[Federal Register Volume 89, Number 177 (Thursday, September 12, 2024)]
[Proposed Rules]
[Pages 74137-74161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20616]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 177 / Thursday, September 12, 2024 /
Proposed Rules
[[Page 74137]]
DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
6 CFR Part 37
[Docket No. TSA-2023-0003]
RIN 1652-AA77
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Phased Approach
for Card-Based Enforcement
AGENCY: Transportation Security Administration (TSA), Department of
Homeland Security (DHS).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This proposed rule would ensure that Federal agencies have
appropriate flexibility to implement the card-based enforcement
provisions of the REAL ID regulations after the May 7, 2025,
enforcement deadline by explicitly permitting agencies to implement
card-based enforcement in phases. This rulemaking proposes that
agencies may implement the card-based enforcement provisions through a
phased enforcement plan if they determine it is appropriate upon
consideration of relevant factors including security, operational
feasibility, and public impact. The proposed rule would also require
agencies to coordinate their plans with DHS, make the plans publicly
available, and achieve full enforcement by May 5, 2027.
DATES: Interested persons are invited to submit comments on or before
October 15, 2024.
ADDRESSES:
Comments: 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, 6595 Springfield Center Drive,
Springfield, VA 20598; telephone: (571) 227-2215; email:
[email protected].
Please do not submit comments to these addresses.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for Comments
DHS invites interested persons to participate in this NPRM by
submitting written comments, including relevant data. Comments that
will provide the most assistance to DHS 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
DHS will review all comments received on this proposed rule, but
may choose not to post off-topic, inappropriate, or duplicative
comments. To submit a comment:
Go to https://www.regulations.gov and follow the
instructions for submitting comments for docket number TSA-2023-0003.
If your material cannot be submitted using https://www.regulations.gov,
contact the persons listed in the FOR FURTHER INFORMATION CONTACT
section of this document for alternative instructions.
All submissions received must include the agency name and
docket number for this rulemaking.
Comments posted to https://www.regulations.gov are posted
without change and will include any personal information provided. For
more information about privacy and submissions in response to this
document, see DHS's eRulemaking System of Records notice (85 FR 14226,
March 11, 2020).
Abbreviations and Terms Used in This Document
DHS--U.S. Department of Homeland Security
DL/IDs--Driver's Licenses and Identification Cards
NPRM--Notice of Proposed Rulemaking
TSA--Transportation Security Administration
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Overview of the Proposed Rule
II. Background
A. The REAL ID Act and Implementing Regulations
B. Progress Towards Full Implementation
C. Factors Impacting REAL ID Adoption Rates
III. Summary of the Proposed Rule
A. Phased Enforcement Plans
B. Consideration of Further Extending the Card-Based Enforcement
Deadline
C. Broad DHS Approach
D. Phased Enforcement Guidance
IV. Regulatory Analyses
A. Paperwork Reduction Act
B. Economic Impact Analyses
C. Executive Order 13132 (Federalism)
D. Executive Order 13175 (Tribal Consultation)
E. Environmental Analysis
F. Energy Impact Analysis
I. Executive Summary
A. Purpose of the Regulatory Action
Secure driver's licenses and identification documents are a vital
component of our national security framework. The REAL ID Act,\1\
passed by Congress in 2005, enacted the 9/11 Commission's
recommendation that the Federal Government ``set standards for the
issuance of . . . sources of identification, such as drivers
licenses.'' \2\ The requirements of the
[[Page 74138]]
REAL ID Act and its implementing regulations set minimum security
standards for the issuance of DL/IDs, which are designed to improve the
reliability of those State-issued documents. These requirements allow
Federal agencies that accept State-issued DL/IDs for official purposes
to determine with greater accuracy whether individuals presenting a DL/
ID are who they say they are.
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\1\ Public Law 109-13, 119 Stat. 231, 302 (May 11, 2005)
(codified at 49 U.S.C. 30301 note).
\2\ The 9/11 Commission Report, Final Report of the National
Commission on Terrorist Attacks upon the United States (July 2004)
(9/11 Commission Report), p. 390, available at https://www.govinfo.gov/app/details/GPO-911REPORT (last visited April 16,
2024).
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Pursuant to the current REAL ID regulations, after REAL ID card-
based enforcement begins on May 7, 2025, Federal agencies may only
accept State-issued driver's licenses and identification cards (DL/IDs)
for official purposes, as defined in the REAL ID Act and regulation, if
that DL/ID is issued in accordance with REAL ID requirements by a REAL
ID-compliant State.\3\ In order to fully realize the enhanced security
provided by the REAL ID requirements, DHS is committed to beginning
card-based enforcement on May 7, 2025. However, as of January 2024,
only approximately 56 percent of DL/IDs in circulation nationally are
REAL ID-compliant.\4\ In 34 States,\5\ less than 60 percent of DL/IDs
in circulation are REAL ID-compliant, and in 22 States less than 40
percent are REAL ID-compliant.\6\ Further, because of the history of
extensions related to REAL ID enforcement, DHS believes that the public
may continue to expect that additional extensions are likely and not
feel urgency to obtain a REAL ID. DHS believes this pattern is likely
to delay increased adoption in many States despite best efforts to
inform the public, potentially leading to last-minute surges in demand
for REAL IDs leading up to the deadline.
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\3\ 6 CFR 37.5(b).
\4\ Based on REAL ID issuance data, as of January 2024,
voluntarily submitted monthly to DHS by the compliant states.
\5\ DHS uses ``states'' and ``licensing jurisdictions''
interchangeably throughout this document to refer collectively to
the 56 different U.S. jurisdictions that issue DL/IDs that are
governed by the REAL ID regulations. These jurisdictions are the 50
states, the District of Columbia, and the territories of Puerto
Rico, U.S. Virgin Islands, Guam, the Commonwealth of the Northern
Mariana Islands, and American Samoa. 6 CFR 37.3.
\6\ See supra note 3.
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DHS believes this surge could overwhelm States and result in
backlogs and delays in REAL ID issuance. In light of this, DHS
anticipates that a significant number of individuals seeking to use
their DL/ID for a REAL ID official purposes on and after May 7, 2025,
may not have a compliant DL/ID. DHS recognizes that this could result
in a situation where individuals are unable to present a compliant DL/
ID to access a Federal facility or board a federally regulated
commercial aircraft on a large scale. For some agencies, this scenario
may raise serious concerns related to security, agency operations, and
potential impact to the public. While these concerns are especially
acute in an airport security environment, DHS anticipates that other
Federal agencies that operate facilities visited frequently by the
general public \7\ may also face similar concerns. This proposed rule
recognizes these concerns and would provide flexibility by permitting
agencies to, for a period of up to 2 years, implement REAL ID card-
based enforcement using a phased approach tailored to their specific
operations.
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\7\ The requirements of the REAL ID Act and regulation apply
only in contexts where individuals are required to present an
identification document to Federal agencies for official purposes.
See REAL ID Act of 2005 Implementation: An Interagency Security
Committee Guide (2019), p. 4-7, available at https://www.cisa.gov/resources-tools/resources/isc-guide-real-id-act-2005-implementation
(last visited April 19, 2024).
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DHS believes that this approach will be more effective at achieving
full enforcement than further extensions of the enforcement deadline.
By demonstrating that the government is preparing for and planning to
begin enforcement, the proposed rule reiterates for the public that
REAL ID card-based enforcement will start on May 7, 2025, and provides
an opportunity for States and the public to prepare for full
enforcement. After May 7, 2025, when agencies begin full enforcement or
implement a phased enforcement plan, as appropriate, the public will be
further incentivized to obtain a REAL ID as they anticipate
consequences for presenting a non-compliant DL/ID. At the same time,
the proposed rule is intended to allow a transition to full enforcement
that mitigates the potential negative impact to agencies and the public
if full enforcement began immediately on the card-based enforcement
date. Given the current percentage of REAL ID-compliant DL/IDs that
have been issued (as a percentage of all DL/IDs), the challenges many
States are experiencing as they seek to increase adoption of compliant
DL/ID, and the resulting concerns of Federal agencies, the proposed
rule would provide important flexibility to agencies to ensure a smooth
transition to card-based enforcement. The proposed rule balances the
increased security benefits of beginning card-based enforcement with an
understanding of the significant risks that some Federal agencies may
experience as a result of the transition to full enforcement.\8\
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\8\ ``Full enforcement'' or ``full card-based enforcement''
means that an agency only accepts REAL ID-compliant DL/IDs for
official purposes.
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B. Overview of the Proposed Rule
Under current regulations, Federal agencies may not accept non-
compliant DL/IDs for REAL ID official purposes when card-based
enforcement is required on May 7, 2025. While Federal agencies would
still be required to commence REAL ID card-based enforcement on May 7,
2025, this proposed rule would provide agencies, for a period of up to
2 years, flexibility to determine that a phased approach to card-based
enforcement is appropriate after considering relevant factors including
security, operational feasibility, and impact to the public offered by
their agency. The proposed rule seeks to provide an enforcement
approach that allows agencies to maximize security gains in contexts
where a swift transition to full enforcement poses little risk, while
minimizing the risks in contexts where large numbers of individuals
seeking to use noncompliant DL/IDs raises serious concerns.
To ensure that agencies' phased enforcement plans consistently and
appropriately advance the objectives of the REAL ID regulations, this
proposed rule would require agencies to coordinate their phased
enforcement plans with DHS and begin full enforcement no later than May
5, 2027. To ensure transparency and public visibility, the proposed
rule would require agencies that use a phased enforcement plan to make
their plan publicly available on their web page and require DHS to make
publicly available a list of agencies that have coordinated phased
enforcement plans with DHS. Finally, the proposed rule's preamble
provides guidance to Federal agencies on types of phased enforcement
plans that agencies may consider.
II. Background
A. The REAL ID Act and Implementing Regulations
All but one of the September 11, 2001, terrorist hijackers acquired
some form of identification document, some by fraud, and used these
forms of identification to assist them in boarding commercial flights,
renting cars, and other necessary activities leading up to the
attacks.\9\ Consequently, the 9/11 Commission recommended that the
Federal Government set standards for the issuance of more secure
sources of
[[Page 74139]]
identification for use in, among other activities, boarding aircraft
and accessing vulnerable facilities.\10\
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\9\ Id.
\10\ Id.
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The REAL ID Act of 2005 (the REAL ID Act) addressed the 9/11
Commission's recommendation that the Federal Government ``set standards
for the issuance of . . . sources of identification, such as drivers
licenses.'' \11\ The REAL ID Act sets minimum security requirements for
the issuance and production of DL/IDs issued by the States,
territories, and the District of Columbia in order for Federal agencies
to accept these documents for official purposes.\12\ Official purposes
include: (1) accessing Federal facilities, (2) boarding federally
regulated commercial aircraft, (3) entering nuclear power plants, and
(4) any other purposes that the Secretary of Homeland Security shall
determine.\13\
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\11\ Id.
\12\ Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13,
Div. B. title II, sections 201 to 207, May 11, 2005, as amended
(codified at 49 U.S.C. 30301 note).
\13\ Id. at section 201.
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On January 29, 2008, DHS published a final rule implementing the
REAL ID Act's requirements.\14\ The regulations include both a deadline
for State compliance with the REAL ID requirements and a separate
deadline after which individuals must present a REAL ID-compliant
license or identification card in order for Federal agencies to accept
the document for official purposes.\15\ DHS refers to these deadlines
as ``state-based'' and ``card-based'' enforcement, respectively. Under
existing regulations, card-based enforcement is scheduled to begin on
May 7, 2025.\16\ On this date, Federal agencies may not accept for
official purposes a license or identification card issued by a State
unless that license or card was issued in accordance with the REAL ID
standards by a REAL ID-compliant jurisdiction.
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\14\ See 73 FR 5272 (Jan. 29, 2008) (codified as amended at 6
CFR part 37).
\15\ 6 CFR 37.51(a) and 37.5.
\16\ 6 CFR 37.5(b); 88 FR 14473 (Mar. 9, 2023) (extending the
REAL card-based enforcement deadline from May 3, 2023, to May 7,
2025).
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In addition to compliant licenses and identification cards, States
may issue noncompliant licenses and identification cards, which will
not be acceptable by Federal agencies for official purposes after the
card-based deadline, to individuals who are unable or unwilling to
present the documents and information necessary to obtain a REAL ID-
compliant license or card. These noncompliant licenses and cards must
(1) clearly state that the card is not acceptable for official
purposes, and (2) have a unique design or color indicator that clearly
distinguishes them from compliant licenses and identification
cards.\17\ The REAL ID regulations authorize, but do not require,
Federal agencies to accept these noncompliant cards until card-based
enforcement begins.\18\
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\17\ 6 CFR 37.71; REAL ID Act sec. 202(d)(11).
\18\ See 86 FR 23237 (May 3, 2021) (codified at 6 CFR 37.5(c))
(clarifying that the deadline by which Federal agencies may no
longer accept noncompliant driver's licenses and identification
cards for official purposes applies to all noncompliant cards,
including state-issued driver's licenses and identification cards
marked to indicate that they may not be used for official Federal
purposes), and 88 FR 14473 (extending the deadline by which Federal
agencies may continue to accept noncompliant cards for official
purposes until May 7, 2025).
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B. Progress Towards Full Implementation
Since its enactment in 2005, DHS has worked with the States to
implement the requirements of the REAL ID Act. DHS has provided
funding, technical assistance, outreach, and engagement. DHS has
awarded over $263 million in grant funding to assist in enhancements to
drivers' license security programs.\19\ These efforts have yielded
significant progress towards full REAL ID implementation. All 56
licensing jurisdictions subject to REAL ID have achieved REAL ID
certification. DHS also completed one phase of a nationwide REAL ID
advertising campaign (``Be Your REAL ID Self'') and produced an
advertising toolkit available for free to all DHS stakeholders. DHS
continues to work with stakeholders to reach full implementation of the
REAL ID Act and regulations.
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\19\ Secure Identification State Progress Report-Fiscal Year
2012 Report to Congress.
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Considering the impact of the COVID-19 pandemic on State and local
government operations and the desire to reduce further spread by
encouraging continued social distancing, DHS extended the card-based
enforcement deadline three times during the pandemic. In April 2020,
DHS issued a final rule extending the REAL ID card-based enforcement
date for 1 year until October 1, 2021; \20\ in May 2021, DHS further
extended the card-based enforcement date until May 3, 2023, through the
issuance of an interim final rule (IFR) requesting comments; \21\ and,
on March 9, 2023, DHS issued a final rule finalizing the May 2021 IFR
and extending the card-based enforcement deadline to May 7, 2025.\22\
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\20\ 85 FR 23205 (Apr. 27, 2020).
\21\ 86 FR 23237 (May 3, 2021). DHS received one comment in
response to the IFR. See, https://www.regulations.gov/comment/DHS-2021-0019-0002. The commenter supported the extension until May 3,
2023, stating that ``state agencies have either closed offices,
shortened operating hours, or greatly limited occupancy in
offices.'' Id.
\22\ 88 FR 14473.
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C. Factors Impacting REAL ID Adoption Rates
The U.S. has 56 different jurisdictions that issue DL/IDs and are
subject to REAL ID requirements, including the 50 States, the District
of Columbia, and the territories of Puerto Rico, U.S. Virgin Islands,
Guam, the Commonwealth of the Northern Mariana Islands, and American
Samoa. All but five States offer their residents the option to obtain a
noncompliant DL/ID for various reasons including State privacy
requirements, implementation costs to the State and residents, and to
provide the opportunity to obtain a DL/ID to residents who may not be
able to obtain a REAL ID-compliant DL/ID.\23\
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\23\ The five states that only offer REAL ID-compliant DL/IDs
are Florida, Georgia, Mississippi, Texas, and Wyoming.
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Based on REAL ID data compiled by compliant licensing
jurisdictions, as of January 2024, DHS estimates that compliant States,
territories, and the District of Columbia have issued approximately 162
million REAL ID-compliant DL/ID, which represent approximately 56
percent of the population possessing a State-issued DL/ID.\24\ Data
from the States also indicates that the States have approximately 110
million noncompliant marked DL/IDs and approximately 14 million legacy
licenses without any markings (issued before a State's REAL ID
compliance determination) still in circulation.
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\24\ DHS began to collect data voluntarily submitted by
licensing jurisdictions including the total number of DL/IDs, number
of REAL IDs, number of non-compliant cards, and number of ``legacy''
cards in July 2019. Beginning in October 2019, DHS began to receive
the data on a monthly basis.
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There are a number of factors that impact the REAL ID adoption rate
in any given State resulting in significant variability in adoption
rates from State to State. These factors include: (1) the date a State
became REAL ID certified and began issuing REAL ID-compliant DL/IDs,
(2) whether the State offers a noncompliant DL/ID, (3) the number of
legacy cards (DL/IDs issued before a State became REAL ID certified)
still in circulation, (4) the validity period of DL/IDs issued by a
State, (5) the disruption to Department of Motor Vehicles (DMV)
operations and ability to provide services during the COVID-19
pandemic, and (6) State resource constraints, including budgetary and
staffing constraints.
[[Page 74140]]
Generally, States that have become REAL ID certified more recently
are more likely to have a lower REAL ID adoption rate than States that
were certified earlier, as their populations have had less time to
obtain a REAL ID-compliant DL/ID. While some licensing jurisdictions
have been issuing REAL ID-compliant cards for many years and have high
adoption rates, nearly half (27) of the jurisdictions have only been
certified since 2018. States that issue cards with longer validity
periods generally have lower adoption rates than States that issue
cards with shorter validity periods, as it takes longer for legacy
cards to cycle through their validity period. REAL ID adoption rates
are also influenced by whether a State offers its population the option
to receive a noncompliant card. There are many reasons States choose to
offer residents the option to obtain a noncompliant card when an
individual's DL/ID is due for renewal, including the ability to meet
eligibility requirements for a compliant DL/ID, potential greater
monetary and time costs associated with obtaining a compliant DL/ID,
and the convenience of renewing a legacy or existing noncompliant DL/ID
online instead of travelling in person to the DMV (this became
particularly relevant during the extended COVID-19 pandemic). In States
that offer noncompliant cards, a substantial number of individuals
choose to obtain a noncompliant card, rather than a compliant DL/ID,
when they seek to renew an existing legacy or noncompliant DL/ID. DHS
understands that individuals may choose to obtain a noncompliant card
for a number of reasons including lower monetary costs, reduced time
burden of collecting necessary documents, and avoiding in-person visits
to physical DMV locations.
As a result of the COVID-19 pandemic, most State licensing agencies
were forced to close branches or operate at a reduced capacity for
extended periods of time, limiting the ability of their residents to
obtain REAL ID-compliant DL/IDs. The impact of pandemic-related
mitigation measures on REAL ID adoption was accentuated by two
additional factors. First, 27 jurisdictions were certified between 2018
and 2022, meaning they had very little or no time to issue REAL ID-
compliant DL/IDs prior to the mitigation measures implemented during
the pandemic. As a result, these States had only issued a relatively
low number of REAL ID-compliant DL/IDs when adoption rates started
falling during, and continuing after, the pandemic. The combination of
low numbers of compliant DL/IDs issued pre-pandemic and the decreased
rate of adoption during the pandemic suggests that the current number
of compliant DL/IDs issued in these States is unlikely to be
significantly higher than the pre-pandemic number. Second, REAL ID-
compliant DL/IDs cannot be issued without the physical presence of the
applicant, but during the pandemic many States extended license
expiration dates and offered individuals the ability to obtain
noncompliant DL/IDs without an in-person visit to the DMV (through an
online or mail process, for example). To avoid visiting the DMV many
individuals who might have otherwise obtained a REAL ID likely chose to
obtain a noncompliant card instead.
DHS observed widespread decreases in REAL ID adoption rates coupled
with significant increases in noncompliant card issuance rates during,
and immediately after, the pandemic. This trend resulted in reduced
adoption rates. Prior to the pandemic, the national REAL ID adoption
rate was approximately 2.5 percent per month, however, this rate
dropped to less than 0.5 percent in April and May of 2020. As of
January 2024, the national adoption rate has not reached its pre-
pandemic level and continues to stand at approximately 0.56 percent per
month. As detailed in the regulatory analyses (section IV(b)(2)(e)
Adoption of REAL ID-Compliant DL/IDs), DHS estimates that only about
61.2 percent of DL/IDs in circulation would be REAL ID-compliant by the
card-based enforcement deadline of May 7, 2025.\25\
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\25\ Over the last twelve months, between January 2023 and
January 2024, the national compounded monthly growth rate for the
adoption of REAL IDs was 0.56 percent. DHS applied the 0.56
compounded growth rate over the next 16 months to forecast the
percentage of REAL IDs in circulation by May 2025, relative to all
DL/IDs in circulation.
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The significant increase in the issuance of noncompliant cards to
individuals renewing existing noncompliant and legacy DL/IDs will also
likely continue to depress adoption rates for several years. All States
provide their residents with the opportunity to obtain a REAL ID-
compliant DL/ID when their current DL/ID comes up for renewal or if
they are seeking their first driver's license in the State. Depending
on the State, DL/IDs may be valid anywhere from 3 to 8 years. Because
REAL ID adoption has been strongly tied to the renewal cycle and period
of validity of existing DL/IDs, DHS expected adoption rates to rise as
residents in States with long validity periods needed to renew their
DL/IDs. However, the significant increase in issuance of noncompliant
DL/IDs during the pandemic in States where this option was offered as a
less burdensome alternative for individuals to renew their DL/IDs
disrupted this expected effect, as a substantial number of individuals
chose to obtain a noncompliant DL/ID rather than a compliant DL/ID. The
impact of the pandemic is then two-fold; it not only drove down
adoption rates by limiting opportunities for individuals to obtain a
compliant DL/ID, but also delayed the strongest catalyst for REAL ID
adoption, the renewal of a legacy DL/ID. As a result, many individuals
have been issued noncompliant DL/IDs with full validity periods, and
thus would not be incentivized to obtain a REAL ID based upon renewal
until their noncompliant DL/ID expires, which depending on the State
validity period could be years away.
III. Summary of Proposed Rule
A. Phased Enforcement Plans
DHS believes that beginning card-based enforcement on May 7, 2025,
is the most effective path to achieve full implementation of the REAL
ID Act and regulations. The requirements of the REAL ID Act and
regulations provide significant security benefits by improving the
accuracy of identity verification processes.\26\ Beginning card-based
enforcement will accelerate the timeline for full realization of these
increased security standards. The most recent card-based enforcement
extension until May 7, 2025, was intended to provide sufficient time
for individuals to obtain a REAL ID and for DMVs across the country to
fully accommodate the demand for REAL ID-compliant DL/IDs. This
proposed rule recognizes the importance of retaining the May 7, 2025,
deadline to begin enforcement while recognizing that for some agencies
an immediate transition to full enforcement may not be appropriate in
light of relevant factors.
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\26\ See 73 FR 5325-5326, and accompanying Regulatory
Evaluation, Department of Homeland Security, January 17, 2008,
Regulatory Evaluation, Docket Number DHS-2006-0030; 9 H.R. Rep. No.
109-72, 176-185 (2005) available at https://www.congress.gov/109/crpt/hrpt72/CRPT-109hrpt72.pdf (last visited June 17, 2024).
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Today, the REAL ID adoption rate continues to remain well below the
pre-pandemic rate. DHS recognizes that without a significant increase
in the adoption rate leading up to the May 7, 2025, deadline millions
of noncompliant cards will still be in circulation on that date. Even
assuming a substantial increase in the adoption rate, it is difficult
to predict the number of people who will seek to use non-
[[Page 74141]]
REAL ID-compliant IDs for Federal official purposes when enforcement
begins on May 7, 2025. The population-wide adoption rate will likely
differ from the adoption rate of specific populations who will need to
present a REAL ID for official purposes including boarding federally-
regulated commercial aircraft or entering a Federal facility. The
adoption rate is also likely to differ across geographic areas with
certain regions having relatively higher or lower concentrations of
individuals without a REAL ID-compliant DL/ID.
DHS also acknowledges the possible risks to Federal agencies and
public impact should a significant number of individuals seek to use
non-REAL ID-compliant DL/IDs for REAL ID official purposes when
enforcement begins. In some cases, this may impact how agencies provide
certain services or conduct business with the public. If many
individuals seek to use noncompliant DL/IDs at the same location, this
could result in significant backlogs at access points to Federal
facilities and TSA security checkpoints with the potential to result in
significant negative downstream outcomes and poor customer experience.
In TSA's example, if a large number of individuals arrived at an
airport security checkpoint with noncompliant DL/IDs,\27\ they would
not be able use that DL/ID to proceed through screening, potentially
resulting in missed flights. Additionally, long lines, confusion, and
frustrated travelers at the checkpoint may significantly increase
security risks both to passengers and TSA personnel by drawing the
resources and attention of TSA personnel away from other passengers,
including those known to pose an elevated risk. Although DHS is most
engaged with the REAL ID official purpose of boarding federally-
regulated commercial aircraft and TSA's operations, other Federal
agencies may also experience an impact if they begin full enforcement
May 7, 2025.
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\27\ Although a segment of the population may not possess a REAL
ID, they may have other forms of identification acceptable for
official purposes (e.g., a U.S. passport, U.S. passport card, or
military identification). TSA's acceptable ID list is available at
https://www.tsa.gov/travel/security-screening/identification.
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Given that approximately 56 percent of DL/IDs in circulation are
REAL ID-compliant as of January 2024 and the low current adoption
rates, there is a real possibility of disruptions like those described
above that could occur if all agencies begin full enforcement on May 7,
2025. Using the compounded monthly growth rate for the last 12 months
(0.56 percent), DHS estimates that 61.2 percent of REAL IDs, relative
to all DL/IDs in circulation, would be REAL ID-compliant.\28\
Additionally, even if population-wide adoption rates are significantly
higher than they are currently, these outcomes may nonetheless unfold
if adoption rates remain low in specific States or amongst specific
groups of individuals. Operational disruptions could still occur at
locations in areas that have a high concentration of individuals
without REAL IDs or during times of the year when large numbers of
people who do not fly frequently, and who may not possess a REAL ID or
other acceptable form of identification, seek to travel. DHS
anticipates that other agencies that operate facilities nationwide or
experience significant shifts in the number of individuals presenting
identification for official purposes throughout the year may have
similar concerns about the possibility of disruption based on the
current trend in REAL ID adoption rates.
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\28\ DHS calculates the compounded monthly growth rate for the
last 12 months in section IV(b)(2)(e) Adoption of REAL ID-Compliant
DL/IDs.
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Recognizing these challenges and the uncertainty in the number of
individuals Federal agencies may encounter who do not have a REAL ID or
other acceptable identification on May 7, 2025, Federal agencies would
benefit from added flexibility to implement enforcement of the REAL ID
regulations in a manner that takes into account relevant factors
including security, operational feasibility, and public impact. This
proposed rule would permit agencies to make a determination that phased
enforcement is appropriate, in consideration of these factors. The
rulemaking would allow individual agencies to use their own expertise
to structure enforcement plans in such a manner that will lead to
successful enforcement of the REAL ID regulations while mitigating
potential risks of immediately transitioning to full enforcement on May
7, 2025.
The ability to implement the card-based requirements under a phased
approach after the deadline, for a two-year period, would allow Federal
agencies to start card-based enforcement in a manner that reduces
potential disruption to operations, reduces negative public impact, and
supports a smooth transition to full card-based enforcement and the
increased security benefits of REAL ID. For example, agencies would
have the ability to begin enforcement by issuing warning notices or
through progressive consequences if they determine that those measures
would most effectively mitigate the risks of an immediate transition to
full enforcement. Without this flexibility, and especially if the
adoption rate remains low leading up to May 7, 2025, DHS believes
Federal agencies could face a serious risk of operational disruption,
negative public impact, and potential security vulnerabilities.
Further, implementation of card-based enforcement through a phased
approach is consistent with DHS' approach to State-based
enforcement.\29\ Beginning in January 2013, DHS incrementally enforced
the State-based regulatory deadline prohibiting agencies from accepting
licenses and cards issued by States that were not compliant with the
REAL ID standards. The enforcement schedule began with DHS headquarters
and other Federal facilities in 2014 with the final phase, boarding a
Federally regulated commercial aircraft, going into effect in 2018.\30\
This phased enforcement period allowed States to continue to build the
infrastructure and institutional capacity to issue REAL ID-compliant
DL/IDs before enforcement began in the most impactful context (boarding
federally regulated commercial aircraft).
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\29\ DHS Releases Phased Enforcement Schedule for REAL ID (Dec.
20, 2013), available at https://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id.
\30\ TSA to Notify Travelers of Upcoming 2018 REAL ID Airport
Enforcement--Signs at Airports to Inform Travelers of ID
Requirements at Security Checkpoints (Dec. 12, 2016), available at
https://www.dhs.gov/news/2016/12/12/tsa-notify-travelers-upcoming-2018-real-id-airport-enforcement.
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DHS' approach to State-based enforcement demonstrated that phased
enforcement can be effective in achieving compliance with REAL ID
requirements. This proposed rule would provide Federal agencies the
flexibility to determine whether a phased plan to implement the REAL ID
card-based enforcement requirements beginning on May 7, 2025, is
appropriate for its particular circumstances. Such flexibility would
allow agencies to begin card-based enforcement as part of measured,
responsible, and achievable plan leading to full enforcement of the
REAL ID regulations.
Additionally, permitting agencies to begin enforcement using a
phased approach may facilitate increased adoption of REAL ID-compliant
DL/IDs. It would allow agencies to reiterate that further extensions of
the May 7, 2025, enforcement deadline are unlikely by demonstrating
that the government is planning and preparing to begin enforcement. DHS
anticipates that agencies announcing concrete plans for commencing
enforcement on May 7, 2025, could likely incentivize individuals to
obtain a REAL ID-
[[Page 74142]]
compliant DL/ID and result in increased demand at State DMVs. Increased
demand leading up to and after the deadline may outpace the ability of
licensing jurisdictions to meet that demand. The TSA REAL ID Program
has been working with States in preparation for the beginning of REAL
ID enforcement. During this engagement, some States have expressed
concern with ability to meet potential demand.\31\ Using a phased
approach may also allow agencies to provide licensing jurisdictions the
opportunity to make adjustments to alleviate potential backlogs.
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\31\ For example, Oregon has recently approved an increase in
DMV staff dedicated to issuing REAL ID-compliant DL/IDs in
anticipation of the May 7, 2025, deadline. Oregon Department of
Transportation (ODOT), ODOT Operational Report to the Oregon
Transportation Commission (March 5, 2024), available at https://www.oregon.gov/odot/Get-Involved/OTCSupportMaterials/Agenda_F_Operational_Report_PACKET.pdf (last visited April 17,
2024).
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This proposed rule also recognizes that individual Federal agencies
are in the best position to determine how to ensure successful
implementation of the REAL ID requirements within their operational
context. In making a determination of whether phased enforcement
instead of an immediate transition to full enforcement is appropriate,
agencies must, at a minimum, consider three relevant factors that will
inform their decision. DHS identified the three factors it believes are
most likely to impact efficient and successful implementation of card-
based enforcement: security, operational feasibility, and public
impact.
In considering security, agencies should weigh both the security
benefits that card-based enforcement provides as well as potential
security vulnerabilities that an immediate transition to full
enforcement might create. For many agencies, DHS anticipates that the
increased security provided by card-based enforcement weigh in favor of
an immediate transition to full enforcement. However, in certain
contexts, an immediate transition to full enforcement may result in
security vulnerabilities. For example, no longer accepting noncompliant
DL/IDs may lead to long lines and crowding at access points to Federal
facilities or airport security checkpoints \32\ creating soft targets
for terrorists or violent extremists.\33\ Additionally, an atmosphere
of confusion and frustrated individuals who are denied access risks
distracting security personnel from correctly executing their
procedures. Agencies should take a holistic approach in evaluating the
security implications of transitioning to full card-based enforcement.
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\32\ The requirements of the REAL ID Act and regulations
specifically apply to Federal agencies accepting DL/IDs for official
purposes.
\33\ See U.S. Department of Homeland Security Soft Targets and
Crowded Places Security Plan Overview, 5-6 (May 2018), available at
https://www.cisa.gov/sites/default/files/publications/DHS-Soft-Target-Crowded-Place-Security-Plan-Overview-052018-508_0.pdf (last
visited April 18, 2024).
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Regarding operational feasibility, agencies should consider any
implications that transitioning to full enforcement may have on their
ability to continue effectively carrying out operations in support of
their mission. DHS anticipates that in many cases, immediately
transitioning to full enforcement would have little to no impact on
agencies' ability to execute their missions and would enhance security.
Agencies may have limited interactions with the public that necessitate
members of the public seeking to access Federal facilities that require
proof of identity for entry. In cases where agencies currently interact
with members of the public at such facilities, agencies may be able to
easily adjust the manner in which they interact with the public or
provide a service to alleviate the need for individuals to use their
DL/ID for a REAL ID official purpose. For example, agencies may be able
to hold meetings in facilities that do not require the presentation of
identification documents or hold virtual meetings. For certain agencies
whose missions include operations requiring frequent use of
identification documents for a REAL ID official purpose, an immediate
transition to full enforcement may challenge an agency's ability to
effectively carry out its mission if a significant number of
individuals seek to use noncompliant DL/IDs after the May 7, 2025,
deadline. For these agencies, implementing card-based enforcement
through a phased approach would allow the opportunity to observe
changes in the number of noncompliant cards they encounter after the
deadline and transition to full enforcement in a manner that ensures
continuity of operations.
Finally, agencies should assess whether an immediate transition to
full enforcement would negatively impact the public and the provision
of services to the public. The requirements of the REAL ID Act and
regulation apply only in contexts where individuals must present an
identification document to Federal agencies for REAL ID official
purposes.\34\ Card-based enforcement should not impact access to
Federal facilities that do not require identification (for example,
public areas of the Smithsonian museums). Card-based enforcement also
should not impact public services that require identification for
purposes other than an official purpose as defined by the Act and
regulation (for example, applying for or receiving Federal benefits is
not a REAL ID official purpose). However, in cases where a government
function impacting the public does involve a REAL ID official purpose
(for example, boarding a federally-regulated commercial aircraft or
providing a public service that necessitates members of the public
accessing a Federal facility that requires proof of identity for
entry), agencies should consider the extent to which an immediate
transition to full enforcement would impact their ability to provide
that service.
---------------------------------------------------------------------------
\34\ See REAL ID Act of 2005 Implementation: An Interagency
Security Committee Guide (2019), p. 4-7, available at https://www.cisa.gov/resources-tools/resources/isc-guide-real-id-act-2005-implementation.
---------------------------------------------------------------------------
In addition to these factors, agencies may consider other factors
they deem relevant and necessary to make their determination. Agencies'
consideration of all relevant factors will be informed by changes in
the adoption rate leading up to the card-based enforcement deadline.
Certain factors may be given more or less weight depending on the
number of REAL ID noncompliant DL/IDs agencies are likely to encounter
on and after the deadline. For agencies that determine that beginning
full card-based enforcement on May 7, 2025, would not pose significant
risks after considering security, operational feasibility, public
impact, and other relevant factors, the proposed rule maintains the
current regulatory default of an immediate transition to full
enforcement. Agencies that determine that commencing full card-based
enforcement on May 7, 2025, is not appropriate after considering the
relevant factors, may utilize a phased approach that would allow them
to facilitate continued secure and orderly operations and minimize
impacts to the public while implementing enforcement phases that lead
to full REAL ID enforcement. This flexibility would allow these
agencies to maintain operational efficiency; reduce security risks born
from long lines, incidents, and distractions caused by additional
identity verification procedures or turning away individuals who do not
have acceptable identification; decrease potential public backlash to
security personnel enforcing REAL ID; and limit potential negative
impacts to the public.
Should an agency determine that phased enforcement is appropriate,
DHS
[[Page 74143]]
also recognizes that the individual agency is best positioned to
structure its enforcement plan to account for its particular
operational setting. The proposed rule would allow agencies to develop
a phased enforcement best suited to ensuring a successful transition to
phased enforcement in their specific context. Although this proposed
rule does not prescribe the form that phased enforcement plans must
take in incrementally implementing enforcement of the requirements, DHS
does provide some options that agencies may consider.\35\ For example,
agencies' plans may include an initial phase during which warning
notices are issued and/or a phase involving progressive enforcement
measures--like a ``three-strikes'' system or other methods--that enable
agencies to begin enforcement without immediately denying access to
individuals with noncompliant identification on the card-based
enforcement deadline.
---------------------------------------------------------------------------
\35\ More detailed discussion of these options is provided in
section D. below.
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In order to ensure that agencies' enforcement plans appropriately
advance the objectives of the REAL ID regulations and maintain
consistent progress towards full enforcement, the plans must be
coordinated with DHS. The REAL ID Act charges DHS with authority to
implement the Act's requirements.\36\ Requiring agencies that make a
determination to implement the REAL ID regulations through a phased
enforcement plan to coordinate their plan with DHS ensures consistency,
as appropriate, and DHS oversight of successful implementation of the
Act and regulatory requirements. Agencies seeking to use a phased
enforcement plan would be required to coordinate with DHS through the
TSA REAL ID Program Office.\37\ DHS expects and strongly encourages
agencies to make a determination on whether a phased enforcement plan
is appropriate and, where appropriate, develop their plan in advance of
the May 7, 2025, deadline. However, DHS recognizes that agencies may
seek to begin full enforcement on the deadline and encounter
unanticipated challenges or agencies may encounter unforeseen issues in
implementing the plan they developed. In such cases, agencies may
coordinate a new or modified phased enforcement plan with DHS after the
enforcement deadline. Additional information regarding how agencies
should coordinate with DHS will be provided on the DHS REAL ID web
page.\38\
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\36\ 49 U.S.C. 30301 note; 73 FR 5271.
\37\ On December 29, 2022, the Consolidated Appropriations Act,
2023 (Pub. L. 117-328), was signed into law, authorizing the
transfer of the REAL ID Program from the DHS Office of Strategy,
Policy, and Plans to TSA. On May 22, 2023, the Secretary of Homeland
Security approved a delegation formally vesting in TSA the authority
to manage, administer, and coordinate DHS actions necessary for
implementation of the REAL ID Act.
\38\ https://www.dhs.gov/real-id.
---------------------------------------------------------------------------
DHS acknowledges the potential for some confusion resulting from
the possibility of various agencies implementing different phased
enforcement plans. This proposed rule seeks to mitigate that potential
confusion by (1) requiring agencies using a phased approach to make
their plan publicly available on their web page, and (2) requiring DHS
to post a list of agencies that have coordinated phased enforcement
plans with DHS on the DHS REAL ID web page \39\ to provide public
notice of the agencies implementing phased approaches. Agencies should
also clearly provide their policies for access control, including other
acceptable forms of identification. Ultimately, even with the risk of
some confusion, DHS believes this approach is preferable to full
enforcement on May 7, 2025, with the potential to cause significant
disruption or another extension of the deadline, which is unlikely to
incentivize increased REAL ID adoption.
---------------------------------------------------------------------------
\39\ Id.
---------------------------------------------------------------------------
The proposed rule also would require that any agency that chooses
to implement card-based enforcement under a phased approach must fully
enforce the card-based requirements no later than May 5, 2027. On and
after that date, agencies may not accept noncompliant marked DL/IDs or
legacy DL/IDs for official purposes. As mentioned above, DHS
anticipates that shortly before, and as REAL ID card-based enforcement
begins on May 7, 2025, individuals' urgency to obtain a compliant DL/ID
will likely increase as they realize that they will need a compliant
DL/ID when they seek to use their DL/ID for REAL ID official purposes.
In States with low adoption rates, large numbers of individuals may
rapidly seek to obtain REAL ID-compliant DL/IDs. This potential rapid
increase in demand may challenge the capacity of licensing
jurisdictions and may create backlogs in issuance of REAL ID-compliant
cards. The two-year window during which agencies may implement
enforcement in phases is designed, in part, to provide States
sufficient additional time to meet increases in demand for REAL ID-
compliant cards. Agencies who decide to use a phased enforcement plan
may choose to implement plans that reach full enforcement in less than
2 years, but all phased plans must conclude, reaching full card-based
enforcement, no later than May 5, 2027.
DHS chose a two-year period during which agencies may implement
phased enforcement plans to balance delay in fully realizing the
security benefits of REAL ID with allowing sufficient time for Federal
agencies to encourage greater adoption rates and limit negative
enforcement impacts, where appropriate, and for States to meet the
increased demand as individuals seek to obtain compliant DL/IDs. DHS
also considered phased enforcement periods of one, three, four, or five
years' duration. DHS chose 2 years as it believes this time period
provides sufficient opportunity for individuals to obtain a compliant
DL/IDs, while maintaining an impending need (incentive) to do so, and
for States to process them (e.g., time to budget any short term ramp up
that may be necessary) but also requests public comment on the length
of the phased enforcement period.
DHS did not select 1 year because DHS believes this timeframe would
not provide enough time for the anticipated effects of the enforcement
deadline and phased enforcement plans to be realized and reflected in
adoption rates. Many individuals may only seek to use their DL/ID for
official purposes once or twice a year (for example, boarding a
commercial flight to travel for a holiday or vacation). In a one-year
phased enforcement period, individuals who learn of the need to obtain
a REAL ID-compliant DL/ID towards the end of that one-year period--
possibly through a warning notice as part of an agency's phased
enforcement plan--may not have sufficient time to obtain a compliant
DL/ID before full enforcement begins. Additionally, if increased demand
for compliant DL/IDs leading up to and right after the deadline results
in backlogs at State DMVs, DHS believes 1 year may not be sufficient
time for States to make any necessary adjustments to process potential
backlogs. Although a one-year phased enforcement period would provide a
shorter delay in obtaining the full security benefits of REAL ID as
described in the 2008 rule,\40\ DHS does
[[Page 74144]]
not believe it is a long enough period for individuals and States to
both apprehend the need for action as a result of card-based
enforcement and take action to obtain or make adjustments needed to
issue REAL ID-compliant DL/IDs.
---------------------------------------------------------------------------
\40\ The regulatory evaluation for the Minimum Standards for
Driver's Licenses and Identification Cards Acceptable by Federal
Agencies for Official Purposes Final Rule identifies the primary
benefit of REAL ID as improving security and lessening the
vulnerability of Federal buildings, nuclear facilities, and aircraft
to terrorist attacks. Department of Homeland Security, January 17,
2008, Regulatory Evaluation, Docket Number DHS-2006-0030. https://www.regulations.gov/document/DHS-2006-0030-10704. pgs. 129-130.
---------------------------------------------------------------------------
DHS did not select three, four, or five years because DHS believes
a time period longer than 2 years would further delay the security
benefits of REAL ID and is unlikely to provide the same incentive for
individuals to obtain a complaint DL/ID. DHS believes that 2 years
after the card-based enforcement deadline is a sufficient amount of
time for individuals to obtain and States to provide REAL ID-compliant
DL/IDs to any eligible individual who seeks to obtain one. DHS believes
that allowing more time for phased enforcement beyond 2 years is
unlikely to offer a meaningful additional opportunity for individuals
and States to take necessary action and could further delay the
security benefits of REAL ID. Additionally, allowing for phased
enforcement for more than 2 years may discourage individuals and States
from prioritizing necessary action.
Finally, to avoid any confusion about the ability of Federal
agencies to continue to accept noncompliant marked DL/IDs issued under
Sec. 37.71, the proposed rule would clarify that Federal agencies may
continue to accept these licenses past May 7, 2025, if they are doing
so pursuant to an enforcement plan coordinated with DHS. Although some
agencies may accept noncompliant marked DL/IDs for official purposes as
part of a phased enforcement plan, other agencies may choose not to
accept noncompliant marked DL/IDs as part of their phased enforcement
plan, may determine that phased enforcement is not appropriate, or
currently do not accept noncompliant marked DL/IDs for official
purposes.\41\ Individuals who need to visit a Federal facility should
check in advance whether the agency requires identification for access
purposes and, if they do, review the agency's access control policies.
---------------------------------------------------------------------------
\41\ For example, the U.S. Department of Defense (DoD) recently
finalized an update to its DoD-Wide installation security policy and
is in the process of no longer accepting noncompliant marked cards
across all of its facilities and installations.
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B. Consideration of Further Extending the Card-Based Enforcement
Deadline
As an alternative to the approach this rule proposes, DHS also
considered further extending the REAL ID card-based enforcement
deadline to allow for more time for the adoption rate to increase.
However, DHS believes that maintaining the deadline of May 7, 2025,
while providing agencies the flexibility to make a determination that
phased enforcement is appropriate will allow for a faster and smoother
transition to full card-based enforcement than another extension of the
deadline.
DHS prefers the approach proposed in this rule rather than an
extension for several reasons. First, by maintaining the current
deadline, agencies that do not determine that phased enforcement is
appropriate will immediately transition to full card-based enforcement
on May 7, 2025. This allows the security benefits of REAL ID to be
fully realized in contexts where full enforcement poses little risk of
creating other security risks, interfering with operational
feasibility, or disrupting public services. If the deadline is
extended, agencies that could immediately transition to full
enforcement are unlikely to do so before the new deadline, delaying
security benefits that would otherwise be available. DHS expects that a
significant number of agencies will begin full enforcement on the
deadline because doing so is appropriate within their operational
context.
Second, DHS believes that the approach provided by this rulemaking
is likely to have a positive impact on the REAL ID adoption rate, but
that an extension would not incentivize an increase in demand for REAL
ID-compliant DL/IDs. Because of the history of extensions related to
REAL ID enforcement, DHS expects that there is some confusion, lack of
awareness, and apathy associated with the May 7, 2025, deadline. Given
the prior history, DHS believes that the public may continue to expect
that additional extensions are likely and not feel urgency to obtain a
REAL ID until DHS demonstrates that another extension is unlikely.
Further, since the most recent extension in March 2023, DHS has
observed the rate of growth in adoption of compliant DL/IDs remains
very low (0.56 percent).\42\ As a result, DHS believes that further
extensions of the card-based enforcement date are not an effective
means of incentivizing changed behavior.
---------------------------------------------------------------------------
\42\ Supra note 26.
---------------------------------------------------------------------------
Instead, DHS expects that allowing agencies to enforce the May 7,
2025, deadline through a phased approach will incentivize increased
demand for REAL IDs in at least two ways. First, it will incentivize
increased adoption rates as the deadline approaches. In part due to
concerns related to low adoption rates, DHS has previously extended the
card-based deadline several months before the enforcement date,
limiting the effect of urgency to obtain a compliant DL/ID related to
the deadline. As the deadline approaches, and DHS does not issue an
extension, DHS expects individuals that were otherwise relying on
another extension to obtain a compliant DL/ID.
Second, DHS expects individuals who may not be aware of the
deadline to be incentivized to obtain a compliant DL/ID when they
experience the consequences of enforcement. During the phased
enforcement period individuals will experience varying levels of
consequences including warning notices and progressive enforcement (as
part of a phased enforcement plan), or full enforcement (where agencies
transition to full enforcement on the deadline). These consequences
will incentivize individuals who experience them to obtain a REAL ID.
Further, because the individuals who most frequently use their DL/ID
for REAL ID purposes will be the most likely to experience
consequences, DHS expects that phased enforcement will especially
incentivize increased adoption amongst this population. This will in
turn lessen the likelihood of disruption when agencies transition to
full enforcement because the individuals who most often use State-
issued DL/IDs for REAL ID official purposes will have been motivated to
obtain a REAL ID during the phased enforcement period. Additionally,
individuals may share their experience with personal contacts,
potentially incentivizing others to obtain a compliant DL/ID. DHS
expects that as awareness that REAL ID is being enforced becomes
widespread, individuals who intend to use their DL/ID for official
purposes will be motivated to obtain a compliant DL/ID.
C. Broad DHS Approach
This proposed rule represents one aspect of DHS' broad approach
towards transitioning to enforcement of the REAL ID requirements on May
7, 2025. Although this proposed rulemaking is critical to providing
agencies with the necessary flexibility to ensure a smooth transition
to full card-based enforcement, DHS is engaged in a number of efforts
to improve adoption rates. This layered approach includes heavy
engagement with States that have low REAL ID adoption rates, a public
advertising campaign raising awareness of upcoming REAL ID enforcement
and the benefits of obtaining a REAL ID,\43\
[[Page 74145]]
and engagement with the travel industry. This proposed rule, in
combination with these other efforts, works to lay the necessary
foundation for transitioning the nation to enforcement of REAL ID
requirements on May 7, 2025.
---------------------------------------------------------------------------
\43\ DHS Launches ``Be Your REAL ID Self'' Public Awareness
Campaign, January 15, 2021, https://www.dhs.gov/real-id/news/2021/01/15/dhs-launches-be-your-real-id-self-public-awareness-campaign.
---------------------------------------------------------------------------
D. Phased Enforcement Guidance
Under this proposed rule, agencies would have broad discretion to
determine the structure of their phased enforcement plan so long as
they comply with the requirements in the rule to:
(1) Make a determination that a phased enforcement plan is
appropriate in consideration of relevant factors including security,
operational feasibility, and public impact;
(2) Coordinate the phased enforcement plan with DHS;
(3) Make the phased enforcement plan publicly available on the
agency's web page; and
(4) Achieve full enforcement of the carb-based REAL ID requirements
no later than May 5, 2027.
The required coordination with DHS will provide DHS with visibility
on government-wide implementation of REAL ID as well as allow DHS to
serve in liaison role between agencies where there may be overlapping
equities. During the coordination process, DHS seek to provide agencies
guidance on how best to use their phased plan to transition to full
enforcement. DHS may offer feedback or suggestions related to an
agency's plan during this process. However, as long as agencies comply
with the proposed requirements in this rule, they would have broad
discretion to structure their plans.
As guidance to Federal agencies and to promote consistency, DHS
provides the below discussion and examples of enforcement models as
options agencies may consider if they determine that a phased approach
to REAL ID card-based enforcement on May 7, 2025, is appropriate. DHS
anticipates that informed compliance would be the enforcement model
best suited for most agencies that determine phased enforcement is
appropriate. Federal agencies that do not make a determination that
phased enforcement is appropriate and do not coordinate a phased
enforcement plan with DHS must begin full card-based enforcement on May
7, 2025. Under full card-based enforcement, Federal agencies may only
accept a State-issued DL/ID for official purposes if that DL/ID is
issued in accordance with REAL ID requirements by a REAL ID-compliant
State.
Informed Compliance Model. Under an informed compliance model,
agencies would provide written and verbal notice to any individual that
seeks to use a valid, unexpired, noncompliant DL/ID for an official
purpose on or after the card-based enforcement date of May 7, 2025.
Individuals would then be permitted to continue the process for
accessing a Federal facility or boarding a commercial aircraft. The
written notice agencies provide should inform the individual that their
DL/ID is noncompliant with REAL ID requirements, that they should
contact their DMV for further information regarding obtaining a REAL
ID, the date on which the agency will either begin fully enforcing REAL
ID requirements or will proceed to a subsequent enforcement phase, and
what to expect if the individual presents a noncompliant DL/ID and no
other acceptable form of identification after that date. An
accompanying verbal notice should briefly summarize the written
notification and, at a minimum, inform the individual they are not in
compliance with REAL ID requirements and direct the individual to
reference the written notice. Under this model, agencies would not
maintain a record of individuals who have presented a noncompliant DL/
ID and have been issued a notice. Individuals who present an alternate
acceptable form of identification (for example, a passport at the TSA
checkpoint) would not receive a noncompliance notification. Under this
model, agencies would continue to employ existing security and identity
verification processes to confirm the authenticity and validity of the
noncompliant DL/ID presented.
DHS has previously utilized an informed compliance model to balance
the need to begin enforcement of an identity verification-related
mandate while minimizing the impact of enforcement on commerce. DHS
effectively employed Informed Compliance as an enforcement mechanism
for 6 months after it began enforcing the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-
LU).\44\ SAFETEA-LU mandated that all foreign commercial hazardous
materials (hazmat) licensed drivers were required to pass a background
check that was comparable to that required under the USA PATRIOT Act
for U.S. commercial hazmat drivers. DHS determined that the background
check required to obtain the U.S. Customs and Border Protection Free
and Secure Trade (FAST) card was comparable to that required for U.S.
licensed commercial drivers. However, DHS estimated that at the start
of enforcement, a large number of drivers would not have accomplished
the background check process, and there was risk of significant impact
to cross-border commerce. DHS implemented a 6-month period of Informed
Compliance at the start of enforcement. At border checkpoints, foreign
commercial drivers who did not have the FAST background check were
provided a written notice that they were not in compliance and had
until a final enforcement date to achieve compliance, but were allowed
to drive in the United States in the interim. After the period of
Informed Compliance, drivers without the appropriate background check
were not allowed into the United States.
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\44\ Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users, Public Law 109-59, August 10, 2005.
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Informed Compliance with Limits. Under an Informed Compliance with
Limits model, agencies would limit the number of times an individual
may present a noncompliant DL/ID for an official purpose. Once an
individual exceeds the prescribed number of allowable attempts, they
would be denied the ability to use their noncompliant DL/ID for the
REAL ID official purpose (e.g., use the noncompliant DL/ID for purposes
of accessing a Federal facility) if they have no other acceptable form
of identification. Employing this model would likely create significant
requirements and obligations for the agency. Specifically:
1. The agency would collect personally identifiable information
(PII), including name, DL/ID State, and DL/ID number, as well as other
information necessary to identify and communicate reliably with the
individual. This PII would need to be collected, maintained, and used
in accordance with all applicable Federal guidelines and requirements
related to collection of PII. This may require agencies to obtain an
Office of Management and Budget (OMB)-approved Paperwork Reduction Act
(PRA) information collection and prepare a Privacy Impact Analysis,
System of Record Notice, and other documentation for collection,
storage, and use of PII.
2. The individual would attest that the PII provided is theirs and
accurate.
3. The agency would need to be able to demonstrate that they
delivered a notification of noncompliance to the individual (i.e.,
email, text, or other record of transmittal to address acknowledged by
individuals).
[[Page 74146]]
4. The agency would need to obtain the individual's acknowledgement
of receipt of the noncompliance notification at the time the individual
presents the noncompliant DL/ID.
5. The agency would need to develop a system to track the number of
instances the individual presented a noncompliant DL/ID and no other
acceptable ID (violations).
6. The agency would need to determine a limit on the number of
times an individual may be authorized access after presenting a
noncompliant DL/ID and no other acceptable form of identification.
7. The agency would need to define an appropriate period of time
(in days/weeks) during which the individual may continue to use a
noncompliant DL/ID for purposes of accessing the agency, after which
the applicant would be given another notification of noncompliance if
they again presented a noncompliant DL/ID (in other words, how long
individuals may continue to use their noncompliant DL/ID on the same
``strike'' before incurring a subsequent ``strike'').
Agencies would need to choose an appropriate time period during
which individuals can continue to use the noncompliant DL/ID without it
being treated as an additional instance of noncompliance (``strike'').
Agencies should choose a time period appropriate to their operations.
For agencies where the identity verification for official purposes is
rare or isolated, it may be appropriate to treat each time an
individual presents a noncompliant DL/ID as an instance of
noncompliance. However, DHS believes that in certain cases individuals
may need to use their DL/ID for a REAL ID official purpose for multiple
instances within a short period of time (e.g., boarding a return flight
from a destination or returning to a Federal facility to follow-up on
the purpose of the initial visit). Individuals may not be able to
obtain a REAL ID in between such related instances, so in these cases
agencies may choose a time period that allows for multiple uses of a
noncompliant DL/ID as part of the same instance of noncompliance. After
the allotted time period expires, the presentation of a noncompliant
DL/ID would be treated as another instance of noncompliance.
Agencies employing an Informed Compliance with Limitations model
should provide individuals who present a noncompliant DL/ID with
specific notice whenever an instance is being counted towards that
individual's limit. The notice should reference the agency's overall
policy and how the particular instance would affect the individual in
the future. Agencies may choose to adopt different nomenclature for
initial and subsequent instances of an individual presenting a
noncompliant DL/ID. DHS recommends that the language and consequences
of subsequent notifications under this model should progress in
seriousness. For example, assume an agency chooses to permit access on
the first two instances of noncompliance and deny access on the third
(and any subsequent instance). Agencies may choose to refer to the
notice issued to an individual presenting a noncompliant card for the
first time as a ``warning'' and a notice issued on a subsequent
instance counting against that individual's limit as ``counseling.''
Upon the third instance, the individual would be issued a ``final''
notification that their State-issued DL/ID is noncompliant and can no
longer be used for the REAL ID official purpose. The Federal agency
would deny access to the individual at that time and on all future
instances unless the individual obtains a REAL ID or presents an
alternative, acceptable form of identification.
DHS acknowledges that an Informed Compliance with Limitations
enforcement plan would likely demand significant agency resources. DHS
expects many agencies to begin full enforcement on the May 7, 2025,
deadline. Of the agencies that do determine a phased approach is
appropriate, DHS expects most will use a simple plan that provides a
time-limited warning period (i.e., ``Informed Compliance''). Given the
resources required, including the need for secure systems, DHS expects
very few agencies to choose an enforcement plan that tracks individual
instances of noncompliance.
Additional Considerations. Agencies may determine to implement a
phased approach that employs one of these models followed by full
enforcement. For example, an agency may choose to begin enforcement
with an Informed Compliance Phase or Informed Compliance with Limits
Phase for a set period of time (e.g., 3 months, 6 months, 1 year)
followed by a transition to full enforcement at the end of that period.
Alternatively, agencies may develop a plan that combines both models
before transitioning to full enforcement. For example, an agency may
begin enforcement with an initial Informed Compliance Phase for a set
period of time, followed by an Informed Compliance with Limits Phase
for an additional period of time, before beginning full enforcement.
Agencies would have the flexibility to determine the model(s) and
timing that best suit their operational environment.
Although DHS believes the models discussed above are likely to be
the most common and effective, they are not exclusive. Agencies may
develop plans based on other models. However, all phased enforcement
plans, whether based on the above models or a different model must be
coordinated with DHS and must conclude, and agencies must fully enforce
REAL ID card-based requirements, no later than May 5, 2027. For
agencies that make a determination that phased enforcement is
appropriate, the same factors that they considered to make that
determination should inform their determination of how to structure
their plan.
Finally, although REAL ID adoption rates should inform agencies
when developing their enforcement plans, agencies' plans should be
consistent across all States and territories. In other words, agencies
should have a consistent national policy and individuals should not be
subject to different consequences based on the adoption rate of a
particular jurisdiction. To reduce the potential for confusion, ensure
fair and equitable treatment of residents of all States, and ensure
operational consistency, agencies that have operations or facilities
spanning multiple States and territories should have one plan for all
their facilities. Agencies' plans may make distinctions based on the
types of facilities they operate (e.g., agencies may wish to begin full
enforcement at certain types of facilities but use a phased approach at
another type of facility) as long as the same policies apply to the
same types of facilities nationwide and treat all DL/ID holders
similarly. For example, agencies may choose to begin full enforcement
at their headquarters facility while implementing a phased approach at
field offices where the public more frequently seeks to use DL/IDs for
official purposes, but (in this example) the same phased enforcement
policy should apply to all field offices no matter where they are
located. Agencies should provide information regarding their plans on
their website and take other appropriate measures to inform the public
and provide notice regarding their plan.
DHS acknowledges that some agencies may maintain offices in or
conduct operations out of leased facilities or multi-tenant facilities
where the agency does not have direct control over the access control
policies of the facility. Agencies leasing space in their facilities to
other agencies and lead tenants as part of facility security
[[Page 74147]]
committees determining physical security polices for multi-tenant
facilities should develop plans that take into account the operations
of tenant agencies and potential public impact associated with those
operations when developing phased enforcement plans. As previously
discussed, agencies may make distinctions based on the types of
facilities they operate. Depending on the context, it may be
appropriate for an agency developing a phased enforcement plan to draw
a distinction between facilities that are shared by with agencies and
facilities that are used solely by the agency developing the plan.
IV. Regulatory Analyses
A. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DHS consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of 44 U.S.C. 3507(d), obtain approval from the OMB for each
collection of information it conducts, sponsors, or requires through
regulations. This proposed rule itself does not directly call for new
collection of information under the PRA as the rulemaking relates to
Federal agency submission of phased enforcement plans which are not
covered under the PRA. However, agencies that utilize a phased
enforcement plan, depending on the requirements associated with their
respective plan, may need to submit or modify an OMB information
collection request.
B. Economic Impact Analyses
1. Regulatory Impact Analysis Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order (E.O.) 12866 of October 4,
1993(Regulatory Planning and Review),\45\ as supplemented by E.O. 13563
of January 21, 2011 (Improving Regulation and Regulatory Review),\46\
and E.O. 14094 of April 6, 2023 (Modernizing Regulatory Review) \47\
directs each Federal agency 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)
requires agencies to consider the economic impact of regulatory changes
on small entities.\48\ Third, the Unfunded Mandates Reform Act of 1995
(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 ($183 million in 2023 dollars) or more annually (adjusted for
inflation).\49\
---------------------------------------------------------------------------
\45\ 58 FR 51735 (Oct. 4, 1993).
\46\ 76 FR 3821 (Jan. 21, 2011).
\47\ 88 FR 21879 (Apr. 11, 2023).
\48\ 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)).
\49\ Public Law 104-4, 109 Stat. 66 (Mar. 22, 1995) (codified at
2 U.S.C. 1181-1538).
---------------------------------------------------------------------------
2. Executive Orders 12866, 13563, and 14094 Assessment
Under the requirements of E.O. 12866, as amended by E.O. 14094,
agencies must 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). These requirements were supplemented by E.O. 13563, which
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
DHS summarizes the findings:
In accordance with E.O. 12866, the Office of Management
and Budget (OMB) has designated this rulemaking a ``significant
regulatory action'' as defined under section 3(f) of E.O. 12866, as
amended by E.O. 14094 but not significant under section 3(f)(1).
Accordingly, the proposed rule has been reviewed by OMB.
The Secretary, pursuant to 5 U.S.C. 605(b), certifies that
the proposed rule would not have a significant economic impact on a
substantial number of small entities. The proposed rule would only be
applicable to Federal Government agencies, who under the RFA are not
considered small entities.
This proposed rule is not likely to result in the
expenditure by State, local, or Tribal governments, in the aggregate,
or by the private sector, of $100 million ($183 million in 2023
dollars) or more annually (adjusted for inflation) such that a written
statement would not be required under UMRA.
a. OMB A-4 Statement
The OMB A-4 Accounting Statement presents the annualized costs and
benefits, as well as the qualitative benefits of the proposed rule.
Table 1--OMB Circular A-4 Accounting Statement
[$ millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimates Units
--------------------------------------------------------------------
Category Time Notes
Primary Low High Year Discount horizon
dollar rate (%) (years)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized......................... N/A N/A N/A N/A 2 N/A Not Quantified.
Annualized Quantified, But Non-Monetized..... N/A N/A N/A N/A 2 N/A Not Quantified.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unquantified................................. The proposed rule would provide Federal agencies flexibility to .....................................
decide whether to enforce the REAL ID card-based regulations in a
phased manner that may reduce security vulnerabilities,
operational disruption and public impact related to official
Federal purposes. A phased approach would not unnecessarily delay
REAL ID enforcement for those Federal agencies ready to fully
implement on the card-based enforcement deadline. A phased
approach would also allow individuals more time to obtain a REAL
ID and may help mitigate potential application backlogs at State
licensing agencies. Furthermore, a phased approach may reduce
potential queuing and associated delays at access points.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 74148]]
Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized......................... $0.87 N/A N/A 2023 2 2 .....................................
Annualized Quantified, But Non-Monetized..... N/A N/A N/A N/A 2 N/A Not Quantified.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unquantified................................. Full security benefits associated with REAL ID rule would not be .....................................
realized, as a result of agencies implementing a phased approach,
until full enforcement occurs. Federal agencies would also incur
costs related to plan implementation, including, but not limited
to training personnel on the policies of the plan, and efforts to
inform individuals of the new identity verification policies
related to plans. Individuals may also incur costs to become aware
of phased enforcement plans and respond accordingly.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized Federal Budgetary N/A N/A N/A N/A 2 N/A Not Quantified.
Transfers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
From/To...................................... From:
To:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other Annualized Monetized Transfers......... N/A N/A N/A N/A 2 N/A Not Quantified.
----------------------------------------------------------------------------------------------------------
From/To...................................... From:
To:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Net Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized Net Benefits............ N/A N/A N/A N/A 2 N/A Not Quantified.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects
--------------------------------------------------------------------------------------------------------------------------------------------------------
State, Local, and/or Tribal Government....... None .....................................
Small Business............................... None. .....................................
Wages........................................ None. .....................................
Growth....................................... Not measured. .....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
b. Need for Regulation
In January 2008, DHS published the Minimum Standards for Driver's
Licenses and Identification Cards Acceptable by Federal Agencies for
Official Purposes Final Rule to implement the requirements of the Act.
Since the publication of the original Final Rule, DHS extended the
original compliance date multiple times in response to challenges in
REAL ID adoption, including but not limited to, the COVID-19 pandemic.
In accordance with the Final Rule published in March 2023, Federal
agencies are required to commence card-based enforcement on May 7,
2025, at which point Federal agencies may not accept for official
purposes a license or identification card issued by a State unless that
license or card was issued in accordance with the REAL ID standards by
a REAL ID- compliant jurisdiction.\50\
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\50\ See 88 FR 14473 (Mar. 9, 2023), codified at 6 CFR 37.5.
---------------------------------------------------------------------------
DHS does not intend to extend the card-based enforcement deadline
further and intends to commence enforcement of the REAL ID card-based
requirements on May 7, 2025. However, based on current adoption rates
of REAL ID-compliant DL/IDs and the projected number of compliant DL/
IDs in circulation by the card-based enforcement date (discussed in the
succeeding section), DHS believes this proposed rulemaking is necessary
to provide flexibility to mitigate potential risks related to security,
operational feasibility, and public impact.
Without the flexibility the proposed rule permits, agencies may be
faced with serious concerns that immediate implementation of full
enforcement may create including security vulnerabilities, operational
challenges, and disruption of government services. For instance, there
could be cases where an agency needs to conduct work with a subject-
matter expert or specialist that does not have REAL ID-compliant
identification and is therefore unable to access the Federal facility.
Barring a phased enforcement plan, the agency may need to come up with
alternate accommodations, which could include holding meetings or
presentations offsite or standing up a virtual option. These options
may result in additional costs that would otherwise not be incurred if
the agency was operating under a phased enforcement plan. Additionally,
absent a phased enforcement plan, individuals without a REAL ID-
compliant DL/ID or acceptable alternative would be unable to board
federally regulated aircraft upon card-based enforcement. This
represents a large use case for REAL ID. These individuals would not be
able to use their noncompliant DL/ID to access the security checkpoint
which could result in backlogs and other negative outcomes on travel
(e.g., delayed or missed flights). This may also have a potential
impact on the customer experience and air travel. Long lines,
confusion, and frustrated travelers at the checkpoint may also increase
security risks.\51\ Given the current level of REAL ID adoption across
various States, the start of card-based enforcement may also create an
increased demand on States to issue
[[Page 74149]]
REAL IDs, which could result in strained resources and a potential
delay of application processing time or backlog. Additional disruptive
impacts to those who currently rely upon non-REAL ID-compliant DL/IDs
for official Federal purposes may also occur.
---------------------------------------------------------------------------
\51\ The requirements of the REAL ID Act and regulations
specifically apply to Federal agencies accepting DL/IDs for official
purposes. To the extent air carriers also require individuals to
present a compliant DL/ID for check-in or to drop off luggage, lines
and crowding may also occur at ticket counters and baggage drop-off
locations at airports. See U.S. Department of Homeland Security.
``Soft Targets and Crowded Places Security Plan Overview''. (May
2018). Available at https://www.cisa.gov/sites/default/files/publications/DHS-Soft-Target-Crowded-Place-Security-Plan-Overview-052018-508_0.pdf. Accessed on Apr. 17, 2024.
---------------------------------------------------------------------------
Federal agencies that determine an immediate transition to full
enforcement would raise concerns related to security, operational
feasibility, or negatively impact the public, would benefit from phased
enforcement, and would be able to implement a phased enforcement plan,
coordinated with DHS, to provide a smoother transition to full card-
based enforcement.\52\ This proposed rule would also enable these
agencies to minimize negative impact to individuals who do not have
REAL ID-compliant DL/IDs and provide States time to issue and
individuals time to obtain REAL ID-compliant DL/IDs during initial
phases of enforcement.
---------------------------------------------------------------------------
\52\ Card-based enforcement should not impact access to Federal
facilities that do not require identification (e.g., public areas of
the Smithsonian). Card-based enforcement also should not impact
public services that require identification for purposes other than
an official purpose as defined by the Act and regulation (e.g.,
applying for or receiving Federal benefits is not a REAL ID official
purpose). However, in cases where provision of a public service does
involve a REAL ID official purpose, agencies should consider the
extent to which an immediate transition to full enforcement would
impact their ability to provide that service.
---------------------------------------------------------------------------
TSA requests comments on the assumptions and estimates presented
within this economic impact analysis. 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.
c. Baseline Summary
The baseline represents DHS' best assessment of what the world
would be like absent this regulatory action.\53\
---------------------------------------------------------------------------
\53\ Office of Information and Regulatory Affairs. Circular No.
A-4. November 9, 2023. https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf. Accessed February 12, 2024.
---------------------------------------------------------------------------
In January 2008, DHS published the Minimum Standards for Driver's
Licenses and Identification Cards Acceptable by Federal Agencies for
Official Purposes Final Rule to implement the requirements of the REAL
ID Act of 2005.\54\ Since the publication of the Final Rule in 2008,
DHS has delayed the card-based enforcement date for REAL ID multiple
times due to various challenges that have prevented full enforcement
including, most recently, the COVID-19 pandemic. The last extension was
issued in March 2023, when DHS extended the card-based enforcement date
from May 3, 2023, to May 7, 2025.
---------------------------------------------------------------------------
\54\ 73 FR 5272, codified at 6 CFR part 37.
---------------------------------------------------------------------------
Absent this regulatory action, beginning on that date, all Federal
agencies would be prohibited from accepting non-REAL ID-compliant
State-issued DL/IDs for REAL ID official purposes.\55\ If an individual
does not have a REAL ID-compliant DL/ID, the individual may use another
acceptable form of identification as determined by individual agencies'
identity verification and access policies.\56\ In accordance with the
2008 Final Rule, enforcement on the card-based enforcement date would
be applied unilaterally, across all respective agency locations in the
United States and its territories including, accessing Federal
facilities, boarding federally regulated commercial aircrafts (i.e.,
TSA airport security checkpoints), and entering nuclear power plants.
---------------------------------------------------------------------------
\55\ The Act does not require individuals to present
identification where it is not currently required to access a
Federal facility (such as to enter the public areas of the
Smithsonian).
\56\ Alternate acceptable forms of identification may include,
and are not limited to, Enhanced Driver's Licenses (EDL), U.S.
passports, and passport cards.
---------------------------------------------------------------------------
DHS estimates that by the card-based enforcement date,
approximately between 61 and 66 percent of all State-issued DL/IDs
would be REAL ID-compliant based on adoption data provided by States,
to DHS, through January 2024.\57\ The lower-end values represent a
monthly adoption rate similar to current rates through card-based
enforcement. However, DHS expects that the adoption rate may also
increase ahead of the card-based enforcement date as a result of both
natural adoption prior to enforcement and efforts by DHS to drive
awareness and action. Ahead of the card-based enforcement deadline, DHS
plans to launch additional phases of its public service campaign ``Be
Your REAL ID Self'', which in part, provides toolkits for government
and industry partners. To account for this increased rate of adoption,
DHS uses a Compounded Monthly Growth Rate of 1.03 percent (compared to
a current 0.56 percent CMGR) for its higher-end value of 66 percent of
REAL ID compliant DL/IDs by the card-based enforcement date.
---------------------------------------------------------------------------
\57\ In section IV(B)(2)(d)(4), Forecast of REAL ID Compliance
Under Phased Enforcement, DHS estimates 61.2 percent of REAL ID
Compliant DL/IDs by applying a 0.56 percent compounded monthly
growth rate which represents the adoption of REAL IDs between
January 2023 and January 2024. This represents a lower-end forecast
where DHS assumes the monthly adoption rate of REAL IDs remains
unchanged leading up to the card-based enforcement date of May 7,
2025. DHS also presents a high-end forecast of 66.0 percent of REAL
ID compliant DL/IDs that uses a compounded monthly growth rate of
1.03 percent and represents the adoption of REAL IDs between January
2020 and January 2024 which captures periods of high and low
adoption of REAL IDs.
---------------------------------------------------------------------------
As a result, approximately between 34 percent and 39 percent of DL/
IDs in circulation would be non-compliant (either legacy or non-
compliant marked DL/IDs). Individuals with non-REAL ID-compliant DL/IDs
would not be permitted to use those DL/IDs to access Federal facilities
nationwide, including the security checkpoint at airports, unless they
are able to present an approved alternate form of identification such
as a passport.\58\
---------------------------------------------------------------------------
\58\ In 2008, DHS issued the Minimum Standards for Driver's
Licenses and Identification Cards Acceptable by Federal Agencies for
Official Purposes Final Rule. In the Regulatory Evaluation for the
Final Rule, DHS noted that 25 percent of the population already held
a valid passport and that in a few years' time the Department of
State anticipated that the figure would increase to approximately 33
percent. As of 2023, the Department of State reports that
160,668,889 valid passports (including passport books) are in
circulation. (https://travel.state.gov/content/travel/en/about-us/reports-and-statistics.html). Over the 10-year period of 2014 to
2023, approximately 13.24 percent of passports issued were passports
cards. The Department of State notes that one customer may also have
both a passport book and card which counts as two valid passports.
To prevent double counting for individuals that hold both a passport
book and a passport card, DHS multiplies 160,668,889 by 1 minus
13.24 percent to estimate 139,396,328 passports. Using the Census
Bureau's projected population for 2023, DHS estimates that
approximately 41 percent of the population has a passport. DHS
acknowledges that some percentage of individuals with REAL-ID
compliant DL/IDs may also hold a passport and thus there is
uncertainty with how many individuals with non-compliant IDs would
be able to use a passport as an alternate form of identification.
---------------------------------------------------------------------------
d. Adoption of REAL ID-Compliant DL/IDs
Prior to the onset of the COVID-19 pandemic in the United States in
October 2019, DHS estimated that approximately 33 percent, or 90.9
million of the 274.8 million DL/IDs in circulation, were REAL ID-
compliant.\59\ In April 2020, DHS issued an amended final rule to
further delay the card-based enforcement date from October 1, 2020, to
October 1, 2021. DHS noted that the COVID-19 pandemic had caused
significant disruption citing that State and local government offices,
including the DMV, have restricted all but the most essential services,
and that in some cases, had been temporarily closed to the public. In
October 2020, national REAL ID compliance was approximately
[[Page 74150]]
41 percent.\60\ Three years later, in October 2023, the national REAL
ID compliance rate increased to approximately 56 percent.\61\ Although
there has been a modest increase in the number of compliant REAL IDs,
the overall percentage as of January 2024 remains unchanged at 56
percent, with the remaining 44 percent of State-issued DL/IDs being
noncompliant.\62\
---------------------------------------------------------------------------
\59\ DHS began to collect data from the states including, total
number of DL/IDs, number of REAL IDs, number of non-compliant cards,
and number of ``legacy'' cards in July 2019. Monthly reporting
subsequently began in October 2019.
\60\ 41.08 Percent of REAL ID-compliant IDs in October 2020 =
112,807,718 REAL IDs / 274,611,013 Total IDs in Circulation.
\61\ 56.11 Percent of REAL ID-compliant IDs in October 2023 =
160,039,272 REAL IDs / 285,246,641 Total IDs in Circulation.
\62\ 56.42 Percent of REAL ID-compliant IDs in January 2024 =
162,111,658 REAL IDs / 287,321,596 Total IDs in Circulation.
---------------------------------------------------------------------------
However, individual State compliance includes a wider range of
rates. Table 2 presents REAL ID compliance over time based on the 56
licensing jurisdictions percentage of REAL IDs issued relative to the
total number of IDs in circulation for each jurisdiction. As shown in
the table, State compliance rates have generally increased over time.
For instance, the number of licensing jurisdictions where the
percentage of REAL IDs, relative to all DL/IDs in circulation, is
greater than 75 percent has increased from eight jurisdictions in
October 2019 to 17 in January 2024. Similarly, the number of licensing
jurisdictions where the percentage of REAL IDs, relative to all DL/IDs
in circulation, is less than 25 percent has decreased from 31 in
October 2019 to 9 in January 2024.
Table 2--REAL ID Compliance Over Time
----------------------------------------------------------------------------------------------------------------
Number of licensing jurisdictions
Range (REAL IDs as a percentage of total IDs in circulation ---------------------------------------------------
by jurisdiction) October October October January
2019 2020 2023 2024
----------------------------------------------------------------------------------------------------------------
0%-24%...................................................... 31 22 12 9
25%-49%..................................................... 11 15 16 18
50%-74%..................................................... 6 9 12 12
75%-100%.................................................... 8 10 16 17
----------------------------------------------------------------------------------------------------------------
1. Compounded Monthly Growth Rates (CMGR)
DHS began receiving monthly data on the number of REAL IDs for each
of the 56 licensing jurisdictions in October 2019 (and has monthly data
through early 2024). Using this data, DHS calculates the growth, or
increase, in number of REAL IDs month over month, relative to the total
number of DL/IDs in circulation. Using the historic adoption data, DHS
calculates CMGRs which represents growth over various intervals of
time. In subsequent sections, DHS uses CMGRs to forecast REAL ID
compliance.
In the first 6 months that DHS began to receive monthly data,
between October 2019 and March 2020, the CMGR of REAL IDs was
approximately 2.5 percent. Between April and May of 2020, the CMGR of
REAL IDs had decreased to 0.5 percent. The CMGR later increased to
approximately 2.0 percent between June 2020 and October 2020. Over the
next 3 years, the CMGR of REAL IDs was 1.3 percent between October 2020
and September 2021, 0.9 percent between October 2021 and September
2022, and 0.8 percent between October 2022 and September 2023. Over the
12-month period, between January 2023 and January 2024, the national
CMGR for the adoption of REAL IDs was 0.56 percent.\63\
---------------------------------------------------------------------------
\63\ 0.56 percent CMGR (January 2023 through January 2024) =
((162,111,658 REAL IDs in January 2024 / 151,652,714 REAL IDs in
January 2023) [caret] (1 / 12)-1).
---------------------------------------------------------------------------
2. Projection of Total Number of DL/IDs
DHS leverages monthly data received from the 56 licensing
jurisdictions to estimate the total number of DL/IDs in future months.
The report provides DHS with the total number of DL/IDs in circulation,
including the proportions of REAL-ID compliant, ``legacy'' cards, and
non-compliant cards. Based on the January 2024 data from the licensing
jurisdictions, there were 287,321,596 DL/IDs in circulation.
DHS uses this value as a starting overall DL/ID population. Next,
DHS leverages the U.S. Census Bureau's Monthly Population Estimates for
the United States to estimate the total U.S. population and proportion
with a DL/ID. DHS first estimates the total population using Census
Bureau annual population data to calculate a compound annual growth
rate (CAGR) of 0.60 percent in the U.S. population from 2012 to
2022.\64\ DHS divides the CAGR of 0.60 percent by 12 to calculate a
simple compound monthly growth rate (CMGR) of 0.05 percent. DHS then
uses Census Bureau monthly population estimates through December 2023,
and applies the simple CMGR of 0.05 percent to forecast the population
for each month through October 2027.\65\ DHS estimates a total
population of 355,966,451 in January 2024.
---------------------------------------------------------------------------
\64\ U.S. Census Bureau. (December 2019). Annual Estimates of
the Resident Population for the United States: April 1, 2010, to
July 1, 2019 (NST-EST2019-01). Retrieved from https://www.census.gov/data/tables/time-series/demo/popest/2010s-national-total.html. Accessed on May 12, 2023.
\65\ U.S. Census Bureau. (December 2023). Monthly Population
Estimates for the United States: April 1, 2020, to December 1, 2024
(NA-EST2023-POP). Retrieved from https://www.census.gov/data/tables/time-series/demo/popest/2020s-national-total.html. Accessed on
January 4, 2024.
---------------------------------------------------------------------------
Last, DHS divides the total number of DL/IDs by the total
population. As of January 2024, 85.5 percent of the population held a
driver's license or identification card.\66\ DHS assumes this
proportion of the population holds true through October 2027 (some
portion of the adult population may not need a DL/ID, along with most
of the population under the legal driving age). DHS multiplies the 85.5
percent proportion by the projected population each month to estimate
the total number of DL/IDs in circulation.
---------------------------------------------------------------------------
\66\ 85.5 percent of the population as DL/ID holders in January
2024 = 287,321,596 (DL/IDs in circulation as of January 2024) /
355,966,451 (total population in January 2024).
---------------------------------------------------------------------------
3. Forecast of REAL ID Compliance Under Status Quo
If full card-based enforcement, absent phased enforcement, were to
take place on May 7, 2025, DHS assumes that the adoption of REAL ID-
compliant DL/IDs would spike leading up to, and continuing for a period
of time past, the card-based enforcement date as individuals, who may
otherwise have held off on acquiring a REAL ID-compliant DL/IDs, would
take steps to ensure they would not be turned away from Federal
facilities where a REAL ID would be required for official purposes.
DHS assumes such a spike would be similar to a 23 percent increase
that the Department of State experienced after
[[Page 74151]]
implementation of the first phase of the Western Hemisphere Travel
Initiative (WHTI).\67\ Specifically, in fiscal year 2007, the
Department of State experienced an influx of passport applications
prior to, and after, the implementation of its first phase of the WHTI,
which established new document requirements for travelers entering the
United States from within the Western Hemisphere at airports of entry.
At the time, the Department of State forecasted it would receive
approximately 15 million passport applications in the 2007 fiscal year,
however, it ended up receiving approximately 18.6 million passport
applications, an approximate 23 percent increase over the original
estimate.\68\
---------------------------------------------------------------------------
\67\ The populations affected by WHTI and REAL ID, while not
exact, are similar in the sense that both initiatives affect
identity documentation required by the traveling public and are not
intended to represent the population of those who are obtaining
government services. DHS believes WHTI represents a situation
similar enough to REAL ID to serve as a proxy absent better
information, but also requests public comment on this estimate.
\68\ Government Accountability Office (GAO). (July 2008). State
Department: Comprehensive Strategy Needed to Improve Passport
Operations. GAO-08-891, page 16. Retrieved from https://www.gao.gov/assets/gao-08-891.pdf. Accessed on March 15, 2024.
---------------------------------------------------------------------------
As aforementioned, in January 2024, 56.42 percent or 162.1 million
of the 287.3 total IDs in circulation are REAL ID-compliant. Based on
the data range of January 2023 through January 2024, DHS expects that
through April 2024, the 0.56 percent CMGR for the adoption of REAL IDs
to remain unchanged,\69\ bringing the percentage of REAL IDs relative
to all IDs in circulation to 57.3 percent. In the year leading up to
the card-based enforcement deadline, DHS considers a similar situation
as the influx of passports leading up to, and through, the
implementation of WHTI, and applies a 23 percent increase in the
adoption of REAL IDs (equivalent to a CMGR of 1.61 percent).\70\ Using
this methodology, by May 2025, approximately 70 percent or 202.7
million of the total 289.6 million IDs in circulation would be REAL-ID
compliant.71 72 DHS requests public comment on the
assumptions related to the forecast of REAL ID compliance under the
status quo, including the estimate and duration of the spike in REAL ID
compliance.
---------------------------------------------------------------------------
\69\ See footnote 63.
\70\ Based upon the WHTI scenario, DHS assumes a 23 percent
increase to the total number of REAL IDs in April 2024 (164,837,213
REAL IDs), approximately one-year prior to card based enforcement.
TSA assumes the 23 percent increase will be spread across the 13
months leading up to card-based enforcement on May 7, 2025.
202,749,772 REAL IDs in May 2025 = 164,837,213 REAL IDs in April
2024 x (1 + 23 Percent). Since the 23 percent increase is spread out
over the year leading up to the card-base enforcement date, DHS uses
the resulting number of REAL IDs in May 2025 to calculate a 1.61
Percent CMGR. 1.61 Percent CMGR = (202,749,772 REAL IDs in May 2025
/ 164,837,213 REAL IDs in April 2024) [supcaret] (1 / 13)-1).
\71\ 70.00 Percent of REAL IDs in May 2025 = 202,749,772 REAL
IDs in May 2025 / 289,641,636 IDs in Circulation in May 2025.
\72\ Under the status quo, which would result in full, and
immediate, card-based enforcement on May 7, 2025, DHS estimates a 23
percent increase in the adoption of REAL IDs in the year leading up
to card-based enforcement, adopted based on the implementation of
WHTI. Absent this influx, and under Phased Enforcement beginning May
7, 2025, DHS evaluates two scenarios in section IV(B)(2)(d)(4),
Forecast of REAL ID Compliance Under Phased Enforcement. First, a
lower estimate which assumes no changes to the 0.56 percent CMGR
which results in 61.2 percent of all DL/IDs in May 2025 being REAL
ID compliant. Second, a higher estimate which uses a 1.03 percent
CMGR resulting in 66 percent of all REAL DL/IDs being REAL ID
compliant in May 2025.
---------------------------------------------------------------------------
Following the card-based enforcement date, DHS expects the spike to
remain in place for approximately 4 to 5 months as individuals work to
secure appointments with their local DMV.\73\ DHS applies the 1.61
percent CMGR to estimate the percentage of REAL IDs in October 2025.
DHS estimates approximately 75 percent of DL/IDs in circulation would
be REAL ID-compliant.\74\
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\73\ The WHTI was implemented in two phases with the second
impacting land and seaports beginning at the end of January 2008
(2008 fiscal year). As such, following the initial spike in passport
applications within fiscal year 2007, the Department of State also
issued a higher than historical number of passports in fiscal year
2008 despite the total number of passports issued being lower than
the preceding year. (Department of State. Reports and Statistics.
U.S. Passports Issued Per Fiscal Year (1996-2023). Retrieved from
https://travel.state.gov/content/travel/en/about-us/reports-and-statistics.html. Accessed on March 15, 2024.) Absent the proposed
rule, following the card-based enforcement date, full enforcement
would begin so there would be no similar resurgence as seen with
WHTI implementation. However, a similar spike may be seen with the
implementation of the phased enforcement rule. Under which,
following the initial spike, there would likely be a decrease in
adoption rates, before a second spike leading up to the May 2027
full compliance date.
\74\ 75.09 Percent of REAL IDs Compliant in October 2025 =
218,052,964 REAL IDs in October 2025 / 290,370,483 IDs in
Circulation in October 2025.
---------------------------------------------------------------------------
To forecast beyond October 2025, under the status quo of full
enforcement beginning May 2025, DHS assumes a 50-percent decrease of
the initial spike in the adoption of REAL IDs between October 2025 and
October 2026 but requests public comment on the duration and level of
decrease in the months following card-based enforcement.\75\ DHS
estimates that by October 2026, one and a half years after the card-
based enforcement deadline, approximately 83 percent of DL/IDs in
circulation would be REAL ID-compliant.\76\ Subsequently, to estimate
the percentage of REAL IDs relative to all DL/IDs in circulation, 2
years after the card-based enforcement date, DHS assumes an additional
50-percent decrease in the adoption of REAL IDs between October 2026
and October 2027.\77\ Under this assumption, DHS estimates that
approximately 87 percent of DL/IDs would be REAL ID-compliant by
October 2027.\78\
---------------------------------------------------------------------------
\75\ 11.5 Percent Increase in REAL IDs (One Year After Card-
Based Enforcement) = (23 Percent Initial Surge / 2) x 100.
Equivalent to a 0.91 Percent CMGR. 0.91 Percent CMGR = ((243,121,919
REAL IDs in October 2026 / 218,052,964 REAL IDs in October 2025)
[supcaret] (1 /12)-1).
\76\ In the Regulatory Evaluation for the 2008 Final Rule, DHS
assumed 75 percent of the population that hold DL/IDs would seek to
obtain a REAL ID. DHS describes this assumption further in the
subsequent section, however, the 83 percent compliance rate by
October 2026, roughly over one-and-a-half-years post card-based
enforcement exceeds the 75 percent assumption. DHS notes that the
adoption rate for REAL ID may decrease when REAL ID reaches a
natural adoption threshold.
\77\ 5.75 Percent Increase in REAL IDs = (11.5 Percent Initial
Surge / 2) x 100. Equivalent to a 0.47 Percent CMGR. 0.47 Percent
CMGR = ((257,101,923 REAL IDs in October 2027 / 243,121,919 REAL IDs
in October 2026) [supcaret] (1 /12)-1).
\78\ Supra note 76.
---------------------------------------------------------------------------
DHS assumes that once the percentage of REAL IDs, relative to all
DL/IDs in circulation reach a natural adoption threshold or equilibrium
\79\ (with all those who want/need a REAL ID largely have them or an
alternate form of identification), which DHS currently assumes as 75
percent, the increase in the proportional value over subsequent months
and years would be minimal.\80\ In 2008, DHS issued the Minimum
Standards for Driver's Licenses and Identification Cards Acceptable by
Federal Agencies for Official Purposes Final Rule. The NPRM included
DHS's previous assumption that 100 percent of the population that hold
DL/IDs would seek to obtain a REAL ID. However, in the 2008 Final Rule,
the assumption was revised to 75 percent.\81\ DHS noted that
[[Page 74152]]
the 100 percent assumption was unrealistic if States do not require all
applicants to obtain REAL IDs. DHS further cited, that if States offer
a choice of either compliant or non-compliant licenses to applicants,
that some portion of the population would choose to receive non-
compliant licenses because they may not need a REAL ID for [Federal]
official purposes or they may already possess a compliant alternate
form of identification.\82\ While DHS maintains the 75 percent
assumption from the 2008 Final Rule, DHS acknowledges the uncertainty
and that the natural threshold for REAL ID compliance may be above or
below 75 percent.
---------------------------------------------------------------------------
\79\ The natural adoption threshold or equilibrium is the
estimated proportion at which TSA assumes most people who want a
REAL ID largely have them, and it is unlikely to change much in the
absence of any changes in conditions. This accounts for some portion
of the population that chooses not to obtain a REAL ID (as States
continue to offer non-compliant DL/IDs).
\80\ DHS anticipates future renewal surges associated with
existing REAL-ID holders, and additional initial adoptions
associated with population growth.
\81\ In 2008, DHS noted that approximately 25 percent of the
population held a valid passport. Furthermore, DHS noted that 20
percent of the population has never flown on a commercial plane, and
47 percent flies rarely or never. Combining the two groups, at least
40 percent of the population would not need to obtain a REAL ID.
However, DHS assumed some proportion of the combined grouping would
obtain a REAL ID regardless, reducing the estimate to 25 percent.
Subtracting this 25 percent estimate from the initial 100 percent
assumption results in 75 percent that would obtain a REAL ID.
\82\ Department of Homeland Security. April 28, 2008. Regulatory
Evaluation for REAL ID Program. Docket DHS-2006-0030. https://www.regulations.gov/document/DHS-2006-0030-10704.
---------------------------------------------------------------------------
In subsequent sections, DHS refers to the 75 percent assumption as
the 75 percent threshold. The threshold represents an assumed natural
point where REAL ID adoption would slow and essentially not grow in
proportion as all those willing to get a REAL ID have done so. While
DHS assumed this value to be approximately 75 percent, the actual rate
could be higher or lower.\83\
---------------------------------------------------------------------------
\83\ DHS believes there is a greater likelihood of the actual
REAL ID threshold being greater than 75 percent rather than lower
than 75 percent.
---------------------------------------------------------------------------
4. Forecast of REAL ID Compliance Under Phased Enforcement
To estimate the percentage of REAL ID-compliant DL/IDs by the card-
based enforcement date, May 7, 2025, DHS uses the 0.56 percent CMGR
estimated from January 2023 to January 2024.\84\ Next, DHS applies the
0.56 CMGR over the next 16 months to forecast the percentage of REAL
IDs in circulation by May 2025, relative to all IDs in circulation.\85\
Using this methodology, DHS estimates that approximately 61 percent of
all IDs in circulation would be REAL ID-compliant by the card-based
enforcement date.
---------------------------------------------------------------------------
\84\ Supra note 76.
\85\ 16 months between January 2024 and May 2025 (card-based
enforcement begins).
---------------------------------------------------------------------------
The aforementioned methodology assumes that the next 16 months
would be similar to the trends seen over the last year.\86\
Accordingly, DHS provides an alternate forecast on the percentage of
REAL ID-compliant DL/IDs in May 2025 using the 1.03 percent CMGR for
the adoption of REAL ID over last 4-years.\87\ DHS applies the 1.03
percent CMGR over the 16 months between January 2024 and May 2025 to
forecast that approximately 66 percent of IDs in circulation by May
2025 would be REAL ID-compliant by the card-based enforcement date.
---------------------------------------------------------------------------
\86\ DHS acknowledges that there is a level of uncertainty with
compliance rates. For instance, closer to the card-based enforcement
date, the adoption rate may increase. Furthermore, the proposed
rule, and by extent, subsequent phased enforcement plans adopted by
some agencies may provide individuals additional time to become
compliant and thus result in lower or stagnant adoption rates.
\87\ 1.03 percent CMGR (January 2020 through January 2024) =
((162,111,658 REAL IDs in January 2024 / 99,076,573 REAL IDs in
January 2020) [supcaret] (1 / 48)-1). DHS uses the last 4 years of
data reported by all licensing jurisdictions to represent a more
comprehensive timeframe, capturing periods of high and low adoption
of REAL IDs.
---------------------------------------------------------------------------
Using the aforementioned CMGRs, 0.56 percent and 1.03 percent, DHS
estimates that approximately 61 percent (lower-end of forecast) and 66
(upper-end of forecast) of all DL/IDs in circulation by May 2025 would
be REAL ID-compliant, respectively. Table 3 reflects the forecasted
number of REAL IDs using the two CMGR described in this section.
Table 3--Forecasted Number, and Percentage of, REAL IDs in May 2025
----------------------------------------------------------------------------------------------------------------
Last 12 month trend Last 4 year trend (1.03
(0.56 percent CMGR) percent CMGR)
----------------------------------------------------------------------------------------------------------------
Approx. IDs in Circulation.................................... 289,641,636
-------------------------------------------------
Forecasted Number of REAL IDs................................. 177,187,465 191,027,256
REAL IDs as a Percentage of All IDs........................... 61.2% 66.0%
----------------------------------------------------------------------------------------------------------------
As shown in table 3, under both the 0.56 percent CMGR and the 1.03
percent CMGR, the forecasted percentage of REAL IDs relative to all DL/
IDs in circulation for May 2025, 61.2 percent and 66.0 percent,
respectively, falls below the 2008 assumption that 75 percent of all
holders would seek to obtain a REAL ID. In table 4, DHS illustrates the
breakdown of how many DL/IDs would need to be REAL ID-compliant by the
card-based enforcement date to meet the 75 percent threshold. Applying
the 75 percent assumption from the 2008 Rule results in approximately
217.2 million of the 289.6 million IDs in circulation, in May 2025,
would be REAL ID-compliant. As shown, in addition to the 25 percent of
DL/IDs in circulation that DHS assumes would be non-compliant, an
additional 40.0 million and 26.2 million DL/IDs that would have been
assumed to be REAL ID-compliant, respectively, would not be able to be
used for official purposes beginning May 7, 2025.
Next, DHS estimates the CMGR needed to reach the 75 percent of REAL
ID-compliant licenses and identification cards by the card-based
enforcement date using the January 2024 national compliance rate for
REAL ID of 56 percent. In the sixteen months between January 2024 and
May 2025, the average monthly CMGR for the adoption of REAL ID would
need to increase to 1.85 percent.\88\
---------------------------------------------------------------------------
\88\ 1.85 percent CMGR = ((217,231,227 REAL IDs to Achieve 75
Percent Threshold in May 2025 / 162,111,658 REAL IDs in January
2024) [supcaret] (1 / 16)-1).
Table 4--Number of REAL IDs in May 2025 To Achieve 75 Percent Threshold
----------------------------------------------------------------------------------------------------------------
Last 12 month trend Last 4 year trend (1.03 75% Assumption (1.85
(0.56 percent CMGR) percent CMGR) percent CMGR)
----------------------------------------------------------------------------------------------------------------
Approx. IDs in Circulation........... 289,641,636
--------------------------------------------------------------------------
Number of REAL IDs Needed to Achieve
75% Threshold....................... 217,231,227 (75.0%)
--------------------------------------------------------------------------
DHS Forecasted REAL IDs.............. 177,187,465 (61.2%) 191,027,256 (66.0%) 217,231,227
[[Page 74153]]
Difference Between Threshold and 40,043,762 (13.8%) 26,203,971 (9.0%) 0 (0.0%)
Forecasted..........................
----------------------------------------------------------------------------------------------------------------
Next, DHS uses two scenarios to forecast the national compliance
rate following the card-based enforcement date. First, DHS assumes the
61.2 percent and 66.0 percent REAL ID adoption trends presented in
table 3 remain unchanged after the start of card-based enforcement.
Under this scenario, two years after card-based enforcement, in May
2027, which is when phased approach plans would need to commence full
enforcement by, the national REAL ID rate would be 69.1 percent and
83.4 percent.\89\
---------------------------------------------------------------------------
\89\ The 83.4 percent compliance rate by May 2027, 2 years after
the card-based enforcement deadline, exceeds the 75 percent
assumption from the 2008 Regulatory Evaluation. DHS notes that the
adoption rate for REAL ID may dampen as it approaches or starts to
exceed 75 percent of the population.
---------------------------------------------------------------------------
Following the card-based enforcement date, DHS expects a change in
the rate of adoption. Phased enforcement plans could result in REAL ID
compliance being spread over time compared to continued increases in
compliance if full card-based enforcement went into effect across all
agencies. Phased enforcement may also incentivize some portion of the
public to obtain a REAL ID as DHS begins card-based enforcement in May
2025 without further extensions and as non-compliant DL/ID holders
attempt to use non-compliant identification for official purposes
during the period of phased enforcement. For this second scenario, DHS
uses the midpoint of the two CMGRs (0.56 percent and 1.03 percent) used
to estimate the national REAL ID rate in May 2025 to estimate the
national REAL ID rate after the card-based enforcement date. Using this
methodology, DHS calculates a 0.79 percent CMGR which would likely
capture a balance between potential high and low adoption rates for
REAL IDs.\90\ Next, DHS applies the 0.79 percent CMGR to the 61.2
percent and 66.0 percent estimates for May 2025. Two years after the
commencement of card-based enforcement, by May 2027, DHS estimates
approximately 73.1 percent and 78.8 percent of DL/IDs issued would be
REAL ID-compliant, respectively.\91\ Depending on the scenario, the 75
percent threshold may be reached as early as July 2026. However, under
a lower CMGR, in which the CMGR stays at 0.56 percent, the 75 percent
threshold may not be reached until October 2028.
---------------------------------------------------------------------------
\90\ 0.79 Percent CMGR = (0.557 Percent CMGR (Last Twelve
Months) + 1.031 Percent CMGR (Last 48 Months)) / 2.
\91\ In the Regulatory Evaluation for the 2008 Final Rule, DHS
assumed 75 percent of the population that hold DL/IDs would seek to
obtain a REAL ID. However, the 78.8 percent compliance rate by May
2027, roughly 2 years post card-based enforcement exceeds the 75
percent assumption. DHS notes that the adoption rate for REAL ID may
decrease when REAL ID reaches a natural adoption threshold.
---------------------------------------------------------------------------
5. Summary of REAL ID Compliance
Table 5 describes the proportion of all DL/IDs that are REAL ID-
compliant under the baseline scenario and phased enforcement at 6-month
intervals leading up to, and after, the card-based enforcement date. In
the baseline scenario, as discussed in section IV.B.2.d.3, DHS assumes
a spike in REAL ID compliance in the year leading up to the card-based
enforcement date (1.61 percent CMGR). DHS then assumes a reduction in
the CMGR to 0.91 percent from October 2025 to October 2026 and to 0.47
percent after October 2026. This accounts for anticipated increases
leading up to and through enforcement including natural adoption prior
to a deadline, additional informational campaigns, and increased
incentives for those without REAL ID compliant DL/IDs that would be
denied when using non-compliant DL/IDs for official purposes.
DHS also presents two phased enforcement scenarios that each
include a lower and upper bound range, as discussed in section
IV.B.2.d.4. Under the first phased enforcement scenario, DHS assumes
trend growth rates remain the same before and after the card-based
enforcement date (0.56 percent CMGR for the lower bound estimate, 1.03
percent CMGR for the upper bound estimate). This scenario assumes no
change in identified trends leading up or after enforcement where the
lower value represents current adoption rates (unchanged) and the
higher value accounts for enforcement and phased enforcement impacts on
adoption rates. Under the second phased enforcement scenario, DHS
assumes the 0.56 percent CMGR for the lower bound estimate and 1.03
percent CMGR for the upper bound estimate up to the card-based
enforcement date. After the card-based enforcement date, DHS assumes a
change in the CMGR to 0.79 percent, the midpoint of the lower bound and
upper bound trend rates to represent possible changes in behavior post
enforcement date. Specifically, that in the lower end, more individuals
will get REAL DL/IDs and on the higher end, less will seek REAL DL/IDs.
However, DHS acknowledges there is a level of uncertainty with such
adoption rates and seeks public comment on anticipated adoption and
compliance rate impacts.
Table 5--REAL ID Compliance by Scenario
----------------------------------------------------------------------------------------------------------------
Phased enforcement scenario 1 Phased enforcement scenario 2
(constant rates) (post enforcement change)
Month Baseline ---------------------------------------------------------------
Lower bound Upper bound Lower bound Upper bound
(%) (%) (%) (%)
----------------------------------------------------------------------------------------------------------------
May 24.......................... 58.2 57.6 58.7 57.6 58.7
Nov 24.......................... 63.8 59.3 62.2 59.3 62.2
May 25.......................... 70.0 61.2 66.0 61.2 66.0
Nov 25.......................... 75.7 63.1 69.9 64.0 69.0
May 26.......................... 79.7 65.0 74.1 66.9 72.1
Nov 26.......................... 83.6 67.0 78.6 69.9 75.4
[[Page 74154]]
May 27.......................... 85.7 69.1 83.4 73.1 78.8
----------------------------------------------------------------------------------------------------------------
The baseline and phased enforcement scenarios present different
trade-offs. Under the baseline scenario, the REAL ID compliance rate
grows and increases more quickly as a result of more rapid surges in
adoption. Such a surge in application for REAL IDs, may lead to
potential backlogs at State DMVs and provide individuals reduced
options after the enforcement date (e.g., denied DL/ID use for official
purpose). This may serve as a strong motivator but may also have
negative consequences (e.g., not allowed to board a commercial flight
for a critical matter).
Under a phased approach, DHS forecasts a slower adoption of REAL
ID, as compared to the baseline, with compliance increases being spread
over the two-year phased enforcement period. This approach provides
individuals more time to obtain a REAL compliant DL/ID and allows
individuals who possess non-compliant DL/IDs to use such DL/IDs for
official purposes while also creating opportunities for enforcement
mechanisms (e.g., warnings) that may serve to incentivize the public to
obtain a REAL ID without, or reduced, negative consequences.
DHS notes that differences in compliance rates between the baseline
and scenarios could have large impacts. For example, TSA screens
approximately 2.5 million passengers a day.\92\ If one percent of those
passengers were to present a noncompliant DL/ID at a checkpoint, it
would result in 25,000 passengers being unable to use the noncompliant
DL/ID at the checkpoint in just a single day. If this was extrapolated
out a week the number increases to 175,000, then 750,000 in a month and
2,250,000 in three months all of which may result in operational and
security concerns. DHS recognizes TSA is a large use case, but impacts
on a smaller scale could also apply to other Federal agencies. In any
scenario, DHS believes a phased enforcement approach would help reduce
challenges that large numbers of non-compliant DL/ID holders could
present compared to full and immediate enforcement under the baseline.
---------------------------------------------------------------------------
\92\ Transportation Security Administration. (n.d.). TSA
checkpoint travel numbers (current year versus prior year/same
weekday). Passenger Volumes. Retrieved from: https://www.tsa.gov/travel/passenger-volumes. Accessed on August 1, 2024.
---------------------------------------------------------------------------
a. Phased Enforcement Population
Under the REAL ID Act and regulations, on and after the card-based
enforcement date, Federal agencies are prohibited from accepting non-
REAL ID-compliant DL/IDs for official purposes. The rulemaking would
allow Federal agencies to implement the card-based enforcement
requirement of the REAL ID Act and regulations under a phased approach
if the agency determines a significant security or operational risk, or
if public services offered by the agency would be impacted with full
enforcement. Federal agencies that opt to do so must coordinate a plan
with DHS. After coordination of a plan with DHS, a Federal agency may
continue to accept non-REAL ID-compliant licenses and IDs on and after
May 7, 2025, as part of a phased enforcement plan. To ensure that
agencies' enforcement plans appropriately advance the objectives of the
REAL ID regulations, this proposed rule would require agencies' plans
to include measures for full card-based enforcement by May 5, 2027.
Based on agency information in the Federal Register, DHS estimates
there are 434 Federal agencies, including cabinet-level departments,
who may require REAL IDs for official Federal purposes.\93\ To estimate
the number of Federal agencies that would submit a phased enforcement
plan under this rulemaking, DHS considers three factors; (1) agencies
that are on track to not accept noncompliant marked cards on, or
before, the card-based enforcement date; (2) agencies that do not
typically require forms of identification for official purposes (e.g.,
to be presented for entry); and (3) DHS' monthly engagements with
Federal stakeholders.
---------------------------------------------------------------------------
\93\ Federal Register. Retrieved from https://www.federalregister.gov/agencies. Accessed on May 10, 2023.
---------------------------------------------------------------------------
Agencies on Track To Not Accept Noncompliant Marked Cards on or Before
the Card-Based Enforcement Date
First, each Federal agency has the authority to set its own minimum
security access requirements and, if desired, can decide not to accept
noncompliant marked cards before the card-based enforcement date. For
example, the U.S. Department of Defense (DoD) finalized an update to
its DoD-wide installation security policy and is in the process of no
longer accepting noncompliant marked cards across all of its facilities
and installations.\94\ DHS assumes Federal agencies on track to
implement enforcement by the effective date, are more likely to not
pursue a phased enforcement plan.
---------------------------------------------------------------------------
\94\ DoD will continue to accept state-issued noncompliant
unmarked ``legacy'' cards until the May 7, 2025, deadline.
Department of Homeland Security. REAL ID Frequently Asked Questions.
Retrieved from https://www.dhs.gov/real-id/real-id-faqs. Accessed on
August 2nd, 2024.
---------------------------------------------------------------------------
Agencies That Do Not, or Do Not Typically, Require Forms of
Identification To Be Displayed for Entry
Each facility makes a risk-based decision to determine if a form of
identification is needed for entry, and if so, which forms would be
accepted. For instance, an agency may require identification as part of
their overall security strategy including, but not limited to, checking
the individual against a checklist, or to verify that the individual is
on an invitation or approved visitors list. If an agency only requires
an individual to present a form of identification solely to record the
individual's presence as opposed to for screening and access purposes,
the requirements under the REAL ID Act of 2005 would not apply.
There are agencies that do not typically require forms of
identification for official purposes or only experience of low volume
of such interactions. A key factor in an agency's consideration may be
the number of individuals that enter, or pass through, the Federal
facility in a given day. For some Federal agencies, access to certain
areas of the facility is presently granted without the
[[Page 74155]]
need for an individual to present a form of identification for entry.
For instance, the public areas of the Smithsonian and the National Park
Service (NPS). While the Smithsonian and NPS would still be required to
enforce REAL ID requirements on the card-based enforcement date, the
enforcement would be limited to the individuals attempting to access
the non-public areas. Presumably, as the number of individuals to this
restricted entry area are significantly fewer than the daily number of
visitors to Smithsonian facilities and National Parks, agencies like
the Smithsonian and NPS may not need to submit phased enforcement plans
due to limited security or operational risks.
DHS' Monthly Engagements With Federal Stakeholders
In Fall 2023 and the first quarter of 2024, DHS began hosting
monthly stakeholder engagement sessions with Federal agencies. During
these sessions, DHS briefed agencies regarding the card-based
enforcement date and the proposed rulemaking to allow agencies the
option for a phased approach if they determine such a plan is
appropriate. Through hosting the sessions, DHS was able to establish a
greater understanding, across the Government, on which agencies may
consider a phased approach based on security, operational, or public
impact risks associated with full enforcement. For instance, some
agencies noted that they would follow guidance put forth by their
cabinet-level department. Of the sample of agencies invited,
approximately 63 percent attended one or more stakeholder meetings.
Based on feedback from agencies and recurring attendance over months,
DHS assumes that 50 percent of agencies that attended one or more
meetings would pursue a phased enforcement plan.
Based on these three factors, DHS assumes that of the 434 Federal
agencies, 96 percent would not submit a phased enforcement plan. As
such, these agencies would join the Department of Defense and begin
full card-based enforcement on May 7, 2025. While individuals would
need to present a REAL-ID compliant identification or an approved
alternate identification for official purposes from that date forth;
based on engagements with DHS subject matter experts (SMEs) and Federal
agencies, the vast majority of agencies do not handle a significant
volume, on a daily basis, of individuals required to present REAL ID
for official Federal purposes.\95\
---------------------------------------------------------------------------
\95\ DHS notes that most Federal employees and contractors have
existing access to their respective facilities via employee
identification/access cards and would not require separate
submission of a REAL ID for access.
---------------------------------------------------------------------------
DHS assumes that the remaining 4 percent of Federal agencies would
develop and coordinate phased enforcement plans with DHS. The majority
of such plans are anticipated to represent a low-to-medium use case
(e.g., visitor access to a facility) with TSA representing a high-use
case given the volume of individuals boarding federally regulated
commercial aircraft per day.\96\
---------------------------------------------------------------------------
\96\ TSA presents a unique and the largest use case for REAL ID
enforcement. Each day, the agency screens over two million
passengers at airport security checkpoints across the United States
and its territories.
TSA Checkpoint Travel Numbers (Current Year Versus Prior
Year(s)/Same Weekday). https://www.tsa.gov/travel/passenger-volumes.
Accessed August 18, 2023.
---------------------------------------------------------------------------
b. Cost of the Proposed Rule
The following summarizes the estimated costs of the proposed rule
over a 2-year period of analysis. Specifically, impacts are evaluated
between 2024 and 2025 to align with agency efforts to develop a phased
enforcement plan prior to the current card-based enforcement date.
Federal agencies would incur costs to familiarize themselves with
the proposed rule, assess whether to implement a phased enforcement
plan, and if so, develop a plan. DHS, as the agency administering the
REAL ID program, would incur costs to coordinate with Federal agencies
that voluntarily implement a phased enforcement plan.
Compensation Rates
DHS estimates the labor-related costs for DHS and other Federal
agencies. First, DHS uses the GS, step 3 wage scale for the Washington
DC metro area to represent the annual wage for each GS level.\97\ For
Senior Executive Service (SES) employees, DHS uses the midpoint of the
range of basic pay as the estimate for the SES annual wage.\98\
---------------------------------------------------------------------------
\97\ Salary Table No. 2023-DCB, Pay & Leave: Salaries & Wages,
Office of Personnel Management, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/html/DCB.aspx. DHS typically uses the DHS Modular Cost Model (not
publicly available) which leverages DC-area locality, Step 3, for
budgeting to assist with calculating benefits, and other forms of
compensation for Federal employees. DHS uses Step 3 for wages to
align with DHS Modular Cost Model.
\98\ The basic pay for SES employees in 2023 ranged from
$141,022 to $212,200 with a midpoint of $176,561. Salary Table No.
2023-ES, Pay & Leave: Salaries & Wages, Office of Personnel
Management, www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/exec/html/ES.aspx.
---------------------------------------------------------------------------
DHS then multiplies annual wages for each GS level and SES by a
compensation factor that represents fully loaded compensation rates.
The compensation factor is the sum of all annual compensation which
includes wages and internal DHS data on awards, bonuses, personnel
benefits, and transit benefits, divided by the annual wage.
DHS calculates a compensation rate per hour by dividing the annual
fully loaded compensation rates by 2,087, which represents the number
of annual work hours.\99\ Table 6 summarizes the compensation rates per
hour for the relevant labor categories DHS uses in the analysis.
---------------------------------------------------------------------------
\99\ OPM changed the 2,080 work hours to 2,087 by amending 5
U.S.C. 5504(b), the latter is assumed to capture year-to-year
fluctuations in work hours. Source: Consolidated Omnibus Budget
Reconciliation Act of 1985 (Pub. Law 99-272, April 7, 1986).
Table 6--Compensation Rates per Hour
----------------------------------------------------------------------------------------------------------------
Annual
Labor category Annual wage Compensation compensation Compensation
factor \100\ rate rate per hour
a b c = a x b d = c / 2,087
----------------------------------------------------------------------------------------------------------------
GS-13............................................. $119,482 1.353 $161,673 $77.47
GS-14............................................. 141,192 1.349 190,482 91.27
GS-15............................................. 166,079 1.346 223,507 107.09
[[Page 74156]]
SES............................................... 176,561 1.345 237,416 113.76
----------------------------------------------------------------------------------------------------------------
Note: Calculation may not be exact due to rounding.
DHS Costs
---------------------------------------------------------------------------
\100\ Compensation factors for the different GS levels and SES
vary because DHS calculates some benefits as a percentage of wages
and other benefits are static amounts that are equal for all GS
levels and SES.
---------------------------------------------------------------------------
DHS would incur costs related to coordinating with Federal agencies
on their phased enforcement plans to address any potential concerns
ahead of the REAL ID card-based enforcement date. This includes the
cost to develop guidance for agencies on phased enforcement and time to
review and coordinate with agencies on their plans. Furthermore, DHS
must publish the list of agencies that have coordinated phased
enforcement plans.
DHS would develop guidance to inform Federal agencies that they may
implement REAL ID card-based enforcement using a phased approach, how
to do so, and the level of coordination necessary with DHS. DHS
consulted with internal SMEs who estimate a range to develop guidance
between 60 to 100 hours. DHS uses the midpoint of this range, 80 hours,
to calculate the cost to develop guidance. DHS assumes this time would
be split between GS-13, GS-14, and GS-15 employees, with a respective
burden of 45 percent, 45 percent, and 10 percent. DHS calculates a
weighted average guidance development compensation rate of $86.64 per
hour by summing the product of the compensation rates and the
proportion of burdens for the respective groups of employees
contributing to the efforts.\101\ DHS estimates a $6,931 guidance
development cost by multiplying the 80-hour burden and the weighted
average guidance development compensation rate of $86.64 per hour.
---------------------------------------------------------------------------
\101\ $86.64 guidance development compensation per hour = (45
percent GS-13 burden x $77.47 GS-13 compensation per hour) + (45
percent GS-14 burden x $91.27 GS-14 compensation per hour) + (10
percent GS-15 burden x $107.09 GS-15 compensation per hour).
---------------------------------------------------------------------------
DHS coordination would also include reviewing phased enforcement
plans to ensure compliance with the REAL ID Act and regulations (but
would not include approval of plans). DHS consulted with internal SMEs
who estimate a range to coordinate and review plans between 8 and 24
hours per plan.\102\ DHS uses the midpoint of the range, 16 hours per
plan, to calculate DHS coordination costs. DHS assumes this time would
be split between GS-13 and GS-14 employees, with a respective burden of
50 percent and 50 percent. DHS estimates a weighted average
coordination compensation of $84.37 per hour by summing the product of
the compensation rates and the proportion of burdens for the respective
groups of employees contributing to the efforts.\103\ DHS estimates the
coordination cost by multiplying the 18 agencies that would develop
plans, the 16-hour time burden, and weighted average coordination
compensation rate of $84.37 per hour for a total coordination cost of
$24,298.\104\
---------------------------------------------------------------------------
\102\ Phased Enforcement Plan coordination and review time
estimate is less than it would take for a formal approval.
\103\ $84.37 coordination compensation per hour = (50 percent
GS-13 burden x $77.47 GS-13 compensation per hour) + (50 percent GS-
14 burden x $91.27 GS-14 compensation per hour).
\104\ DHS assumes 4 percent of the 434 Federal agencies would
submit phased enforcement plans, or about 18 agencies (see Phased
Enforcement Population). DHS coordination cost = 18 agencies x 16
hours x $84.37 = $24,298.
---------------------------------------------------------------------------
DHS would also incur costs to make publicly available a list of
agencies that have coordinated phased enforcement plans with DHS. DHS
assumes it would publish the list of agencies on a web page on DHS's
REAL ID website in year two of the analysis, just prior to the card-
based enforcement date. DHS SMEs estimate it would take 16 hours to
create, review, approve, and publish content on its existing REAL ID
website. DHS assumes this time would be split between GS-13 and GS-14
employees, with a respective burden of 50 percent and 50 percent. DHS
estimates a weighted average publishing compensation of $84.37 per hour
by summing the product of the compensation rates and the proportion of
burdens for the respective groups of employees contributing to the
efforts.\105\ DHS calculates a publishing cost of $1,350 by multiplying
the 16-hour burden and weighted average publishing compensation rate of
$84.37 per hour. DHS assumes incremental maintenance costs for this one
web page would be minimal because DHS would already maintain the DHS
REAL ID website. Furthermore, DHS would not need to update the website
content frequently because all Federal agencies that voluntarily
implement a phased enforcement plan would need to do so by May 7, 2025.
---------------------------------------------------------------------------
\105\ $84.37 weighted average publishing compensation per hour =
(50 percent GS-13 burden x $77.47 GS-13 compensation per hour) + (50
percent GS-14 burden x $91.27 GS-14 compensation per hour).
---------------------------------------------------------------------------
DHS estimates the 2-year total cost for phased enforcement
coordination to be $0.033 million undiscounted and $0.031 million
discounted at 2 percent. Table 7 describes the total costs of the
proposed rule to DHS.
Table 7--Total Cost to DHS
[$ Actual dollars, 2023 dollars]
----------------------------------------------------------------------------------------------------------------
Total cost
Cost to Cost to Cost to -------------------------------
Year develop coordinate publish list Discounted at
guidance Undiscounted 2%
----------------------------------------------------------------------------------------------------------------
a b c d = a + b + c
-------------------------------------------------------------------------
2024: 1............................... $6,931 $0 $0 $6,931 $6,795
[[Page 74157]]
2025: 2............................... 0 24,298 1,350 25,648 24,652
-------------------------------------------------------------------------
Total............................. 6,931 24,298 1,350 32,579 31,447
----------------------------------------------------------------------------------------------------------------
Note: Totals may not add due to rounding.
Federal Agency Costs
All Federal agencies would need to familiarize themselves with the
proposed rule and phased enforcement concept and determine if a phased
enforcement plan is necessary. DHS assumes at least one attorney and
one manager at the GS-14 and GS-15 levels within each agency would
review the proposed rule. DHS estimates that each person reviewing the
rulemaking would spend an average of 1.1 hours.\106\ DHS calculates a
weighted average familiarization compensation rate of $99.18 per hour
by summing the product of the compensation rates and the proportion of
burdens for the respective groups of employees contributing to the
efforts.\107\ DHS estimates the cost for all Federal agencies to
familiarize themselves with phased enforcement by multiplying the 434
Federal agencies, the two employees per agency reviewing the
rulemaking, the 1.1 hours familiarization burden and the weighted
average familiarization compensation rate of $99.18 per hour for an
initial familiarization cost of $94,145.\108\
---------------------------------------------------------------------------
\106\ DHS estimates a familiarization cost and time burden based
on the time required to read all of the words in the notice of
proposed rulemaking. DHS also assumes that individuals responsible
for reviewing the proposed rule read at a rate of 238 words per
minute. 1.09 familiarization time burden = 15,616 words in NPRM /
238 words per minute / 60 minutes.
Brysbaert, Marc. ``How many words do we read per minute? A
review and meta-analysis of reading rate.'' Journal of Memory and
Language, Aug. 2019.
\107\ DHS estimates one GS-14 and one GS-15 employee would spend
an equal amount of time to review the proposed rule (i.e., a 50
percent burden for the GS-14 level and 50 percent burden for the GS-
15 level). $99.18 weighted average familiarization compensation per
hour = (50 percent GS-14 burden x $91.27 GS-14 compensation per
hour) + (50 percent GS-15 burden x $107.09 GS-15 compensation per
hour).
\108\ Note: Calculation may not be exact due to rounding.
---------------------------------------------------------------------------
In addition to familiarization, all Federal agencies would need to
determine if based on their specific environment, developing and
coordinating a phased enforcement plan is necessary. DHS SMEs estimate
Federal agencies would spend, on average, between 10 to 40 hours to
make a determination. DHS uses the midpoint of the range, 25 hours, to
calculate the cost to make a determination. DHS assumes this time would
be split between a GS-15 and SES, with a respective burden of 50
percent and 50 percent. DHS calculates a weighted average plan
determination compensation of $110.43 per hour by summing the product
of the compensation rates and the proportion of burdens for the
respective groups of employees contributing to the efforts.\109\ DHS
estimates the cost for all Federal agencies to determine a need for a
phased enforcement plan by multiplying the 434 Federal agencies, the
25-hour burden, and the plan determination compensation rate of $110.43
per hour. This plan determination cost is $1.20 million.\110\
---------------------------------------------------------------------------
\109\ DHS assumes the burden to make a plan determination is
split with 50 percent of the effort by GS-15 employees and 50
percent by SES employees because the determination would be made by
senior level employees. $110.43 weighted average plan determination
compensation per hour = (50 percent GS-15 burden x $107.09 GS-15
compensation per hour) + (50 percent SES burden x $113.76 SES
compensation per hour).
\110\ Note: Calculation may not be exact due to rounding.
---------------------------------------------------------------------------
Federal agencies that develop phased enforcement plans would incur
costs to develop and coordinate their respective plans with DHS. DHS
assumes plan development and coordination would also include preparing
briefing materials for the public and updating the agency's website to
inform the public of the phased enforcement plan and policies. DHS SMEs
estimate Federal agencies would spend, on average, between 150 and 300
hours to develop plans. DHS uses the midpoint of the range, 225 hours,
to calculate the cost to develop plans. DHS assumes this time would be
split between GS-14, GS-15, and SES employees, with a respective burden
of 45 percent, 45 percent, and 10 percent. DHS estimates a weighted
average plan development compensation of $100.64 per hour by summing
the product of the compensation rates and the proportion of burdens for
the respective groups of employees contributing to the efforts.\111\
DHS multiplies the 18 agencies that develop plans,\112\ the 225-hour
development time burden, and the plan development compensation rate of
$100.64 per hour to calculate a plan development cost of $407,594.\113\
---------------------------------------------------------------------------
\111\ $100.64 weighted average plan development compensation per
hour = (45 percent GS-14 burden x $91.27 GS-14 compensation per
hour) + (45 percent GS-15 burden x $107.09 GS-15 compensation per
hour) + (10 percent SES burden x $113.76 SES compensation per hour).
\112\ DHS assumes 4 percent of the 434 Federal agencies would
submit phased enforcement plans, or about 18 agencies (see Phased
Enforcement Population).
\113\ Note: Calculation may not be exact due to rounding.
---------------------------------------------------------------------------
Table 8 presents the total Federal cost estimates over the 2-year
period of analysis which equates to $1.70 million undiscounted and
$1.67 million discounted at 2 percent.
[[Page 74158]]
Table 8--Total Quantified Cost to Federal Agencies
[$ Actual dollars, 2023 dollars]
----------------------------------------------------------------------------------------------------------------
Total cost to Federal agencies
Familiarization Plan Plan -------------------------------
Year cost determination development Discounted at
cost cost Undiscounted 2%
----------------------------------------------------------------------------------------------------------------
a b c d = a + b + c
---------------------------------------------------------------------------------
2024: 1....................... $94,145 $1,198,136 $407,594 $1,699,874 $1,666,543
2025: 2....................... 0 0 0 0 0
---------------------------------------------------------------------------------
Total..................... 94,145 1,198,136 407,594 1,699,874 1,6666,543
----------------------------------------------------------------------------------------------------------------
Note: Totals may not add due to rounding.
Unquantified Costs
The proposed rule would also include non-quantified impacts and
costs to affected entities. Such impacts are difficult to quantify
largely due to a high degree of uncertainty. One such impact is the
delay of benefits from the original rule by implementing the card-based
enforcement requirement of the REAL ID rule in a phased manner. Full
security benefits associated with the REAL ID rule would not be
realized, as a result of agencies implementing a phased approach, until
full enforcement occurs. As the benefits associated with the 2008 rule
are difficult to quantify, so too is the quantification of their
delay.\114\ Nonetheless, this proposed rule would have less unrealized
or delayed security benefits compared to an extension of the full
compliance date.
---------------------------------------------------------------------------
\114\ In GAO Report 12-893 (Driver's License Security), GAO
highlights the steps taken by States to detect counterfeit documents
and identity thefts, many of the same requirements of the REAL ID
Act. For instance, the verification of Social Security as well as
the use of SAVE have helped reduced the number of fraudulent
licenses issued. Retrieved from https://www.gao.gov/assets/gao-12-893.pdf. Accessed on August 28, 2024.
---------------------------------------------------------------------------
Federal agencies that voluntarily implement card-based enforcement
in a phased approach would incur costs related to plan implementation.
However, DHS assumes there would be a high degree of variability among
such plans, and agencies would have discretion to determine what
aspects to include in a phased enforcement plan. Nonetheless, Federal
agencies would likely incur costs related to training necessary
personnel on the processes and procedures of phased enforcement plans.
Federal agencies would also likely incur costs to inform the public or
appropriate stakeholders impacted about the new identity verification
procedures related to the agencies' phased enforcement plans (e.g.,
awareness campaign through media, signage at access points, and/or
providing notices for individuals with non-compliant identification).
Such costs may extend through agencies' phased enforcement plans,
beyond years one and two of this analysis. Individuals may also incur
costs to become aware of phased enforcement plans and respond
accordingly.
Total Cost of Phased Enforcement Rule
Table 9 presents the two-year total cost of the phased enforcement
proposed rule. DHS estimates the total cost of the proposed rule to be
$1.73 million undiscounted and $1.70 million discounted at 2 percent.
Table 9--Total Cost of Phased Enforcement Rule
[Actual dollars, 2023 dollars]
----------------------------------------------------------------------------------------------------------------
Total cost
Cost to Federal ---------------------------------
Year Cost to DHS agencies Discounted at
Undiscounted 2%
----------------------------------------------------------------------------------------------------------------
a b c = a + b
-----------------------------------------------------------------
2024: 1....................................... $6,931 $1,699,874 $1,706,805 $1,673,339
2025: 2....................................... 25,648 0 25,648 24,652
-----------------------------------------------------------------
Total..................................... 32,579 1,699,874 1,732,453 1,697,991
Annualized................................ ........... ................. ............... 874,549
----------------------------------------------------------------------------------------------------------------
Note: Totals may not add due to rounding.
a. Benefits of the Proposed Rule
Phased enforcement provides Federal agencies the flexibility on how
to start enforcing REAL ID card-based enforcement requirements in a
manner that may reduce operational disruption, security risk, and
public impact. This is especially relevant for Federal agencies that
process large numbers of individuals and require identification for
access purposes. Phased enforcement provides Federal agencies more time
to implement strategies to engage stakeholders and encourage REAL ID
adoption. It can also provide time for agencies to develop alternative
means to ensure continued operations for services or activities that
require use of REAL ID for official purposes. Allowance of a phased
approach would not unnecessarily delay REAL ID enforcement for those
Federal agencies ready to fully implement while also allowing more time
for those Federal agencies who they themselves, or their stakeholders,
would benefit from more time to implement.
Phased Enforcement of the card-based requirement would provide the
public more time to obtain REAL-ID compliant DL/IDs. This may mitigate
a potential backlog of applications for States with
[[Page 74159]]
lower compliance rates.\115\ The percentage of DL/IDs that are REAL ID-
compliant lags well behind the national average in some States and
those States may otherwise experience a surge in REAL ID applications
in the absence of phased enforcement. States may thus be able to avoid
an increase in processing times and costs related to measures to
alleviate backlogs in applications, such as longer operating hours,
increasing staff, and overtime pay. States and their DMVs may also be
able to smooth out their operational needs, as the phased enforcement
approach may mitigate a surge in REAL ID applications prior to full
enforcement.
---------------------------------------------------------------------------
\115\ DHS forecasts the rate of REAL IDs under the baseline
scenario would reach 85.7 percent by May 2027 whereas, DHS forecasts
the rate under phased enforcement would be between 69.1 to 83.4
percent by May 2027. This 2.3 to 16.6 difference helps spread the
processing of REAL ID requests for states as well of reducing
additional negative impacts associated with rapid enforcement.
---------------------------------------------------------------------------
A higher proportion of individuals with compliant identification
also reduces potential queuing and associated delays. For example, if
an individual presents valid, non-REAL ID-compliant identification at
an access point, security or screening workforce may require additional
time to confirm the individual's identity, and/or explain the
requirements of REAL ID and thus delay the individual, or not provide
the individual access.\116\ Such delays may also have downstream
impacts and cause longer delays for other individuals waiting in line
at the access point, including for those who may possess a REAL ID-
compliant document. However, under a phased enforcement plan, after
verifying the individual's identity, the individual may be able to use
the valid, non-compliant identification to access Federal facilities
(for a temporary period of time).
---------------------------------------------------------------------------
\116\ Delays may be short and straightforward or lengthy and
more complex. For example, simply explaining the REAL ID
requirements and providing an alternative form of identification may
only take a few minutes whereas individuals unable to use a
noncompliant DL/ID may escalate the situation, refusing to leave the
access point, request to speak with supervisors, or even assaulting
security or screening workforce which represent longer customer
interactions and consume more resources (e.g., additional workforce
and/or law enforcement) to resolve each interaction.
---------------------------------------------------------------------------
Finally, any benefits to individuals or States associated with
procuring a noncompliant card would be extended to those impacted
through the phase-in period of card-based enforcement to the extent the
agencies such individuals interact with for official purposes determine
to implement card-based enforcement through a phased approach, in place
of full and immediate enforcement on May 7, 2025; however, the security
benefits associated with full enforcement would also be delayed.
b. Alternatives Considered
DHS considered one alternative in addition to the baseline scenario
and the proposed rule.
Alternative 1: Baseline Scenario
In the no action baseline scenario (Alternative 1), full card-based
enforcement would begin in May 2025 without further extensions of the
enforcement date or a phased approach to enforcement.
In the baseline scenario, absent phased enforcement, DHS forecasts
that by May 2025, approximately 70 percent of all State-issued DL/IDs
would be REAL ID-compliant. Full card-based enforcement when a
significant percentage of the population could present non-compliant
identification may increase operational risks to Federal agencies;
especially agencies that process a large number of individuals per
day.\117\ Federal agencies would be unable to accept noncompliant DL/
IDs and may have to turn away individuals unable to present REAL ID-
compliant identification, or another form of acceptable identification.
Federal agencies would also spend additional time adjudicating such
transactions where individuals present non-compliant identification,
including handling additional questions and waiting for individuals to
present compliant identification. Individuals without compliant
identification and those waiting in long queues could become frustrated
and cause incidents, such as a backlash to security personnel enforcing
REAL ID.
---------------------------------------------------------------------------
\117\ For example, if an agency processes 2.5 million visitors a
day and 30 percent of visitors have non-compliant DL/IDs, it could
potentially result in 750,000 visitors being unable to use their DL/
IDs to gain access per day. Such large numbers of individuals with
non-compliant identification could result in operational and
security concerns as well as negative public impacts.
---------------------------------------------------------------------------
The additional time required to adjudicate transactions involving
the presentation of non-compliant identification could lead to delays
including accessing Federal facilities and federally regulated
commercial aircraft, which could impact both individuals with non-
compliant identification and individuals waiting in queues, increasing
their time burden and associated opportunity costs. These delays could
have a significant effect on the travel industry, with individuals
unable to present compliant identification at TSA checkpoints being
denied access, or individuals caught in long queues, that may result in
canceling, postponing, or adjusting travel plans and incurring
associated costs. This may include making alternative travel
arrangements whose substitution may include less efficient modes of
transportation (e.g., travelers deciding to drive rather than fly).
While nationwide, approximately 56.4 percent of all DL/IDs are REAL
ID-compliant as of January 2024, there is a wide distribution of
compliance across States with some lagging well behind the national
average. Implementation of full card-based enforcement in May 2025 may
lead to a surge in REAL ID applications and visits to the Department of
Motor Vehicles, especially in those States with lower levels of REAL ID
adoption. As a result, States may incur additional costs to resolve
such potential surges in applications, including, but not limited to,
operating longer hours, hiring more workers, and providing overtime pay
for employees. Surges in applications could also lead to additional
costs for individuals, including increased processing times to obtain a
REAL ID and increased waiting times at the Department of Motor
Vehicles.
For example, in 2007, DHS and the Department of State implemented
the WHTI rule.\118\ The WHTI rule imposed new passport requirements for
U.S. citizens and nonimmigrant aliens from certain countries entering
the United States from countries within the Western Hemisphere. The
WHTI rule led to a larger than anticipated increase in passport
applications in 2007, longer passport processing times from 5 weeks to
10 to 12 weeks, and longer lines and crowded waiting rooms at
Department of State facilities. The Department of State incurred $42.8
million in costs (in 2007 dollars) to alleviate the surge in
applications through additional staff, overtime pay, travel for
temporary staff, telephone services for its call centers, equipment,
and furniture.\119\
---------------------------------------------------------------------------
\118\ 71 FR 68412 (November 24, 2006).
\119\ State Department: Comprehensive Strategy Needed to Improve
Passport Operations, United States Government Accountability Office
(Jul. 28, 2008), available at https://www.gao.gov/assets/gao-08-891.pdf.
---------------------------------------------------------------------------
Implementing full card-based REAL ID enforcement would allow for
the full realization of the benefits of the REAL ID rule without
further delay. Specifically, DHS believes the primary benefit of REAL
ID enforcement, as discussed in the 2008 rule, would be a potential
increase to U.S. national security by reducing the vulnerability to
criminal or terrorist activity of Federal buildings, nuclear
facilities, and aircraft. An additional possible benefit of the
[[Page 74160]]
2008 rule includes reducing fraud, by increasing the difficulty of
fraudulently obtaining a valid license and increasing the cost to
create false licenses.
DHS rejects Alternative 1, however, as it limits the flexibility
Federal agencies can use to implement REAL ID card-based enforcement.
The potential for large numbers of individuals presenting non-REAL ID-
compliant identification as a means to verify identity to access
Federal facilities could cause operational risks to Federal agencies;
especially those that process large numbers of individuals (e.g., the
airport security environment). Surges in REAL ID applications may also
cause negative impacts to States in issuing REAL IDs, and individuals
in obtaining them. The proposed rule allows Federal agencies to take
such factors into account and make determinations about how to address
potential full card-based enforcement risks associated with the card-
based enforcement date.
Alternative 2: Extension of Card-Based Enforcement Deadline
In this alternative, DHS would issue a rule to extend the card-
based enforcement date from May 7, 2025, to some date between one and
two years later (Alternative 2). Alternative 2 is distinct from the
proposed rule because it extends the card-based enforcement date for
all Federal agencies and does not specifically include an option to
implement card-based enforcement through a phased approach. Under
Alternative 2, Federal agencies would be prohibited from accepting
noncompliant cards by a new date.
While Alternative 2 would afford the public more time to obtain
REAL ID-compliant identification, implementing Alternative 2 would
potentially allow those without REAL ID-compliant DL/ID to prolong
obtaining such document. REAL ID adoption rates may continue to
decrease further then they have over the last 12 months. Issuing
another extension may send a signal to individuals and industry that
full implementation of REAL ID is delayed indefinitely and that
additional extensions continue to be real possibilities thereby not
providing sufficient encouragement or incentive for the public to
obtain REAL IDs.
This alternative would also delay the security benefits associated
with the REAL ID rule across all Federal agencies until the extended
card-based enforcement date.
Under the Alternative 2, DHS and Federal agencies would be able to
avoid the quantifiable and unquantifiable costs related to the proposed
rule. For Federal agencies, this includes phased enforcement plan
development and implementation. Alternative 2 also shares some of the
same benefits as the proposed rule. For example, extending the card-
based enforcement date would provide the public more time to obtain a
REAL ID and may mitigate a potential backlog of applications for States
with lower compliance rates (or may simply further put off the issue
without a real solution). States may be able to avoid costs related to
measures to alleviate backlogs in applications for a period of time.
The alternative would help Federal agencies that process large numbers
of individuals avoid operational disruption in May 2025 because
agencies would be able to continue to accept valid and unexpired non-
REAL ID-compliant identification.
DHS does not prefer Alternative 2. Since 2020, DHS has extended the
card-based enforcement date on three occasions and by nearly 5 years.
DHS believes the vast majority of Federal agencies would be ready to
fully enforce the card-based deadline on May 7, 2025. Another extension
may give the public and industry the impression that REAL ID would
continue to be delayed and not enforced in the near future. Thus, the
proposed rule maintains the effective date for those Federal agencies
able to implement yet also provides flexibilities for those who would
benefit from additional time.
1. Regulatory Flexibility Assessment
The RFA of 1980 requires agencies to consider the potential impact
of regulations on small businesses, small government jurisdictions, and
small organizations during the development of their rules.\120\ The
Secretary, pursuant to 5 U.S.C. 605(b), certifies that the proposed
rule would not have a significant economic impact on a substantial
number of small entities. The NPRM would only be applicable to Federal
agencies who under the RFA are not considered small entities.
Accordingly, DHS is not required to prepare a regulatory flexibility
analysis. See 5 U.S.C. 603, 604.
---------------------------------------------------------------------------
\120\ 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).
---------------------------------------------------------------------------
2. 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 section 202 of the UMRA, DHS
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 DHS promulgates a rule for which a written statement is
required, section 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
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows DHS to adopt an alternative other
than the least costly, most cost-effective, or least burdensome
alternative if the proposed or final rule provides an explanation why
that alternative was not adopted. Before DHS establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must develop under
section 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 DHS 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
$183 million in 2023 dollars. DHS 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 thus a written statement would not be
required under UMRA. DHS will publish a final analysis, including its
response to public comments, when it publishes a final rule.
C. Executive Order 13132 (Federalism)
A rule has federalism implications under E.O. 13132, ``Federalism''
(64 FR 43255, Aug. 10, 1999), if it has a substantial direct effect on
State governments, on the relationship between the national government
and the States, or on the distribution of power and responsibilities
among the various levels of government. DHS has analyzed this proposed
rule under E.O. 13132 and has determined that although this rulemaking
may indirectly affect the States, it does not impose
[[Page 74161]]
substantial direct compliance costs or preempt State law. The direct
compliance costs to States for implementation of REAL ID requirements
were already accounted for in DHS 2008 final rule.\121\ In fact, the
proposed rule is responsive to concerns expressed by State agencies
regarding the upcoming deadline and would potentially provide States'
residents more time to obtain a REAL ID-compliant DL/ID if agencies
determine to implement card-based enforcement through a phased
approach. The key impact of the rulemaking is to allow Federal agencies
the authority to provide a phased enforcement approach. DHS has
determined that the proposed rule is consistent with E.O. 13132.
---------------------------------------------------------------------------
\121\ See 73 FR 5272 (Jan. 29, 2008).
---------------------------------------------------------------------------
D. Executive Order 13175 (Tribal Consultation)
This proposed rule does not have tribal implications under E.O.
13175, ``Consultation and Coordination with Indian Tribal
Governments,'' because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
E. Environmental Analysis
DHS reviews actions to determine whether 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) establishes 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 or environmental
impact statement. 40 CFR 1507.3(b)(2)(ii), 1508.4. For an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) the entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect. Instruction Manual
section V.B(2)(a)-(c).
The clarification and notice provided by this proposed rule fits
within categorical exclusion A3(d) ``Promulgation of rules...that
interpret or amend an existing regulation without changing its
environmental effect.'' Instruction Manual, appendix A, table 1.
Furthermore, the proposed rule is not part of a larger action and
presents no extraordinary circumstances creating the potential for
significant environmental impacts. Therefore, the proposed rule is
categorically excluded from further NEPA review.
F. Energy Impact Analysis
The energy impact of this rulemaking has been assessed in
accordance with the Energy Policy and Conservation Act (EPCA), Public
Law 94-163, as amended (42 U.S.C. 6362). DHS has determined that this
rulemaking would not be a major regulatory action under the provisions
of the EPCA.
List of Subjects in 6 CFR Part 37
Document security, Driver's licenses, Identification cards, Motor
vehicle administrations, Physical security.
For the reasons set forth above, the Department of Homeland
Security proposes to amend 6 CFR part 37 as follows:
PART 37--REAL ID DRIVER'S LICENSES AND IDENTIFICATION CARDS
0
1. The authority citation for part 37 continues to read as follows:
Authority: 49 U.S.C. 30301 note; 6 U.S.C. 111, 112.
0
2. Amend Sec. 37.5 by revising paragraphs (b) and (c) and adding
paragraph (d) and (e) to read as follows:
Sec. 37.5 Validity periods and deadlines for REAL ID driver's
licenses and identification cards.
* * * * *
(b) Except as provided in paragraph (d) of this section, on or
after May 7, 2025, Federal agencies shall not accept a driver's license
or identification card for official purposes from any individual unless
such license or card is a REAL ID-compliant driver's license or
identification card issued by a State that has been determined by DHS
to be in full compliance as defined under this subpart.
(c) Through the end of May 6, 2025, Federal agencies may accept for
official purposes a driver's license or identification card issued
under Sec. 37.71. Except as provided in paragraph (d) of this section,
on or after May 7, 2025, Federal agencies shall not accept for official
purposes a driver's license or identification card issued under Sec.
37.71.
(d) Federal agencies may implement the requirements of paragraphs
(b) and (c) of this section through a phased enforcement plan if the
agency determines phased implementation is appropriate. Federal
agencies that implement phased enforcement plans authorized by this
paragraph (d) must:
(1) Make a determination that a phased enforcement plan is
appropriate in consideration of relevant factors including security,
operational feasibility, and public impact;
(2) Coordinate the phased enforcement plan with DHS;
(3) Make the phased enforcement plan publicly available on the
agency's web page; and
(4) Achieve full enforcement of the requirements of paragraphs (b)
and (c) of this section no later than May 5, 2027.
(e) DHS will make publicly available a list of agencies that have
coordinated phased enforcement plans with DHS pursuant to paragraph (d)
of this section.
Dated: September 6, 2024.
David P. Pekoske,
Administrator.
[FR Doc. 2024-20616 Filed 9-11-24; 8:45 am]
BILLING CODE 9110-05-P