FIPS PUB 197, Advanced Encryption Standard (AES) (Nov. 26,
2001),
[cir] FIPS PUB 198-1, The Keyed-Hash Message Authentication Code
(HMAC) (July 2008),
[cir] FIPS PUB 202, SHA-3 Standard: Permutation-Based Hash and
Extendable-Output Functions (Aug. 2015),
[cir] SP 800-53, Security and Privacy Controls for Information
Systems and Organizations, Rev. 5 (Sept. 2020),
[cir] SP 800-57 Part 1, Recommendation for Key Management: Part 1--
General, Rev. 5 (May 2020),
[cir] SP 800-57 Part 2, Recommendation for Key Management: Part 2--
Best Practices for Key Management Organization, Rev. 1 (May 2019),
[cir] SP 800-57 Part 3, Recommendation for Key Management: Part 3:
Application-Specific Key Management Guidance, Rev. 1 (Jan. 2015),
[cir] SP 800-63-3, Digital Identity Guidelines, (June 2017),
[cir] SP 800-63B, Digital Identity Guidelines Authentication and
Lifecycle Management (June 2017), and
[cir] Framework for Improving Critical Infrastructure Cybersecurity
Version 1.1 (Apr. 16, 2018).
C. Impacted Stakeholders
The proposed changes would apply to State driver's licensing
agencies issuing mDLs that seek a temporary waiver from TSA for its
mDLs. The waiver would enable Federal agencies to accept such mDLs for
official purposes, defined in the REAL ID Act as accessing Federal
facilities, entering nuclear power plants, boarding federally regulated
commercial aircraft, and any other purposes that the Secretary shall
determine. Any Federal agency that chooses to accept mDLs for official
purposes must procure a reader in order to receive an individual's
identity data.
This proposed rule does not impose any requirements on:
States that do not seek a waiver for mDLs;
Non-State issuers of other forms of digital
identification; or
Federal agencies to accept mDLs.
A State seeking a waiver for Federal acceptance of its mDLs for
official purposes would be required to file with TSA a complete
application and supporting documents. An application form and
instructions would be published by TSA in a form and manner prescribed
by TSA, such as a TSA-specified website. Through the application, the
State would be required to demonstrate how its mDLs meet the
requirements for a waiver set forth in Sec. 37.10(a) and (b).
D. Use Cases Affected by This Proposed Rule
The scope of this proposed rule is confined strictly to Federal
acceptance of mDLs for official purposes, defined by the REAL ID
regulations as accessing Federal facilities, entering nuclear power
plants, and boarding federally regulated commercial aircraft. Any other
purpose is beyond the scope of this rulemaking. For example, a waiver
issued under this proposed rule would not apply to any of the
following:
mDL acceptance by Federal agencies for non-REAL ID
official uses (e.g., applying for Federal benefits);
mDL acceptance by non-Federal agencies (e.g., State
agencies, businesses, private persons);
Commercial transactions; or
Physical driver's licenses or identification cards.
Nothing in this proposed rule would require Federal agencies to
accept mDLs; each Federal agency retains the discretion to determine
its identification policies. Additionally, nothing in this proposed
rule would require a State to seek a waiver or issue mDLs.
IV. Discussion of Public Comments in the RFI
As discussed in Part II.B., above, DHS issued an RFI \60\ on April
19, 2021, and requested comments from the public to be submitted by
June 18, 2021. In addition, DHS and TSA held a virtual public meeting
on June 30, 2021, to provide an additional forum for public comments,
and extended the RFI comment period until July 30, 2021, to permit
additional comments following the public meeting.\61\ Approximately 100
persons attended the public meeting. In response to discussion at the
public meeting and comments to the RFI concerning the importance of
access to the primary industry standard referenced in the RFI, ISO/IEC
18013-5:2021, DHS facilitated public access to the standard by
publishing a notification \62\ in the Federal Register on September 16,
2021, providing instructions to the public to gain access to the
standard without cost. Approximately 30 persons requested and received
access. Additionally, DHS reopened the comment period until October 18,
2021. With the comment period extension and reopening, DHS provided a
total RFI comment period of 180 days.
---------------------------------------------------------------------------
\60\ 86 FR 20320.
\61\ 86 FR 31987.
\62\ 86 FR 51625.
---------------------------------------------------------------------------
DHS received roughly 60 comments to the RFI from a diverse group of
stakeholders, including advocacy groups representing varied interests,
individuals, State government agencies, trade associations, and
industry. An analysis of comments received showed that topics of
interest to stakeholders
[[Page 60072]]
concerned: the need for standardization and/or Federal guidance,\63\
potential benefits to the public from mDLs generally,\64\ and the
appropriateness of ISO/IEC standards as a starting point for regulatory
requirements.\65\ Input received from these stakeholders, as it relates
to the focus of this NPRM, is included and referenced throughout this
proposed rule.
---------------------------------------------------------------------------
\63\ See, e.g., comments submitted by: American Association of
Motor Vehicles Administrators; CBN Secure Technologies; DocuSign;
FaceTec; IDmachines; Maryland DHS of Transportation, Motor Vehicle
Administration; National Conference of State Legislatures; State of
Connecticut, DHS of Motor Vehicles; U.S. Travel Association.
\64\ See, e.g., comments submitted by: Applied Recognition;
Bredemarket; Hiday; IDmachines; Mothershed; Muller; State of
Connecticut, DHS of Motor Vehicles; U.S. Travel Association.
\65\ See, e.g., comments submitted by: American Association of
Motor Vehicle Administrators; American Civil Liberties Union,
Electronic Frontier Foundation, and Electronic Privacy Information
Center; Apple; Association for Convenience & Fuel Retailing; CBN
Secure Technologies; FaceTec; Florida DHS of Highway Safety and
Motor Vehicles; IDEMIA; Maryland DHS of Transportation, Motor
Vehicle Administration; National Immigration Law Center and
Undersigned Organizations; Secure Technology Alliance; State of
Connecticut, DHS of Motor Vehicles; Underwriters Laboratories;
Verifiable Credentials Policy Committee, Blockchain Advocacy
Coalition.
---------------------------------------------------------------------------
In addition to the issues already discussed, many commenters raised
concerns about potential privacy risks depending on the mode of data
transfer. For background, an mDL reader can retrieve an individual's
data under two different modes of operation: a ``device retrieval''
mode (also known as ``offline'') in which data is retrieved directly
from an mDL holder's mobile device, and a ``server retrieval'' mode
(also known as ``online'') in which the data is retrieved from a State
driver's licensing agency.\66\ In its RFI, DHS noted that it was
considering both modes of operation for Federal acceptance for official
purposes, and specifically sought comments on the security and privacy
risks, and mitigating solutions for both modes.\67\ DHS received
numerous comments from advocacy groups, industry, and States concerning
potential privacy risks posed specifically by server retrieval
mode.\68\ Chief among these concerns was the potential for mDL usage to
be tracked. TSA has observed that security and privacy protections to
mitigate such concerns are evolving and unsettled, and after careful
consideration of commenters' concerns, TSA does not believe server
retrieval mode is appropriate for Federal acceptance for official
purposes at this time. TSA will continue monitoring industry
developments and may update its conclusions in the Phase 2 rulemaking,
if warranted.
---------------------------------------------------------------------------
\66\ 86 FR 20323-24.
\67\ 86 FR 20326.
\68\ See, e.g., comments submitted by American Association of
Motor Vehicle Administrators; American Civil Liberties Union,
Electronic Frontier Foundation, and Electronic Privacy Information
Center; Association for Convenience and Fuel Retailing; Better
Identity Coalition; Electronic Privacy Information Center; IDEMIA;
National Immigration Law Center, and Undersigned Organizations; and
Verifiable Credentials Policy Committee--Blockchain Advocacy
Coalition.
---------------------------------------------------------------------------
DHS also received comments on other topics, including non-REAL ID
use cases such as commercial transactions and technical information on
various topics. As noted above, a waiver issued under the proposed rule
would not address use of an mDL for commercial transactions or any
other non-Federal purposes not covered by the REAL ID Act or
regulations. In general, mDL acceptance by Federal agencies for non-
REAL ID official purposes, mDL acceptance by non-Federal agencies, and
mDL use in commercial transactions go beyond the scope of the REAL ID
Act's official purposes. Although not the focus of this proposal, TSA
may examine some of these issues through its on-going mDL efforts, such
as mDL collaborations with industry, which could inform future
regulatory proposals. To support this interest, TSA appreciates
stakeholders' perspectives on these topics.
V. Consultation With States, Non-Governmental Organizations, and the
Department of Transportation
Under section 205 of the REAL ID Act, issuance of REAL ID
regulations must be conducted in consultation with the Secretary of
Transportation and the States. During the development of this NPRM, DHS
and TSA consulted with the Department of Transportation and other
Federal agencies with an interest in this rulemaking. DHS and TSA also
consulted with State officials via AAMVA. In addition, DHS and TSA met
with various non-governmental organizations, including civil rights and
privacy advocacy groups. Stakeholder input, informed by extensive
outreach, was critical to informing this NPRM.
VI. Regulatory Analyses
A. Economic Impact Analyses
1. Regulatory Impact Analysis Summary
Changes to Federal regulations must undergo several economic
analyses. First, E.O. 12866 of September 30, 1993 (Regulatory Planning
and Review),\69\ as supplemented by E.O. 13563 of January 18, 2011
(Improving Regulation and Regulatory Review),\70\ and amended by E.O.
14094 of April 6, 2023 (Modernizing Regulatory Review) \71\ directs
Federal agencies to propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 (RFA) \72\
requires agencies to consider the economic impact of regulatory changes
on small entities. Third, the Trade Agreement Act of 1979 \73\
prohibits agencies from setting standards that create unnecessary
obstacles to the foreign commerce of the United States. Fourth, the
Unfunded Mandates Reform Act of 1995 \74\ (UMRA) requires agencies to
prepare a written assessment of the costs, benefits, and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local, or tribal governments, in
the aggregate, or by the private sector, of $100 million or more
(adjusted for inflation) in any one year.
---------------------------------------------------------------------------
\69\ Published at 58 FR 51735 (Oct. 4, 1993).
\70\ Published at 76 FR 3821 (Jan. 21, 2011).
\71\ Published at 88 FR 21879 (April 6, 2023).
\72\ Public Law 96-354, 94 Stat. 1164 (Sept. 19, 1980) (codified
at 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA)).
\73\ Public Law 96-39, 93 Stat. 144 (July 26, 1979) (codified at
19 U.S.C. 2531-2533).
\74\ Public Law 104-4, 109 Stat. 66 (Mar. 22, 1995) (codified at
2 U.S.C. 1181-1538).
---------------------------------------------------------------------------
2. Assessments Required by E.O. 12866 and E.O. 13563
E.O. 12866 and E.O. 13563 direct agencies to assess the costs and
benefits of available regulatory alternatives and, if regulation is
necessary, select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Under E.O. 12866, as
amended by E.O. 14094, agencies must also determine whether a
regulatory action is significant.\75\ These requirements were
supplemented by E.O. 13563, which emphasizes the importance of
quantifying both costs
[[Page 60073]]
and benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
---------------------------------------------------------------------------
\75\ See section 1(b) of E.O. 14094, revising section 3(f) of
E.O. 12866. Section 3(f) of E.O. 12866 defines a ``significant
regulatory action'' as any regulatory action that is likely to
result in a rule that: (1) has an annual effect on the economy of
$200 million or more or adversely affects in a material way the
economy; a sector of the economy; productivity; competition; jobs;
the environment; public health or safety; or State, local,
territorial, or tribal governments or communities (also referred to
as economically significant); (2) creates serious inconsistency or
otherwise interferes with an action taken or planned by another
agency; (3) materially alters the budgetary impacts of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raises novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in the E.O.
---------------------------------------------------------------------------
In conducting these analyses, TSA has made the following
determinations:
(a) While TSA attempts to quantify costs where available, TSA
primarily discusses the costs and benefits of this rulemaking in
qualitative terms. At present, mDLs are part of an emerging and
evolving industry with an elevated level of uncertainty surrounding
costs and benefits. Nonetheless, TSA anticipates the rulemaking would
not result in an effect on the economy of $200 million or more in any
year of the analysis. The rulemaking would not adversely affect the
economy, interfere with actions taken or planned by other agencies, or
generally alter the budgetary impact of any entitlements.
(b) TSA has not prepared an Initial Regulatory Flexibility Analysis
(IRFA) and, pursuant to 5 U.S.C. 605(b), the Secretary certifies that
the proposed rule would not have a significant economic impact on a
substantial number of small entities. The proposed rule would only
directly regulate the fifty States, the District of Columbia, and the
five U.S. territories who voluntarily participate in the mDL waiver
process, who under the RFA are not considered small entities.
(c) TSA has determined that the NPRM imposes no significant
barriers to international trade as defined by the Trade Agreement Act
of 1979; and
(d) TSA has determined that the NPRM does not impose an unfunded
mandate on State, local, or tribal governments, such that a written
statement would be required under the UMRA, as its annual effect on the
economy does not exceed the $100 million threshold (adjusted for
inflation) in any year of the analysis.
TSA has prepared an analysis of its estimated costs and benefits,
summarized in the following paragraphs, and in the OMB Circular A-4
Accounting Statement. When estimating the cost of a rulemaking,
agencies typically estimate future expected costs imposed by a
regulation over a period of analysis. For this proposed rule's period
of analysis, TSA uses a 10-year period of analysis to estimate costs.
This proposed rule would establish a temporary waiver process that
would permit Federal agencies to accept mDLs for official purposes, as
defined in the REAL ID Act, when full enforcement of the REAL ID Act
and regulations begins on May 7, 2025. Federal agencies would be able
to accept mDLs for official purposes on an interim basis, provided
that: (1) the mDL holder has been issued a valid and unexpired REAL ID-
compliant physical driver's license or identification card from the
same State that issued the mDL; (2) TSA has determined the issuing
State to be REAL ID-compliant; and (3) TSA has issued a waiver to the
State. Federal agencies that opt to accept mDLs for official purposes
must also procure a mDL reader in order to validate the identity of the
mDL holder. As part of the application process for the mDL waiver,
States would be required to submit to TSA an application, including
supporting data, and other documentation necessary to establish that
their mDLs meet specified criteria concerning security, privacy, and
interoperability. The criteria concerning security, privacy, and
interoperability would not change absent a subsequent rulemaking. When
REAL ID Act and regulations enforcement begins on May 7, 2025, Federal
agencies will be prohibited from accepting non-compliant driver's
licenses and identification cards, including both physical cards and
mDLs, for official purposes.
In the following paragraph TSA summarizes the estimated costs of
the proposed rule on the affected parties: States, TSA, mDL users, and
relying parties (Federal agencies that voluntarily choose to accept
mDLs for official purposes). TSA has also identified other non-
quantified impacts to affected parties. As Table 1 displays, TSA
estimates the 10-year total cost of the proposed rule to be $826.8
million undiscounted, $695.6 million discounted at 3 percent, and
$562.0 million discounted at 7 percent. The total cost to States
comprises approximately 98 percent of the total quantified costs of the
proposed rule.
[[Page 60074]]
[GRAPHIC] [TIFF OMITTED] TP30AU23.006
States incur costs to familiarize themselves with the requirements
of the proposed rule, purchase access to an industry standard, submit
their mDL waiver application, submit an mDL waiver reapplication, and
comply with mDL application criteria requirements. As displayed in
Table 2, the 10-year cost to States is $813.7 million undiscounted,
$684.2 million discounted at 3 percent, and $552.4 million discounted
at 7 percent.
[[Page 60075]]
[GRAPHIC] [TIFF OMITTED] TP30AU23.007
TSA incurs costs associated with reviewing mDL waiver applications
and mDL waiver renewals, purchasing access to industry standards,
procuring mDL readers, and mDL training. As displayed in Table 3, the
10-year cost to TSA is $9.84 million undiscounted, $8.62 million
discounted at 3 percent, and $7.35 million discounted at 7 percent.
[[Page 60076]]
[GRAPHIC] [TIFF OMITTED] TP30AU23.008
Relying parties represent Federal agencies that elect to accept a
mDLs for official purposes. Per the proposed rule, relying parties
would be required to use a mDL reader to retrieve and validate mDL
data. As a result, relying parties would incur costs to procure mDL
readers should they voluntarily choose to accept mDLs for official
purposes. TSA is also considered a relying party, but due to the
particular impact to TSA related to the requirement for REAL ID related
to boarding federally regulated commercial aircraft, those impacts are
discussed separately. As displayed in Table 4, the 10-year cost to
relying parties is $3.29 million undiscounted, $2.74 million discounted
at 3 percent, and $2.19 million discounted at 7 percent.
[[Page 60077]]
[GRAPHIC] [TIFF OMITTED] TP30AU23.009
TSA has also identified other non-quantified impacts to the
affected entities. States may incur costs to: monitor and study mDL
technology as it evolves; resolve the underlying issues that could lead
to a suspension or termination of a mDL waiver; report serious threats
to security, privacy, or data integrity; report material changes to mDL
issuance processes; remove conflicts of interest with a third-party
auditor; and request reconsideration of a denied mDL waiver
application. TSA may incur costs to: investigate circumstances that
could lead to suspension or termination of a State's mDL waiver;
provide notice to States, relying parties, and the public related to
mDL waiver suspensions or terminations; develop an IT solution that
maintains an up-to-date list of States with valid mDL waivers; and
resolve a request for reconsideration of a denied mDL waiver
application. mDL users may incur costs with additional application
requirements to obtain a mDL. Relying parties may incur costs to
resolve any security or privacy issue with the mDL reader; report
serious threats to security, privacy, or data integrity; verifying the
list of States with valid mDL waivers; train personnel to verify mDLs;
and update the public on identification policies.
TSA believes that States implementing a mDL, absent the rulemaking,
would still comply with the AAMVA mDL Implementation Guidelines
(hereafter referred to as the ``AAMVA Guidelines''). Many of the
requirements of the mDL application criteria are already contained
within the AAMVA Guidelines. This includes mDL application criteria
concerning: data encryption; authentication; device identification
keys; user identity verification; applicant presentation; REAL ID
compliant physical card; data record; records retention; privacy; and
interoperability. Only the mDL application criteria related to
escalated review and infrastructure security/issuance are not contained
with the AAMVA Guidelines. Operating under the assumption that States
interested in mDLs would comply with the AAMVA Guidelines, TSA assumes
the application criteria that overlap with the AAMVA Guidelines would
otherwise be incurred and thus not included as a cost of the proposed
rule. However, TSA requests comment on this assumption and any cost
information associated with the mDL application criteria.
This proposed rule would establish mDL application criteria that
would serve as an interim mDL standard for those States choosing to
issue mDLs that can be accepted for official purposes. TSA's
application criteria may help guide States in their development of mDL
technologies which would provide a shared standard that could
potentially improve efficiency while also promoting higher security,
privacy, and interoperability safeguards.
The application criteria set requirements establishing security and
privacy protections to safeguard an mDL holder's identity data. They
also set interoperability requirements to ensure secure transactions
with Federal agencies. States, via their mDL waiver application, must
establish that their mDLs meet the application criteria thus helping to
ensure adequate security and privacy protections are in place. Absent
the proposed rule, individual States may choose insufficient security
and privacy safeguards for mDL technologies that fail to meet the
intended security purposes of REAL ID and the privacy needs of users.
[[Page 60078]]
mDLs themselves may provide additional security benefits by
offering a more secure verification of an individual's identity and
authentication of an individual's credential compared to physical
cards. In general, mDLs use a cryptographic protocol that ensures the
mDL was obtained through a trusted authority, such as a State's
Department of Motor Vehicles.\76\ This same protocol may prevent the
alteration of mDLs and reduce the threat of counterfeit
credentials.\77\ mDLs also offer increased protection of personal
identifiers by preventing over-collection of information. mDLs may
possess the ability to share only those attributes necessary to
validate the user identity with the relying party.\78\ When using a
physical card, the user has no ability to limit the information that is
shared, regardless of the amount of information required for
verification.
---------------------------------------------------------------------------
\76\ Secure Technology Alliance's Mobile Driver's License
Workshop Showcases mDLs Role in the Future of Identification.
December 14, 2021. https://www.securetechalliance.org/secure-technology-alliances-mobile-drivers-license-workshop-showcases-mdls-role-in-the-future-of-identification/.
\77\ Ibid.
\78\ Mobile ID can bring both convenience and citizen privacy.
July 15, 2021. https://www.biometricupdate.com/202107/mobile-id-can-bring-both-convenience-and-citizen-privacy.
---------------------------------------------------------------------------
TSA's mDL application criteria can help guide State development and
investment in mDLs. The mDL application criteria would foster a level
of standardization that would potentially reduce complexity by limiting
individual State nuances while also ensuring interoperability across
States and with the Federal Government. This increased interoperability
reduces implementation costs by limiting the need for different
protocols or mechanisms to accept mDLs from individual States.
Identification of mDL application criteria that can be used across
States would result in efficiency gains through multiple States
pursuing similar objectives, goals, and solutions. Establishing
application criteria early in the technology development process has
the potential to align development activities across disparate efforts.
Early guidance might also reduce re-work or modifications required in
future regulations thus saving time and resources redesigning systems
and functionality to adhere to subsequent Federal guidelines.
Furthermore, the mDL application criteria may potentially encourage
investment in mDLs and the pooling of resources to develop mDL
technology capabilities across States and address common concerns or
issues. Such collaboration, or unity of effort, can help spread
research and development risk and reduce inefficiencies that may arise
from States working independently. Greater clarity over mDL
regulations, with the proposed rule part of an incremental, multi-
phased rulemaking approach, may spur new entrants (States and
technology companies) into the mDL ecosystem.
The proposed rule, would allow Federal agencies to continue to
accept mDLs for official purposes when REAL ID enforcement begins. This
would avoid the sudden halting of mDL acceptance when REAL ID
enforcement begins which would reverse trends in providing for a more
customer-friendly screening experience. The experience and insight
learned through the mDL waiver process could also be used to inform
future standards and rulemaking.
3. OMB A-4 Statement
The OMB A-4 Accounting Statement presents annualized costs and
qualitative benefits of the proposed rule.
BILLING CODE 9110-05-P
[[Page 60079]]
[GRAPHIC] [TIFF OMITTED] TP30AU23.010
BILLING CODE 9110-05-C
4. Alternatives Considered
In addition to the proposed rule, or the ``preferred alternative'',
TSA also considered four alternative regulatory options.
The first alternative (Alternative 1) represents the status quo, or
no change relative to the proposed creation of a mDL waiver. This
represents a scenario without a rulemaking or a waiver process to
enable mDL acceptance for official Federal purposes. Under this
alternative, States would continue to
[[Page 60080]]
develop mDLs in a less structured manner while waiting for relevant
guiding standards to be published which would likely result in
dissimilar mDL implementation and technology characteristics. This
alternative was not selected because it does not address the market
failures associated with a lack of common standards, such as increased
complexity of mDL use across States, and may result in larger costs in
the long run when formal mDL standards are finalized.
The second alternative (Alternative 2) features the same
requirements of the proposed rule, including an mDL waiver process, but
allows for an auto acceptance of certain State waivers that are ``low-
risk.'' TSA would identify mDLs from States who have fulfilled the
proposed rule's minimum requirements prior to applying for the waiver
and have sufficiently demonstrated (e.g., via TSA initiative or recent
evaluation by a trusted party) to TSA that their mDL systems present
adequate interoperability and low security and privacy risk. The auto
acceptance provision would allow Federal agencies to immediately (or
conditionally) accept those ``low-risk'' mDLs for official purposes
pending final approval of the respective State mDL waiver applications.
However, TSA rejects this alternative because TSA believes the emerging
technology underlying mDLs is insufficiently established to accept the
security, privacy, and interoperability of States' mDL systems without
an evaluation by TSA or another trusted party. In addition, a similar
presumptive eligibility process is not available for other aspects of
REAL ID and such an action would not reduce the burden on States or TSA
to comply with any framework DHS develops.
Under the third alternative (Alternative 3), TSA would establish
more comprehensive requirements than those in the proposed rule to
ensure mDLs comply with the REAL ID Act. States would be required to
adopt the more comprehensive requirement to issue valid mDLs that can
be accepted for official purposes. These technical requirements could
include specific standards related to mDL issuance, provisioning,
verification, readers, privacy, and other security measures. TSA
rejects this alternative because promulgating more comprehensive
requirements for mDLs is premature, as both industry standards and
technology used by States are still evolving. Restrictive requirements
could stifle innovation by forcing all stakeholders to pivot toward
compliance. This could impede TSA from identifying and implementing a
more efficient regulatory approach in the future.
Finally, under the fourth alternative (Alternative 4), instead of a
waiver process, TSA would first establish minimum requirements for
issuing REAL ID compliant mDLs before TSA later sets more comprehensive
requirements as additional guidance and standards become available in
the mid- and long-term. The interim minimum requirements would consist
of the same requirements for security, privacy, and interoperability,
based on nineteen industry and government standards and guidelines,
described in the proposed rule to guide waiver applications.
Alternative 4 effectively would codify standards that may become
obsolete in the near future, as existing standards are revised,
emerging standards publish, and new cyber threats proliferate. TSA
rejects this alternative because establishing minimum requirements that
may become obsolete in the near future may limit the ability for TSA to
revise standards quickly and would increase the security and privacy
risks of accepting mDLs. In addition, costs under Alternative 4 would
roughly be similar to costs under the proposed rule, as both options
would require audits and other compliance costs. TSA requests comments
as to whether finalizing these minimum requirements for REAL ID
compliance would be preferable to the temporary waiver process
described in this proposal. Specifically, TSA seeks comment on whether
Alternative 4 would realize higher benefits, either quantitative or
qualitative, for States and the public, than the waiver process
described in this proposal. TSA also seeks comment on costs to the
affected entities to comply with the minimum requirements.
5. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA) of 1980, as amended,\79\ was
enacted by Congress to ensure that small entities (small businesses,
small not-for-profit organizations, and small governmental
jurisdictions) would not be unnecessarily or disproportionately
burdened by Federal regulations. Section 605 of the RFA allows an
agency to certify a rule in lieu of preparing an analysis if the
regulations are not expected to have a significant economic impact on a
substantial number of small entities.
---------------------------------------------------------------------------
\79\ Public Law 96-354, 94 Stat. 1164 (Sept. 19, 1980) (codified
at 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA)).
---------------------------------------------------------------------------
In accordance with the RFA, TSA has not prepared a Regulatory
Flexibility Analysis and pursuant to 5 U.S.C. 605(b), the Secretary
certifies that the proposed rule would not have a significant economic
impact on a substantial number of small entities. The proposed rule
would directly impact States that voluntarily choose to apply for a
waiver that would permit mDLs issued by those States to be accepted for
official Federal purposes.
6. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. The Trade Agreement Act does not consider legitimate domestic
objectives, such as essential security, as unnecessary obstacles. The
statute also requires that international standards be considered and,
where appropriate, that they be the basis for U.S. standards. TSA has
assessed the potential effect of this proposed rule and has determined
this rule would not have an adverse impact on international trade.
7. Unfunded Mandates Reform Act Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under sec. 202 of the UMRA, TSA
generally must prepare a written Statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local, and tribal governments in
the aggregate or by the private sector of $100 million or more
(adjusted for inflation) in any one year.
Before TSA promulgates a rule for which a written statement is
required, sec. 205 of the UMRA generally requires TSA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rulemaking. The provisions of sec. 205
do not apply when they are inconsistent with applicable law. Moreover,
sec. 205 allows TSA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
final rule provides an explanation why that alternative was not
adopted. Before TSA establishes any regulatory requirements that may
[[Page 60081]]
significantly or uniquely affect small governments, including tribal
governments, it must develop under sec. 203 of the UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
TSA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
When adjusted for inflation, the threshold for expenditures becomes
$177.1 million in 2022 dollars. TSA has determined that this proposed
rule does not contain a Federal mandate that may result in expenditures
that exceed that amount either for State, local, and tribal governments
in the aggregate in any one year. TSA will publish a final analysis,
including its response to public comments, when it publishes a final
rule.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that TSA consider the impact of paperwork and other
information collection burdens imposed on the public. Under the
provisions of PRA section 3507(d), DHS must obtain approval from the
Office of Management and Budget (OMB) for each collection of
information it conducts, sponsors, or requires through regulations.
This proposed rule would call for a collection of information under the
PRA. Accordingly, TSA has submitted to OMB the proposed rule and this
analysis, including the sections relating to collections of
information. See 5 CFR 1320.11(a). As defined in 5 CFR 1320.3(c),
``collection of information'' includes reporting, recordkeeping,
monitoring, posting, labeling, and other similar actions. This section
provides the description of the information collection and of those who
must collect the information as well as an estimate of the total annual
time burden.
The proposed rule establishes a process for States to apply to TSA
for a temporary waiver. Such a request is voluntary but would require
the submission of an mDL waiver application, resubmission of an mDL
waiver application deemed insufficient or denied, and reapplication for
a mDL waiver when the term of the mDL waiver expires. All of these
items would be considered new information collections.
TSA uses the current State of mDL implementation to inform its
estimate on how many State entities would request a mDL waiver during
the period of analysis.\80\ All 50 States, the District of Columbia,
and five territories (collectively referred to as States hereafter) are
eligible to apply for a mDL waiver as discussed in the proposed rule.
However, DHS assumes that not all States would apply for the mDL
waiver. TSA assumes 15 States would apply for a mDL waiver in Year 1 of
the analysis, 10 States in Year 2, and five States in Year 3.\81\
---------------------------------------------------------------------------
\80\ Eight States currently provide mDLs. Roughly 20 States have
taken steps towards mDL implementation, including seven States
participating in the TSA mobile ID evaluation program without a
current mDL solution.
\81\ Each State would submit one mDL waiver application.
---------------------------------------------------------------------------
Following the State submission of its mDL waiver application, TSA
determines if the application is approved, insufficient, or denied.
States are allowed to amend an insufficient or denied mDL waiver
application and resubmit to TSA review.
TSA assumes that all submissions would initially be deemed
insufficient due to the mDL waiver criteria being new and with mDLs an
emerging technology. Nonetheless, TSA intends to work individually with
interested States to meet the mDL criteria to maximize the likelihood
of receiving a waiver. Based on these assumptions, TSA estimates all
initial mDL waiver applications would be deemed insufficient and that
90 percent of States would resubmit their mDL waiver applications.\82\
---------------------------------------------------------------------------
\82\ DHS assumes that 10 percent of applications deemed
insufficient would no longer pursue a mDL waiver due to the level of
effort involved to become sufficient and wait until the mDL
environment is more fully developed.
---------------------------------------------------------------------------
A State's mDL waivers would be valid for three years. Therefore,
States granted a mDL waiver in Year 1 would need to reapply in Year 4
which is beyond the scope of this particular information collection.
TSA technology subject matter experts estimate that the mDL waiver
application would take, on average, 20 hours to complete. TSA also
estimates that mDL waiver resubmissions would take 25 percent of the
initial mDL waiver application time which equates to 5 hours.\83\
Finally, TSA estimates that mDL waiver reapplications would take 75
percent of the initial mDL waiver application time which equates to 15
hours.\84\
---------------------------------------------------------------------------
\83\ mDL Waiver Resubmission burden = 20 hours [initial mDL
waiver application burden] x 0.25 = 5 hours.
\84\ mDL Waiver Renewal burden = 20 hours [initial mDL waiver
application burden] x (1 - 0.25) = 15 hours.
---------------------------------------------------------------------------
These hour burden estimates are combined with the number of
collection activities to calculate the total and average time burden
associated with the proposed rule. TSA estimates the proposed rule's
total three-year burden for mDL waiver applications, mDL waiver
resubmissions, and mDL waiver reapplications is 57 responses and 735
hours. TSA estimates an average yearly burden of 19 responses and 245
hours. Details of the calculation can be found in Table 6.
[[Page 60082]]
[GRAPHIC] [TIFF OMITTED] TP30AU23.011
In addition, States TSA incur costs associated with independent
entity audits of their mDL infrastructure. DHS estimates this cost at
$32,500 per submission.\85\ States would incur this cost for the
initial mDL waiver application and mDL waiver reapplication. As there
are no reapplications anticipated for this information collection
request, TSA multiplies the annual average number of mDL waiver
applications from Table 6 above (10) and the independent entity audit
cost of $32,500 for a total mDL waiver application cost of $325,000.
---------------------------------------------------------------------------
\85\ TSA technology subject matter experts assume estimate a
range of audit costs between $5,000 and $60,000. DHS uses the
midpoint of this range as the point estimate.
---------------------------------------------------------------------------
C. Federalism (E.O. 13132)
A rule has implications for federalism under E.O. 13132 of August
6, 1999 (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. TSA analyzed this
proposed rule under this order and determined it does not have these
implications for federalism.
D. Customer Service (E.O. 14058)
E.O. 14058 of December 13, 2021 (Transforming Federal Customer
Experience and Service Delivery to Rebuild Trust in Government), is
focused on enhancing the of technology ``to modernize Government and
implement services that are simple to use, accessible, equitable,
protective, transparent, and responsive for all people of the United
States.'' The Secretary of Homeland Security has specifically committed
to testing the use of innovative technologies at airport security
checkpoints to reduce passenger wait times. This proposed rule supports
this commitment. Using mDLs to establish identity at airport security
checkpoints is intended to provide the public with increased
convenience, security, privacy, and health benefits from ``contact-
free'' identity verification. In 2022, DHS began a limited initiative
to evaluate some mDLs to determine the viability of using an mDLs as a
form of identification at an airport security checkpoint.
E. Energy Impact Analysis (E.O. 13211)
TSA analyzed this proposed rule under E.O. 13211 of May 18, 2001
(Actions Concerning Regulations That Significantly Affected Energy
Supply, Distribution or Use), and determined that it is not a
``significant energy action'' under that E.O. and is not likely to have
a significant adverse effect on the supply, distribution, or use of
energy. Therefore, this rulemaking does not require a Statement of
Energy Effects.
F. Environmental Analysis
TSA 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). See 40 CFR
1507.3(b)(2)(ii), 1508.4. DHS has determined that this action will not
have a significant effect on the human environment. This action is
covered by categorical exclusion number A3(d) in DHS Management
Directive 023-01 Rev. 01.
VII. Specific Questions
While commenters are asked to comment on this proposal in its
entirety, TSA specifically requests comments in response to the
following questions. Commenters are encouraged to address issues that
may not be discussed below based upon their knowledge of the issues and
implications. In providing your comments, please follow the
instructions in the Commenter Instructions section above.
1. Applications for waivers. Provide comments on:
a. The estimated cost and time required for States to complete and
submit applications for waivers, including the initial mDL waiver
application, resubmission, and reapplication;
b. The estimated number of States and territories that would submit
a waiver application, and when those States and territories would
submit a waiver application;
c. The percentage of States that would receive a decision of
approved, insufficient, or denied;
d. The percentage of States receiving a decision of insufficient
that would resubmit an amended application; and
e. The assumption that TSA would approve all resubmitted
applications.
2. Application Criteria. Provide comments on:
a. The costs States may incur to demonstrate compliance with the
criteria to apply for a waiver as required by proposed Sec. 37.10(a)
and appendix A
[[Page 60083]]
to subpart A of the part, including the costs and availability of any
professional services required;
b. The appropriateness of the application requirements set forth in
proposed Sec. 37.10(a) and appendix A to subpart A of the part;
c. The impact that the Initial Public Versions of Revision 4 of
NIST SP 800-63, NIST SP 800-63A, NIST SP 800-63B, and NIST SP 800-63C
may have on the requirements set forth in proposed Sec. 37.10(a) and
appendix A to subpart A of the part, including States' ability to
demonstrate compliance with the criteria to apply for a waiver as
required by proposed Sec. 37.10(a) and appendix A to subpart A of the
part.
3. Audit report. Provide comments on requiring States to submit a
report of an audit as required in proposed Sec. 37.10(b), which report
would require verifying the materials that a State would provide in its
application for a waiver as required by proposed Sec. 37.10(a),
including:
a. The appropriateness of requiring an audit to be conducted by a
recognized independent entity;
b. The appropriateness of requiring an auditor to hold an active
Certified Public Accountant license in the State that is seeking a
waiver;
c. The appropriateness of requiring an auditor to be experienced
with information systems security audits, including whether such
auditors should have different or additional experience;
d. The appropriateness of requiring the auditor to be accredited by
the State seeking a waiver;
e. The appropriateness of requiring an auditor to hold a current
and active American Institute of Certified Public Accountants (AICPA)
Certified Information Technology Professional (CITP) credential or
ISACA (F/K/A Information Systems Audit and Control Association)
Certified Information System Auditor certification;
f. The availability of auditors who meet the criteria specified in
proposed Sec. 37.10(b)(1);
g. The estimated cost and time incurred by States to obtain a
report by the auditor; and
h. Any other considerations relating to auditing.
4. DHS Mobile Driver's License Waiver Application Guidance. Provide
comments on the ``Mobile Driver's License Waiver Application
Guidance,'' available at www.dhs.gov/real-id/mDL.
5. Waiver validity period. DHS is considering a three-year validity
period for waivers. Provide comments on the appropriateness of a three-
year validity period for waivers and on alternate validity periods.
6. Mobile driver's license readers. Provide comment on the costs to
procure mDL reader equipment, estimated reader usage by Federal
agencies, States, and businesses, and the functional form of such
reader equipment.
7. mDL acceptance. Provide comment on the number of Federal
agencies other than TSA DHS and DHS component agencies that voluntarily
choose to accept mDLs for official purposes for identity verification,
including:
a. The number and types of locations where mDLs will be accepted;
and
b. The number of individuals that are expected to obtain mDLs.
8. Costs to individuals. Provide comment on costs incurred by mDL
users, including costs associated with obtaining an mDL.
9. TSA invites public comments on Alternative 4, including, but not
limited to, costs to the affected entities to comply with the minimum
standards, benefits of the alternative compared to the preferred
alternative, and risks to security and privacy of accepting mDLs based
on the minimum requirements.
List of Subjects in 6 CFR Part 37
Document security, Driver's licenses, Identification cards,
Incorporation by reference, Licensing and registration, Motor vehicle
administrations, Motor vehicle safety, Motor vehicles, Personally
identifiable information, Physical security, Privacy, Reporting and
recordkeeping requirements, Security measures.
The Proposed Amendments
For the reasons set forth in the preamble, the Transportation
Security Administration is proposing to amend part 37 of title 6, Code
of Federal Regulations, to read 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. Amend Sec. 37.3 by adding the definitions for ``A Root Certificate
Authority,'' ``Administration,'' ``Certificate Authority,''
``Certificate Management System,'' ``Certificate Policy,''
``Certificate System,'' ``Critical Security Event,'' ``Delegated Third
Party,'' ``Delegated Third Party System,'' ``Denial of Service,''
``Digital Certificates,'' ``Digital Signatures,'' ``Distributed Denial
of Service,'' ``Execution Environment,'' ``Front End System,''
``Hardware security module,'' ``High Security Zone,'' ``Identity
Proofing,'' ``Identity verification,'' ``Internal Support System,''
``Issuing Authority,'' ``Issuing Authority Certificate Authority,''
``Issuing System,'' ``mDL,'' ``Mobile driver's license,'' ``Mobile
identification card,'' ``Multi-Factor Authentication,'' ``Online
Certificate Status Protocol,'' ``Penetration Test,'' ``Public Key
Infrastructure,'' ``Rich Execution Environment,'' ``Root Certificate
Authority System,'' ``Secure Element,'' ``Secure hardware,'' ``Secure
Key Storage Device,'' ``Secure Zone,'' ``Security Support System,''
``Sole Control,'' ``State Root Certificate,'' ``System,'' ``Trusted
Execution Environment,'' ``Trusted Role,'' ``Virtual Local Area
Network,'' ``Vulnerability,'' ``Vulnerability scanning,'' and ``Zone''
in alphabetical order to read as follows:
Sec. 37.3 Definitions.
* * * * *
A Root Certificate Authority is the State Certificate Authority
whose public encryption key establishes the basis of trust for all
other Digital Certificates issued by a State.
Administration means management actions performed on Certificate
Systems by a person in a Trusted Role.
* * * * *
Certificate Authority means an issuer of Digital Certificates that
are used to certify the identity of parties in a digital transaction.
Certificate Management System means a system used by a State or
Delegated Third Party to process, approve issuance of, or store Digital
Certificates or Digital Certificate status information, including the
database, database server, and storage.
Certificate Policy means the set of rules and documents that forms
a State's governance framework in which Digital Certificates,
Certificate Systems, and cryptographic keys are created, issued,
managed, and used.
Certificate System means the system used by a State or Delegated
Third Party to provide services related to Public Key Infrastructure
for digital identities.
* * * * *
Critical Security Event means detection of an event, a set of
circumstances, or anomalous activity that could lead to a circumvention
of a Zone's security controls or a compromise of a Certificate System's
integrity, including excessive login attempts, attempts to access
prohibited resources, Denial of Service or Distributed Denial of
Service attacks,
[[Page 60084]]
attacker reconnaissance, excessive traffic at unusual hours, signs of
unauthorized access, system intrusion, or an actual compromise of
component integrity.
* * * * *
Delegated Third Party means a natural person or legal entity that
is not the State and that operates any part of a Certificate System
under the State's legal authority.
Delegated Third Party System means any part of a Certificate System
used by a Delegated Third Party while performing the functions
delegated to it by the State.
Denial of Service means the prevention of authorized access to
resources or the delaying of time-critical operations.
* * * * *
Digital Certificates identify the parties involved in an electronic
transaction, and contain information necessary to validate Digital
Signatures.
Digital Signatures are mathematical algorithms used to validate the
authenticity and integrity of a message.
Distributed Denial of Service means a Denial of Service attack
where numerous hosts perform the attack.
* * * * *
Execution Environment means a place within a device processer where
active application's code is processed.
* * * * *
Front End System means a system with a public IP address, including
a web server, mail server, DNS server, jump host, or authentication
server.
* * * * *
Hardware security module means a physical computing device that
safeguards and manages cryptographic keys and provides cryptographic
processing.
High Security Zone means a physical location where a State's or
Delegated Third Party's private key or cryptographic hardware is
located.
* * * * *
Identity Proofing refers to a series of steps that the State
executes to prove the identity of a person.
Identity verification is the confirmation that identity data
belongs to its purported holder.
* * * * *
Internal Support System means a system which operates on a State's
internal network and communicates with the Certificate System to
provide business services related to mDL management.
Issuing Authority means the State that issues a mobile driver's
license or mobile identification card.
Issuing Authority Certificate Authority means a Certificate
Authority operated by or on behalf of an Issuing Authority or a State's
Root Certificate Authority.
Issuing System means a system used to sign mDLs, digital
certificates, mobile security objects, or validity status information.
* * * * *
mDL means mobile driver's licenses and mobile identification cards,
collectively.
Mobile driver's license means a driver's license that is stored on
a mobile electronic device and read electronically.
Mobile identification card means an identification card, issued by
a State, that is stored on a mobile electronic device and read
electronically.
Multi-Factor Authentication means an authentication mechanism
consisting of two or more of the following independent categories of
credentials (i.e., factors) to verify the user's identity for a login
or other transaction means something you know (knowledge factor),
something you have (possession factor), and something you are
(inherence factor).
* * * * *
Online Certificate Status Protocol means an online protocol used to
determine the status of a Digital Certificate.
* * * * *
Penetration Test means a process that identifies and attempts to
exploit vulnerabilities in systems through the active use of known
attack techniques, including the combination of different types of
exploits, with a goal of breaking through layers of defenses and
reporting on unpatched vulnerabilities and system weaknesses.
* * * * *
Public Key Infrastructure means a structure where a Certificate
Authority uses Digital Certificates for issuing, renewing, and revoking
digital credentials.
* * * * *
Rich Execution Environment, also known as a ``normal execution
environment,'' means the area inside a device processor that runs an
operating system.
Root Certificate Authority System means a system used to create a
State's Root Certificate or to generate, store, or sign with the
private key associated with a State Root Certificate.
* * * * *
Secure Element means a tamper-resistant secure hardware component
which is used in a device to provide the security, confidentiality, and
multiple application environment required to support various business
models.
Secure hardware means hardware provided on a mobile device for key
management and trusted computation such as a Secure Element (SE) or
Trusted Execution Environment.
Secure Key Storage Device means a device certified as meeting the
specified FIPS 140-3 Level 2 overall, Level 3 physical, or Common
Criteria (EAL 4+).
Secure Zone means an area (physical or logical) protected by
physical and logical controls that appropriately protect the
confidentiality, integrity, and availability of Certificate Systems.
Security Support System means a system used to provide security
support functions, which may include authentication, network boundary
control, audit logging, audit log reduction and analysis, vulnerability
scanning, and intrusion detection (host-based intrusion detection,
network-based intrusion detection).
* * * * *
Sole Control means a condition in which logical and physical
controls are in place to ensure the Administration of a Certificate
System can only be performed by a State or Delegated Third Party.
* * * * *
State Root Certificate means a public Digital Certificate of a Root
Certificate Authority operated by or on behalf of a State.
System means one or more pieces of equipment or software that
stores, transforms, or communicates data.
* * * * *
Trusted Execution Environment means an Execution Environment that
runs alongside but isolated from a Rich Execution Environment and has
the security capabilities necessary to protect designated applications.
Trusted Role means an employee or contractor of a State or
Delegated Third Party who has authorized access to or control over a
Secure Zone or High Security Zone.
* * * * *
Virtual Local Area Network means a broadcast domain that is
partitioned and isolated within a network.
Vulnerability means a weakness in an information system, system
security procedures, internal controls, or implementation that could be
exploited or triggered by a threat source.
Vulnerability scanning means a technique used to identify host
attributes and associated Vulnerabilities.
Zone means a subset of Certificate Systems created by the logical
or physical partitioning of systems from other Certificate Systems.
[[Page 60085]]
0
3. Amend Sec. 37.4 by adding paragraphs (a)(2), (b)(2), and (d)
through (f) to read as follows:
Sec. 37.4 Incorporation by reference.
* * * * *
(a) * * *
(2) ISO/IEC 18013-5:2021, Personal identification--ISO-compliant
driving license--Part 5: Mobile driving license (mDL) application,
Edition 1 (September 2021); IBR approved for Sec. Sec. 37.8; 37.10(a);
appendix A to this subpart.
(b) * * *
(2) Mobile Driver's License (mDL) Implementation Guidelines,
Version 1.2 (January 2023); IBR approved for Sec. 37.10(a); appendix A
to this subpart.
* * * * *
(d) Certification Authority Browser Forum (CA/Browser Forum), 815
Eddy St, San Francisco, CA 94109, (415) 436-9333,
[email protected], www.cabforum.org.
(1) Baseline Requirements for the Issuance and Management of
Publicly[hyphen]Trusted Certificates, Version 1.8.6 (December 14,
2022), https://cabforum.org/wp-content/uploads/CA-Browser-Forum-BR-1.8.6.pdf; IBR approved for appendix A to this subpart.
(2) Network and Certificate System Security Requirements, Version
1.7 (April 5, 2021), https://cabforum.org/wp-content/uploads/CA-Browser-Forum-Network-Security-Guidelines-v1.7.pdf; IBR approved for
appendix A to this subpart A.
(e) Cybersecurity and Infrastructure Security Agency, Mail Stop
0380, Department of Homeland Security, 245 Murray Lane, Washington, DC
20528-0380, [email protected], (888) 282-0870, www.cisa.gov.
(1) Cybersecurity Incident & Vulnerability Response Playbooks
(November 2021), https://www.cisa.gov/sites/default/files/publications/Federal_Government_Cybersecurity_Incident_and_Vulnerability_Response_Playbooks_508C.pdf; IBR approved for appendix A to this subpart.
(2) National Cyber Incident Response Plan (December 2016),
Department of Homeland Security, https://www.cisa.gov/uscert/sites/default/files/ncirp/National_Cyber_Incident_Response_Plan.pdf; IBR
approved for appendix A to this subpart.
(f) National Institute of Standards and Technology, 100 Bureau
Drive, Gaithersburg, MD 20899, (301) 975-2000, www.nist.gov.
(1) Federal Information Processing Standard (FIPS) Publication
(PUB) 140-3, Security Requirements for Cryptographic Modules (March 22,
2019), https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.140-3.pdf; IBR
approved for appendix A to this subpart.
(2) FIPS PUB 180-4, Secure Hash Standard (SHS) (August 2015),
https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.180-4.pdf; IBR
approved for Sec. 37.10(a).
(3) FIPS PUB 186-5, Digital Signature Standard (DSS) (Feb. 2023),
https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.186-5.pdf; IBR
approved for Sec. 37.10(a).
(4) FIPS PUB 197, Advanced Encryption Standard (AES) (Nov. 26,
2001), https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197.pdf; IBR
approved for Sec. 37.10(a).
(5) FIPS PUB 198-1, The Keyed-Hash Message Authentication Code
(HMAC) (July 2008), https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.198-1.pdf; IBR approved for Sec. 37.10(a).
(6) FIPS PUB 202, SHA-3 Standard: Permutation-Based Hash and
Extendable-Output Functions (August 2015), https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.202.pdf; IBR approved for Sec. 37.10(a).
(7) Special Publication (SP) 800-53, Security and Privacy Controls
for Information Systems and Organizations, Rev. 5 (September 2020),
https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53
Rev. 5.pdf; IBR approved for appendix A to this subpart.
(8) SP 800-57 Part 1, Recommendation for Key Management: Part 1--
General, Rev. 5, Elaine Barker (May 2020), https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt1r5.pdf; IBR approved for
appendix A to this subpart.
(9) SP 800-57 Part 2, Recommendation for Key Management: Part 2--
Best Practices for Key Management Organization, Rev. 1, Elaine and
William C. Barker (May 2019), https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt2r1.pdf; IBR approved for appendix
A to this subpart A.
(10) SP 800-57 Part 3, Recommendation for Key Management: Part 3:
Application-Specific Key Management Guidance, Rev. 1, Elaine Barker and
Quynh Dang (January 2015), https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57Pt3r1.pdf; IBR approved for appendix
A to this subpart.
(11) SP 800-63-3, Digital Identity Guidelines, Paul A. Grassi et
al. (June 2017), https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-3.pdf; IBR approved for appendix A to this subpart.
(12) SP 800-63B, Digital Identity Guidelines Authentication and
Lifecycle Management, Paul A. Grassi et al. (June 2017), https://
nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63b.pdf; IBR
approved for appendix A to this subpart.
(13) Framework for Improving Critical Infrastructure Cybersecurity
Version 1.1 (April 16, 2018), https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf; IBR approved for appendix A to this subpart.
0
4. Add Sec. 37.7 to read as follows:
Sec. 37.7 Temporary waiver for mDLs; State eligibility.
(a) Generally. TSA may issue a temporary certificate of waiver that
exempts mDLs issued by a State from meeting the requirements in Sec.
37.5(b), when the State meets the requirements of Sec. 37.10(a) and
(b).
(b) State eligibility. A State may be eligible for a waiver only
if, after considering all information provided by a State under Sec.
37.10(a) and (b), TSA determines that--
(1) The State is in full compliance with all applicable REAL ID
requirements as defined in subpart E of this part;
(2) Information provided by the State under Sec. 37.10(a) and (b)
sufficiently demonstrates that the State's mDL provides the security,
privacy, and interoperability necessary for acceptance by Federal
agencies; and
(3) The State issues mDLs only to individuals who have been issued
a valid and unexpired REAL ID-compliant physical driver's license or
identification card issued by that State.
0
5. Add Sec. 37.8 to read as follows:
Sec. 37.8 Requirements for Federal agencies accepting mDLs issued by
States with temporary waiver.
Notwithstanding Sec. 37.5(b), Federal agencies may accept an mDL
for REAL ID official purposes issued by a State that has a valid
certificate of waiver issued by TSA under Sec. 37.7(a). A Federal
agency that elects to accept mDLs under this section must--
(a) Confirm the State holds a valid certificate of waiver
consistent with Sec. 37.7(a) by verifying that the State appears in a
list of mDLs approved for Federal use, available as provided in Sec.
37.9(b)(1);
(b) Use an mDL reader to retrieve and validate mDL data as required
by standard ISO/IEC 18013-5:2021 (incorporated by reference; see Sec.
37.4); and
(c) Upon discovery that acceptance of a State's mDL is likely to
cause
[[Page 60086]]
imminent or serious threats to the security, privacy, or data
integrity, the agency's senior official responsible for REAL ID
compliance, or equivalent function, must report such discovery to DHS
at www.dhs.gov/real-id/mDL within 72 hours of such discovery.
0
6. Add Sec. 37.9 to read as follows:
Sec. 37.9 Applications for temporary waiver for mDLs.
(a) Application process. Each State requesting a temporary waiver
must file with TSA a complete application as set forth in Sec.
37.10(a) and (b). Application filing instructions, may be obtained from
DHS at www.dhs.gov/real-id/mDL.
(b) Decisions. TSA will provide written notice via email to States
within 60 days, to the extent practicable, but in no event longer than
90 days, indicating that TSA has made one of the following decisions:
(1) Approved. Upon approval of an application for a temporary
waiver, TSA will issue a certificate of waiver to the State, and
publish the State's name in a list of mDLs approved for Federal use at
www.dhs.gov/real-id/mDL.
(2) Insufficient. Upon determination that an application for a
temporary waiver is incomplete or otherwise deficient, TSA will provide
the State an explanation of deficiencies, and an opportunity to address
any deficiencies and submit an amended application. States will have 60
days to respond to the notice, and TSA will respond via email within 30
days.
(3) Denied. Upon determination that an application for a waiver
fails to meet criteria specified in Sec. 37.10(a) and (b), TSA will
provide the State specific grounds on which the denial is based, and
provide the State an opportunity to seek reconsideration as provided in
paragraph (c) of this section.
(c) Reconsideration. (1) States will have 90 days to file a request
for reconsideration of a denied application. The State must explain
what corrective action it intends to implement to correct any defects
cited in the denial or, alternatively, explain why the denial is
incorrect. Instructions on how to file a request for reconsideration
for denied applications may be obtained from TSA at www.dhs.gov/real-id/mDL. TSA will notify States of its final determination within 60
days of receipt of a State's request for reconsideration.
(2) An adverse decision upon reconsideration is a final agency
action. A State whose request for reconsideration has been denied may
submit a new application at any time following the process set forth in
paragraph (a) of this section.
(d) Terms and conditions. A certificate of waiver will specify--
(1) The effective date of the waiver;
(2) The expiration date of the waiver; and
(3) Any additional terms or conditions as necessary.
(e) Limitations; suspension; termination--(1) Validity period. A
certificate of waiver is valid for a period of 3 years from the date of
issuance.
(2) Reporting requirements. If a State, after it has been granted a
certificate of waiver, makes any significant additions, deletions, or
modifications to its mDL issuance processes, other than routine systems
maintenance and software updates, that differ materially from the
information the State provided in response to Sec. 37.10(a) and (b)
under which the waiver was granted, the State must provide written
notice of such changes to TSA at www.dhs.gov/real-id/mDL 60 days before
implementing such additions, deletions, or modifications.
(3) Compliance. A State that is issued a certificate of waiver
under this section must comply with all applicable REAL ID requirements
in Sec. 37.51(a), and with all terms and conditions specified in
paragraph (d)(3) of this section.
(4) Suspension. (i) TSA may suspend the validity of a certificate
of waiver for any of the following reasons:
(A) Failure to comply. TSA determines that a State has failed to
comply with paragraph (d)(3) or (e)(2) of this section, or has issued
mDLs in a manner not consistent with the information provided under
Sec. 37.10(a) or (b); or
(B) Threats to security, privacy, and data integrity. TSA reserves
the right to suspend a certificate of waiver at any time upon discovery
that Federal acceptance of a State's mDL is likely to cause imminent or
serious threats to the security, privacy, or data integrity of any
Federal agency. In such instances, TSA will provide written notice via
email to each affected State as soon as practicable after discovery of
the triggering event, including reasons for suspension, an explanation
of any corrective actions a State must take to resume validity of its
certificate of waiver.
(ii) Before suspending a certificate of waiver under paragraph
(e)(4)(i)(A) of this section, TSA will provide to such State written
notice via email of intent to suspend, including an explanation of
deficiencies and instructions on how the State may cure such
deficiencies. States will have 30 days to respond to the notice, and
TSA will respond via email within 30 days. TSA's response would include
one of the following: withdrawal of the notice, a request for
additional information, or a final suspension.
(iii) If TSA issues a final suspension, TSA will temporarily remove
the State from the list of mDLs approved for Federal acceptance for
official purposes. TSA will continue to work with a State to whom TSA
has issued a final suspension to resume validity of its existing
certificate of waiver. A State that has been issued a final suspension
may seek a new certificate of waiver by submitting a new application
following the process set forth in paragraph (a) of this section.
(5) Termination. (i) DHS may terminate a certificate of waiver at
an earlier date than specified in paragraph (d)(2) of this section if
TSA determines that a State--
(A) Does not comply with applicable REAL ID requirements in Sec.
37.51(a);
(B) Is committing an egregious violation of requirements specified
under paragraph (d)(3) or (e)(2) of this section that the State is
unwilling to cure; or
(C) Provided false information in support of its waiver
application.
(ii) Before terminating a certificate of waiver, TSA will provide
the State written notice via email of intent to terminate, including
findings on which the intended termination is based, together with a
notice of opportunity to present additional information. States must
respond to the notice within 7 days, and TSA will reply via email
within 30 days. TSA's response would include one of the following:
withdrawal of the notice, a request for additional information, or a
final termination.
(iii) If TSA issues a final termination, TSA will remove the State
from the list of mDLs approved for Federal acceptance for official
purposes. A State whose certificate of waiver has been terminated may
seek a new waiver by submitting a new application following the process
set forth in paragraph (a) of this section.
(6) Reapplication. A State seeking extension of a certificate of
waiver after expiration of its validity period must file a new
application under paragraph (a) of this section.
(f) Effect of status of certificate of waiver. (1) Issuance of a
certificate of waiver is not a determination of compliance with any
other section in this part.
(2) An application for certificate of waiver that TSA has deemed
insufficient or denied, or a certificate of waiver that TSA has deemed
suspended, terminated, or expired, is not a determination of non-
compliance with any other section in this part.
[[Page 60087]]
0
7. Add Sec. 37.10 to read as follows:
Sec. 37.10 Application criteria for issuance of temporary waiver for
mDLs; audit report; waiver application guidance.
(a) Application criteria. A State requesting a certificate of
waiver must establish in its application that the mDLs for which the
State seeks a waiver are issued with controls sufficient to resist
compromise and fraud attempts, provide privacy protections sufficient
to safeguard an mDL holder's identity data, and provide
interoperability for secure acceptance by Federal agencies under the
terms of a certificate of waiver. To demonstrate compliance with such
requirements, a State must provide information, documents, and/or data
sufficient to explain the means, which includes processes,
methodologies, or policies, that the State has implemented to comply
with requirements in this paragraph (a).
(1) Provisioning. For both remote and in-person provisioning, a
State must explain the means it uses to address or perform the
following--
(i) Data encryption. Securely encrypt mDL data and an mDL holder's
Personally Identifiable Information when such data is transferred
during provisioning, and when stored on the State's system(s) and on
mDL holders' mobile devices.
(ii) Escalated review. Review repeated failed attempts at
provisioning, resolve such failures, and establish criteria to
determine when the State will deny provisioning an mDL to a particular
mDL applicant.
(iii) Authentication. Confirm that an mDL applicant has control
over the mobile device to which an mDL is being provisioned at the time
of provisioning.
(iv) Device identification keys. Confirm that the mDL applicant
possesses the mDL device private key bound to the mDL during
provisioning.
(v) User identity verification. Prevent an individual from falsely
matching with the licensing agency's records, including portrait
images, of other individuals.
(vi) Applicant presentation. Prevent physical and digital
presentation attacks by detecting the liveness of an individual and any
alterations to the individual's appearance during remote and in-person
provisioning.
(vii) REAL ID compliant physical card. Issue mDLs only to residents
who have been issued by that State a valid and unexpired REAL ID
compliant physical driver's license or physical identification card.
(viii) Data record. Issue mDLs using data, including portrait
image, of an individual that matches corresponding data in the database
of the issuing State's driver's licensing agency for that individual.
(ix) Records retention. Manage mDL records and related records,
consistent with requirements set forth in the American Association of
Motor Vehicle Administrator (AAMVA) Mobile Driver's License (mDL)
Implementation Guidelines (incorporated by reference; see Sec. 37.4).
(2) Issuance. A State must explain the means it uses to manage the
creation, issuance, use, revocation, and destruction of the State's
certificate systems and keys in full compliance with the requirements
set forth in appendix A to this subpart.
(3) Privacy. A State must explain the means it uses to protect
Personally Identifiable Information during processing, storage, and
destruction of mDL records and provisioning records.
(4) Interoperability. A State must explain the means it uses to
issue mDLs that are interoperable with standard ISO/IEC 18013-5:2021
and the ``AAMVA mDL data element set'' defined in the American
Association of Motor Vehicle Administrator (AAMVA) Mobile Driver's
License (mDL) Implementation Guidelines v. 1.1 (incorporated by
reference; see Sec. 37.4) as follows:
(i) A State must issue mDLs using the data model defined in ISO/IEC
18103-5:2021 section 7 (incorporated by reference; see Sec. 37.4),
using the document type ``org.iso.18013.5.1.mDL,'' and using the name
space ``org.iso.18013.5.1''. States must include the following mDL data
elements defined as mandatory in Table 5: ``family_name'',
``given_name'', ``birth_date'', ``issue_date'', ``expiry_date'',
``issuing_authority'', ``document_number'', ``portrait'', and must
include the following mDL data elements defined as optional in Table 5:
``sex'', ``resident_address'', ``portrait_capture_date'',
``signature_usual_mark''.
(ii) States must use the AAMVA mDL data element set defined in
American Association of Motor Vehicle Administrator (AAMVA) Mobile
Driver's License (mDL) Implementation Guidelines v. 1.2, Section 3.2
(incorporated by reference; see Sec. 37.4), using the namespace
``org.iso.18013.5.1.aamva'' and must include the following data
elements in accordance with the AAMVA mDL Implementation Guidelines
v1.2 (incorporated by reference; see Sec. 37.4): ``DHS_compliance'',
and ``DHS_temporary_lawful_status''.
(iii) States must use only encryption algorithms, secure hashing
algorithms, and digital signing algorithms as defined by ISO/IEC 18103-
5:2021, Section 9 and Annex B (incorporated by reference; see Sec.
37.4), and which are included in the following NIST Federal Information
Processing Standards (FIPS): NIST FIPS PUB 180-4, NIST FIPS PUB 186-5,
NIST FIPS PUB 197, NIST FIPS PUB 198-1, and NIST FIPS PUB 202
(incorporated by reference; see Sec. 37.4).
(b) Audit report. States must include with their applications a
report of an audit that verifies the information provided under
paragraph (a) of this section.
(1) The audit must be conducted by a recognized independent
entity--
(i) Holding an active Certified Public Accountant license in the
issuing State;
(ii) Experienced with information systems security audits;
(iii) Accredited by the issuing State; and
(iv) Holding a current and active American Institute of Certified
Public Accountants (AICPA) Certified Information Technology
Professional (CITP) credential or ISACA (F/K/A Information Systems
Audit and Control Association) Certified Information System Auditor
(CISA) certification.
(2) States must include information about the entity conducting the
audit that identifies--
(i) Any potential conflicts of interest; and
(ii) Mitigation measures or other divestiture actions taken to
avoid conflicts of interest.
(c) Waiver application guidance--(1) Generally. TSA will publish
``Mobile Driver's License Waiver Application Guidance'' to facilitate
States' understanding of the requirements set forth in paragraph (a) of
this section. The non-binding Guidance will include recommendations and
examples of possible implementations for illustrative purposes only.
TSA will publish the Guidance on the REAL website at www.dhs.gov/real-id/mDL.
(2) Updates. TSA may periodically update its Waiver Application
Guidance as necessary to provide additional information or
recommendations to mitigate evolving threats to security, privacy, or
data integrity. TSA will publish updated Guidance in the Federal
Register and at www.dhs.gov/real-id/mDL, and provide a copy to all
States that have applied for or been issued a certificate or waiver.
0
8. Add appendix A to subpart A to read as follows:
[[Page 60088]]
Appendix A to Subpart A of Part 37--Mobile Driver's License Issuance
Infrastructure Requirements
A State that issues mDLs for acceptance by Federal agencies for
official purposes as specified in the REAL ID Act must implement the
requirements set forth in this appendix in full compliance with the
cited references as set forth in the following table. All the
standards identified in the following table are incorporated by
reference, see Sec. 37.4. If a State utilizes the services of a
Delegated Third Party, the State must ensure the Delegated Third
Party complies with all applicable requirements of this appendix for
the services provided.
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Dated: August 17, 2023.
David P. Pekoske,
Administrator.
[FR Doc. 2023-18582 Filed 8-28-23; 4:15 pm]
BILLING CODE 9110-05-C