Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes, 23237-23241 [2021-09219]
Download as PDF
<![CDATA[
23237
Rules and Regulations
Federal Register
Vol. 86, No. 83
Monday, May 3, 2021
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 37
[Docket No. DHS–2021–0019]
RIN 1601–AB03
Minimum Standards for Driver’s
Licenses and Identification Cards
Acceptable by Federal Agencies for
Official Purposes
II. Background
Office of the Secretary, DHS.
ACTION: Interim final rule with request
for comments.
AGENCY:
This rule delays the date for
card-based enforcement of the REAL ID
regulations from October 1, 2021 until
May 3, 2023. Beginning on that date,
federal agencies may not accept a stateissued driver’s license or identification
card for official purposes from any
individual unless such license or card is
a REAL ID compliant driver’s license or
identification card issued by a state that
DHS has determined is in full
compliance as defined under this part.
The regulations also permit federal
agencies to accept for official purposes
non-compliant driver’s licenses and
identification cards until September 30,
2021. This rule also extends that date,
authorizing federal agencies to continue
to accept non-compliant driver’s
licenses and identification cards until
the end of May 2, 2023.
DATES: This rule is effective on May 3,
2021. Interested persons are invited to
submit comments before the end of July
2, 2021.
ADDRESSES: Interested persons may
comment on any aspect of this
rulemaking rule by submitting written
comments via the Federal e-Rulemaking
Portal at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Steve Yonkers, Director, REAL ID
Program Office; telephone (202) 447–
3274; email steve.yonkers@hq.dhs.gov.
jbell on DSKJLSW7X2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
17:00 Apr 30, 2021
Jkt 253001
SUPPLEMENTARY INFORMATION:
I. Public Participation
DHS invites interested persons to
comment on any aspect of this
rulemaking rule by submitting written
comments via the Federal e-Rulemaking
Portal at https://www.regulations.gov.
Use the Search bar to find the docket,
using the docket number associated
with this rulemaking. Comments
received, including any personal
information you have provided, may be
posted without change. Whenever
possible, please provide citations and
copies of any relevant studies or reports
on which your relies, as well as any
additional data which support your
comment. It is also helpful to explain
the basis and reasoning underlying any
views expressed.
A. The REAL ID Act, Implementing
Regulations, and Phased Enforcement
The REAL ID Act (the Act) sets
minimum security requirements for the
issuance and production of driver’s
licenses and identification cards issued
by the states, territories, and the District
of Columbia in order for federal
agencies to accept these documents for
official purposes.1 Official purposes
include: (1) Accessing federal facilities,
(2) boarding federally regulated
commercial aircraft, (3) entering nuclear
power plants, and (4) any other
purposes that the Secretary of
Homeland Security shall determine.2
On January 29, 2008, DHS published
a final rule implementing the Act’s
requirements.3 The regulation includes
both a deadline for state compliance
with the REAL ID requirements and a
deadline by which individuals must
obtain a REAL ID compliant license or
identification card in order to use that
document for official purposes.4 DHS
refers to these deadlines as ‘‘statebased’’ and ‘‘card-based’’ enforcement,
respectively.
For state-based enforcement, the Act
and regulation prohibit federal agencies
from accepting licenses and cards
1 Emergency Supplemental Appropriations Act
for Defense, the Global War on Terror, and Tsunami
Relief, 2005, Public Law 109–13, Div. B. title II,
§§ 201 to 207, May 11, 2005, as amended (codified
at 49 U.S.C. 30301 note).
2 Id.
3 See 73 FR 5272 (Jan. 29, 2008) (codified as
amended at 6 CFR part 37).
4 6 CFR 37.51(a) and 37.5.
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
issued by states that are not compliant
with the REAL ID standards as
determined by DHS. On March 7, 2011,
DHS changed the state-based
enforcement deadline from May 11,
2011 to January 15, 2013.5
DHS then incrementally enforced this
deadline through a phased-enforcement
schedule, pursuant to which
enforcement began at DHS headquarters,
followed by enforcement at federal
facilities and nuclear power plants.6 On
January 8, 2016, DHS announced that
the final phase of the enforcement
schedule, applicable to individuals
boarding federally-regulated commercial
aircraft, would begin on January 22,
2018.7 Thus, since January 22, 2018, the
Transportation Security Administration
(TSA) has accepted driver’s licenses and
identification cards only if issued by
compliant states (or states with an
extension or under compliance review
from DHS) at screening checkpoints.
Under existing regulations, card-based
enforcement is scheduled to begin on
October 1, 2021.8 Beginning on the cardbased enforcement date, federal
agencies are prohibited from accepting
for official purposes a license or
identification card issued by a state
unless the license or card itself was
issued in accordance with the REAL ID
standards by a REAL ID compliant
jurisdiction.
In addition to compliant licenses and
identification cards, states may issue, to
individuals who are unable or unwilling
to present the documents and
information necessary to obtain a REAL
ID compliant license, licenses and cards
that are not acceptable by federal
agencies for official purposes. These
non-compliant licenses and cards must
(1) clearly state that the card is not
acceptable for official purposes, and (2)
have a unique design or color indicator
that clearly distinguishes them from
compliant licenses and identification
cards.9 The REAL ID regulations
5 76 FR 12269 (Mar. 7, 2011) (codified as
amended at 6 CFR 37.51(a)).
6 Cf. 6 CFR 37.51(a); DHS Releases Phased
Enforcement Schedule for REAL ID (Dec. 20, 2013),
available at https://www.dhs.gov/news/2013/12/20/
dhs-releases-phased-enforcement-schedule-real-id.
7 See Statement By Secretary Jeh C. Johnson on
the Final Phase of REAL ID Act Implementation
(Jan. 8, 2016), available at https://www.dhs.gov/
news/2016/01/08/statement-secretary-jeh-cjohnson-final-phase-real-id-act-implementation.
8 6 CFR 37.5(b).
9 6 CFR 37.71; REAL ID Act section 202(d)(11).
E:\FR\FM\03MYR1.SGM
03MYR1
23238
Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and Regulations
authorize, but do not require, federal
agencies to accept these non-compliant
cards until the end of May 2, 2023.10
jbell on DSKJLSW7X2PROD with RULES
B. Progress Towards Full
Implementation
Since its enactment in 2005, DHS has
worked with the states to implement the
requirements of the REAL ID Act. DHS
has provided funding, technical
assistance, outreach, and engagement.
DHS has awarded over $263 million in
grant funding to assist in enhancements
to driver’s license security programs.11
Additionally, technical infrastructure to
support systems to verify applicant
information is being used by the states,
which is a key security component of
the Act and regulation. DHS, the states,
and other stakeholders have conducted
broad outreach and engagement to
inform the public of REAL ID
requirements and upcoming
enforcement deadlines. A central and
continuing goal has been to simplify the
process and to make the various
requirements easier to navigate, with the
aim of reducing all relevant burdens and
of promoting equity.12
These efforts have yielded significant
progress towards full REAL ID
implementation. Fifty-five of the 56
jurisdictions subject to REAL ID have
achieved compliance with the REAL ID
standards and are currently issuing
REAL ID-compliant licenses and
identification cards. Based on REAL ID
data compiled by compliant states, DHS
estimates that compliant states,
territories and the District of Columbia
have issued approximately 119 million
compliant licenses and cards, which
represent approximately 43 percent of
the population eligible for these
documents.13 Data from the states also
indicates that states have issued
approximately 90 million noncompliant marked licenses and
identification cards and approximately
64 million individuals still have legacy
licenses without any markings that were
issued before a state’s compliance
determination. At the current 0.5
percent REAL ID issuance rate, DHS
estimates that approximately 46 percent
10 See 84 FR 55017 (Oct. 15, 2019) and 85 FR
23205 (Apr. 27, 2020) (codified at 6 CFR 37.5)
(clarifying that the October 1, 2021 deadline by
which Federal agencies may no longer accept noncompliant driver’s licenses and identification cards
for official purposes applies to all non-compliant
cards, including state-issued driver’s licenses and
identification cards marked to indicate that they
may not be used for official Federal purposes).
11 Secure Identification State Progress ReportFiscal Year 2012 Report to Congress.
12 See E.O. 13707, Using Behavioral Science
Insights to Better Serve the American People, 80 FR
56365 (published Sept. 18, 2015).
13 Based on REAL ID issuance data voluntarily
submitted monthly to DHS by the compliant states.
VerDate Sep<11>2014
17:00 Apr 30, 2021
Jkt 253001
of the population eligible for a REAL ID
license will have one by the current
October 1, 2021 full enforcement date.
The remainder of the population would
need another acceptable form of
identification, where identification is
required for REAL ID official purposes,
including for use as identification at
TSA airport security checkpoints.14
DHS has increased its level of
outreach and engagement to the public
and other REAL ID stakeholders,
including airlines, airports, and others
in the travel industry. Through these
engagements, DHS has received useful
feedback regarding the challenges of
fully implementing REAL ID ahead of
the October 1, 2021, card-based
enforcement deadline.
DHS also has been working with the
states and other stakeholders to identify
ways to modernize the REAL ID
application process and to reduce
complexity and burdens. For example,
DHS issued a request for information
(RFI) on November 7, 2019, seeking
input from the public, states, private
sector entities and other interested
stakeholders on ways to improve,
streamline, and reduce burdens
associated with the current application
process through the use of new
capabilities and technologies in
addition to other modifications to
existing application requirements.15 The
RFI yielded more than 100 proposals
that included suggestions for
streamlining the application and
issuance process by authorizing the
submission of REAL ID applications and
identity information through secure
electronic or digital transmission
methods. Following consideration of
these proposals, DHS worked with
Congress to enact the REAL ID
Modernization Act, which includes a
provision that would authorize states to
accept REAL ID applicant information
through electronic transmission
methods following the issuance of
regulations by DHS.16
14 Although a significant segment of the
population may not currently possess a REAL ID,
they may have other forms of identification
acceptable for official purposes (e.g., a U.S.
passport, U.S. passport card, or military
identification).
15 84 FR 60104 (Nov. 7, 2019). This RFI is
unrelated to a subsequent RFI issued on April 19,
2021, which seeks information to inform a
rulemaking to amend the REAL ID implementing
regulation, 6 CFR part 37, to address security
standards and requirements for the issuance of
mobile or digital driver’s licenses and identification
cards to enable Federal agencies to accept these
credentials for official purposes as defined in the
REAL ID Act and regulation. 86 FR 20320 (Apr. 19,
2021).
16 The REAL ID Modernization Act, Title X, Div.
U of the Consolidated Appropriations Act, 2021,
Public Law 116–260 (Dec. 27, 2020).
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
C. Coronavirus Disease 2019 (COVID–
19)
Coronavirus Disease 2019 (COVID–
19), a communicable disease caused by
a new (novel) coronavirus named
SARS–CoV–2, is a respiratory disease
that can cause fever, cough, and
difficulty breathing, with reported
illnesses ranging from mildly
symptomatic to severe illness and death.
DHS continues to monitor and respond
to the COVID–19 pandemic. As of April
19, 2021, there have been over 140
million confirmed cases globally, with
over 3 million confirmed deaths.17 In
the United States, there have been over
31 million reported cases with over
563,000 reported deaths.18
On January 31, 2020, the Secretary of
the Department of Health and Human
Services declared a nationwide ‘‘public
health emergency’’ under section 319 of
the Public Health Service Act, 42 U.S.C.
274d, as a result of confirmed cases of
COVID–19.19 On March 11, 2020, the
World Health Organization announced
that the COVID–19 outbreak can be
characterized as a pandemic. On March
13, 2020, the President determined that
the ongoing COVID–19 pandemic is of
sufficient severity and magnitude to
warrant an emergency determination
under section 501(b) of the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121–5207. In
addition, on March 13, 2020, the
President declared a national emergency
under sections 201 and 301 of the
National Emergencies Act, 50 U.S.C.
1601 et seq.20 More recently, on January
27, 2021, the Acting Secretary of
Homeland Security issued a Secretarial
Determination of National Emergency.
Moreover, state and local jurisdictions
throughout the United States continue
to engage in various social distancing
practices and other efforts to reduce and
mitigate against further spread of
COVID–19, including closing or
reducing service times at government
offices and by accepting in-person visits
by appointment only.
17 WHO, Coronavirus disease 2019 (COVID–19)
Weekly Epidemiological Update (March 3, 2021),
available at https://covid19.who.int.
18 CDC, COVID Data Tracker (accessed March 3,
2021), available at https://covid.cdc.gov/covid-datatracker/.
19 HHS, ‘‘Determination that a Public Health
Emergency Exists,’’ https://www.phe.gov/
emergency/news/healthactions/phe/Pages/2019nCoV.aspx.
20 Proclamation 9994 of Mar. 13, 2020 on
Declaring a National Emergency Concerning the
Novel Coronavirus Disease (COVID–19) Outbreak,
85 FR 15337 (Mar. 18, 2020).
E:\FR\FM\03MYR1.SGM
03MYR1
Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and Regulations
D. DHS Final Rule Extending the CardBased Deadline
Considering the impact of the COVID–
19 pandemic on state and local
government operations and the desire to
reduce further spread by encouraging
continued social distancing, in April
2020 DHS issued a final rule extending
the REAL ID card-based enforcement
date for one year until October 1,
2021.21 DHS took this action to assist
the states in avoiding in-person driver’s
licensing agency visits and in
recognition of the fact that, as a result
of the pandemic, most if not all states
severely curtailed driver’s licensing
agency operations and service hours and
authorized extensions for expiring
driver’s licenses.
III. Further Extending the Card-Based
Enforcement Deadline
jbell on DSKJLSW7X2PROD with RULES
Notwithstanding the substantial
progress made towards full REAL ID
implementation, the Secretary
recognizes that significant challenges
persist with full REAL ID enforcement
in the current environment. The
outbreak and continued spread of
COVID–19 has significantly disrupted
the daily lives and activities of all
Americans. It has shifted priorities and
severely curtailed daily interactions. In
important respects, it has had an
especially severe impact on low-income
communities, those in ill health, and the
elderly. To limit exposure and reduce
the chance of transmission, state and
local government offices continue to
operate at limited capacity, provide
remote services, or, in some cases,
remain temporarily closed to the
public.22 Additionally, some states
continue to authorize grace periods and
extensions to those with expiring
licenses as a further way to avoid inperson contact and mitigate risks to the
health and safety of the public and state
government employees.
DHS recognizes the continuing impact
these disruptions are creating on the
ability of many individuals to obtain a
REAL ID compliant license or
identification card before October 1,
2021. DHS also recognizes that these
disruptions have had a particularly
severe effect on some vulnerable
subpopulations. Moreover, the Secretary
recognizes the importance of social
distancing, and with the commitments
to fairness and equity in mind,23 is
21 85
FR 23205 (Apr. 27, 2020).
should check with their state DMV
for policies and guidance on license issuance and
renewals and other services during the disruption
caused by COVID–19.
23 See E.O. 13985, Advancing Racial Equity and
Support for Underserved Communities Through the
22 Individuals
VerDate Sep<11>2014
17:00 Apr 30, 2021
Jkt 253001
taking this action to assure the public
that there is no need to visit a state
driver’s licensing agency to obtain a
REAL ID document at this time.
Accordingly, the Secretary is
extending the date by which individuals
must obtain a REAL ID license or
identification card to use that document
for official purposes until May 3, 2023.
This extension is intended to provide
sufficient time for DMVs across the
country to fully reopen in-person
services. A safe and sustained reopening
of in-person services is necessary to
meaningfully improve upon the current
0.5 percent REAL ID issuance rate. As
noted above, at the current 0.5 percent
REAL ID issuance rate, DHS estimates
that approximately 46 percent of the
population eligible for a REAL ID
license will have one by the current
October 1, 2021 full enforcement date.
DHS believes that such an outcome
would result in lengthy delays at airport
security checkpoints and significant
inconvenience to the traveling public.
Moreover, DHS anticipates that the
additional time provided by this
extension should be sufficient for states
to implement and benefit from recent
and potential future changes to the
REAL ID issuance process. For instance,
a provision of the REAL ID
Modernization Act allows states to
immediately stop requiring applicants
to provide separate physical
documentation of a Social Security
account number. This flexibility, which
would reduce the burden on applicants
and may in some cases help applicants
avoid return trips to the DMV, has yet
to be implemented in all states. In
addition, also consistent with the REAL
ID Modernization Act, DHS is
considering issuing regulations
authorizing new procedures for the
electronic presentation of documents,
which may allow for a more rapid and
socially distanced issuance process.
DHS requires time to develop such
regulations, and states would require
time for implementation.
Finally, to avoid any confusion about
the ability of federal agencies to
continue to accept certain noncompliant licenses and identification
cards issued under § 37.71, DHS also is
extending the date by which federal
agencies may continue to accept these
licenses and identification cards for
official purposes until the end of May 2,
2023. Although some agencies,
including TSA, accept these licenses
and identification cards for official
Federal Government, 86 FR 7009 (published Jan. 25,
2021); E.O. 13563, Improving Regulation and
Regulatory Review, 76 FR 3821 (published Jan. 21,
2011).
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
23239
purposes, others may decide not to
accept, or currently do not accept, noncompliant marked cards for official
purposes. Individuals who need to visit
a federal facility, building, or office
should check in advance whether the
agency requires identification for access
purposes and, if they do, the forms of
identification they accept.
IV. Regulatory Analysis
A. Administrative Procedure Act
DHS takes this action without prior
notice and public comment, but
welcomes comment on all aspects of the
action.
Sections 553(b) and (d) of the
Administrative Procedure Act (5 U.S.C.
553) authorize agencies to dispense with
certain rulemaking procedures when
they find good cause to do so. Under
section 553(b), the requirements of
notice and opportunity to comment do
not apply when the agency for good
cause finds that these procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Section 553(d)
allows an agency, upon finding good
cause, to make a rule effective
immediately, thereby avoiding the 30day delayed effective date requirement
in section 553.
This interim final rule recognizes the
need to extend the card-based
enforcement deadline in light of the
significant disruption and uncertainty
in government operations now being
caused by the COVID–19 virus, as well
as the need to encourage appropriate
social distancing behavior. October 1,
the previous deadline, is merely five
months away, and a notice-andcomment process would mean
continuing uncertainty for state and
local governments, for airlines, for
travelers, and for numerous others. As
also noted, many state and local
government offices are operating at
limited capacity. Some of them are
providing remote services; some of them
are closed to the public. In addition,
many states are continuing to curtail
driver’s licensing agency operations and
service hours and have authorized
extensions for expiring driver’s licenses.
These restrictions are making it
unusually difficult for many people
(especially those in certain regions or in
vulnerable groups, including those who
are in poor health) to do what is
required to obtain REAL–ID.
In these circumstances, delaying the
change to the regulation’s enforcement
date by first undergoing notice and
comment would impede planning,
would lead to undue uncertainty, and
could produce serious unfairness. It
would be contrary to the public interest,
E:\FR\FM\03MYR1.SGM
03MYR1
23240
Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and Regulations
as an expeditious regulatory
announcement of the new deadline is
necessary for state and individual
planning purposes. These factors
suggest that delays associated with
notice and comment rulemaking would
potentially undermine critical public
health efforts at the federal, state,
territorial, or local level. DHS therefore
has good cause to bypass such
procedures, while also welcoming
comments on all aspects of this action.
B. Paperwork Reduction Act
This rule calls for no new collection
of information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520).
jbell on DSKJLSW7X2PROD with RULES
C. Executive Orders 12866 and 13563
Assessment
This rule constitutes a ‘‘significant
regulatory action’’ under Executive
Order 12866, as supplemented by
Executive Order 13563, and therefore
has been reviewed by the Office of
Management and Budget (OMB).
Executive Order 12866 defines
‘‘significant regulatory action’’ as one
that is likely to result in a rule that may
(1) have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
state, local, or Tribal governments or
communities; (2) create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) materially alter the
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights or obligations of recipients
thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order. DHS is
proceeding under the emergency
provision at Executive Order 12866
Section 6(a)(3)(D) based on the urgent
needs described above.
D. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–612, as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub.
L. 104–121), requires Federal agencies
to consider the potential impact of
regulations on small businesses, small
government jurisdictions, and small
organizations during the development of
their rules. This rule, however, makes
changes for which notice and comment
are not necessary. Accordingly, DHS is
not required to prepare a regulatory
flexibility analysis. See 5 U.S.C. 603,
604.
VerDate Sep<11>2014
17:00 Apr 30, 2021
Jkt 253001
E. Executive Order 13132 (Federalism)
A rule has federalism implications
under Executive Order 13132,
‘‘Federalism,’’ if it has a substantial
direct effect on state governments, on
the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. DHS has analyzed
this rule under that Order and has
determined that although this rule
affects the states, it does not impose
substantial direct compliance costs or
preempt state law. In fact, the rule is
responsive to concerns expressed by
state agencies regarding the upcoming
deadlines. DHS has determined that the
rule is consistent with Executive Order
13132.
F. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act
of 1995 requires Federal agencies to
assess the effects of their discretionary
regulatory actions. In particular, the
Unfunded Mandates Reform Act
addresses actions that may result in the
expenditure by a state, local, or Tribal
government, in the aggregate, or by the
private section of $100 million (adjusted
for inflation) or more in any one year.
This rule will not result in such an
expenditure.
G. Executive Order 13175 (Tribal
Consultation)
This rule does not have Tribal
Implications under Executive Order
13175, ‘‘Consultation and Coordination
with Indian Tribal Governments,’’
because it does not have a substantial
direct effect on one or more Indian
Tribes, on the relationship between the
Federal Government and Indian Tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
H. Environment
DHS reviews proposed actions to
determine whether the National
Environmental Policy Act (NEPA)
applies to them and, if so, what degree
of analysis is required. DHS Directive
023–01 Rev. 01 (Directive) and
Instruction Manual 023–01–001–01 Rev.
01 (Instruction Manual) establish the
procedures that DHS and its
components use to comply with NEPA
and the Council on Environmental
Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts 1500
through 1508.
The CEQ regulations allow federal
agencies to establish, with CEQ review
and concurrence, categories of actions
(‘‘categorical exclusions’’) which
experience has shown do not
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
individually or cumulatively have a
significant effect on the human
environment and, therefore, do not
require an Environmental Assessment
(EA) or Environmental Impact
Statement (EIS). 40 CFR 1507.3(b)(2)(ii),
1508.4. For an action to be categorically
excluded, it must satisfy each of the
following three conditions: (1) The
entire action clearly fits within one or
more of the categorical exclusions; (2)
the action is not a piece of a larger
action; and (3) no extraordinary
circumstances exist that create the
potential for a significant environmental
effect. Instruction Manual section
V.B(2)(a)–(c).
The delay effectuated by this rule fits
within categorical exclusion A3(a)
‘‘Promulgation of rules . . . of a strictly
administrative or procedural nature.’’
Instruction Manual, Appendix A, Table
1. Furthermore, the rule is not part of a
larger action and presents no
extraordinary circumstances creating
the potential for significant
environmental impacts. Therefore, the
rule is categorically excluded from
further NEPA review.
List of Subjects in 6 CFR Part 37
Document security, Driver’s licenses,
Identification cards, Motor vehicle
administrations, Physical security.
The Amendments
For the reasons set forth above, the
Department of Homeland Security
amends 6 CFR part 37 as follows:
PART 37—REAL ID DRIVER’S
LICENSES AND IDENTIFICATION
CARDS
1. The authority citation for part 37
continues to read as follows:
■
Authority: 49 U.S.C. 30301 note; 6 U.S.C.
111, 112.
Subpart A—General
2. In § 37.5, revise paragraphs (b) and
(c) to read as follows:
■
§ 37.5 Validity periods and deadlines for
REAL ID driver’s licenses and identification
cards.
*
*
*
*
*
(b) On or after May 3, 2023, Federal
agencies shall not accept a driver’s
license or identification card for official
purposes from any individual unless
such license or card is a REAL ID–
compliant driver’s license or
identification card issued by a State that
has been determined by DHS to be in
full compliance as defined under this
subpart.
(c) Through the end of May 2, 2023,
Federal agencies may accept for official
E:\FR\FM\03MYR1.SGM
03MYR1
Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and Regulations
purposes a driver’s license or
identification card issued under § 37.71.
On or after May 3, 2023, Federal
agencies shall not accept for official
purposes a driver’s license or
identification card issued under § 37.71.
Alejandro N. Mayorkas,
Secretary.
[FR Doc. 2021–09219 Filed 4–30–21; 8:45 am]
BILLING CODE 9110–9M–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Authority for This Rulemaking
14 CFR Parts 13 and 406
Office of the Secretary
14 CFR Part 383
Great Lakes St. Lawrence Seaway
Development Corporation
33 CFR Part 401
Maritime Administration
46 CFR Parts 221, 307, 340, and 356
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 107, 171, and 190
Federal Railroad Administration
49 CFR Parts 209, 213, 214, 215, 216,
217, 218, 219, 220, 221, 222, 223, 224,
225, 227, 228, 229, 230, 231, 233, 234,
235, 236, 237, 238, 239, 240, 241, 242,
243, 244, and 272
Federal Motor Carrier Safety
Administration
49 CFR Part 386
National Highway Traffic Safety
Administration
49 CFR Part 578
RIN 2105–AE99
Civil Penalty Amounts
Department of Transportation
(DOT or the Department).
ACTION: Final rule.
AGENCY:
In accordance with the
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015, this final rule provides the 2021
inflation adjustment to civil penalty
amounts that may be imposed for
violations of certain DOT regulations. In
jbell on DSKJLSW7X2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
17:00 Apr 30, 2021
addition, this rule amends the Federal
Aviation Administration regulations to
set forth the new civil penalties
established in Division V, Title I of the
Consolidated Appropriations Act, 2021.
The rule also corrects a rounding error
in an FAA penalty.
DATES: Effective May 3, 2021.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Kohl, Attorney-Advisor,
Office of the General Counsel, U.S.
Department of Transportation, 1200
New Jersey Ave. SE, Washington, DC
20590, elizabeth.kohl@dot.gov.
SUPPLEMENTARY INFORMATION:
Jkt 253001
This rule implements the Federal
Civil Penalties Inflation Adjustment Act
of 1990 (FCPIAA), Public Law 101–410,
as amended by the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (2015 Act),
Public Law 114–74, 129 Stat. 599,
codified at 28 U.S.C. 2461 note. The
FCPIAA and the 2015 Act require
Federal agencies to adjust minimum and
maximum civil penalty amounts for
inflation to preserve their deterrent
impact. The 2015 Act amended the
formula and frequency of inflation
adjustments. It required an initial catchup adjustment in the form of an interim
final rule, followed by annual
adjustments of civil penalty amounts
using a statutorily mandated formula.
Section 4(b)(2) of the 2015 Act
specifically directs that the annual
adjustment be accomplished through
final rule without notice and comment.
This rule is effective immediately.
This rule also implements the
authority to assess civil penalties for
violations of requirements concerning
certificates issued by the FAA and for
interference with the duties of
organization designation authorization
unit members. These civil penalties
were established in the Consolidated
Appropriations Act, 2021, Public Law
116–260 (December 27, 2020), and are
codified at 49 U.S.C. 44704 and 44742,
respectively.
The Department’s authorities over the
specific civil penalty regulations being
amended by this rule are provided in
the preamble discussion below.
I. Background
On November 2, 2015, the President
signed into law the 2015 Act, which
amended the FCPIAA, to improve the
effectiveness of civil monetary penalties
and to maintain their deterrent effect.
The 2015 Act requires Federal agencies
to: (1) Adjust the level of civil monetary
penalties with an initial ‘‘catch-up’’
adjustment through an interim final rule
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
23241
(IFR); and (2) make subsequent annual
adjustments for inflation.
The 2015 Act directed the Office of
Management and Budget (OMB) to issue
guidance on implementing the required
annual inflation adjustment no later
than December 15 of each year.1 On
December 23, 2020, OMB released this
required guidance, in OMB
Memorandum M–21–10, which
provides instructions on how to
calculate the 2021 annual adjustment.
To derive the 2021 adjustment, the
Department must multiply the
maximum or minimum penalty amount
by the percent change between the
October 2020 Consumer Price Index for
All Urban Consumers (CPI–U) and the
October 2019 CPI–U. In this case, as
explained in OMB Memorandum M–21–
10, the percent change between the
October 2020 CPI–U and the October
2019 CPI–U is 1.01182.
II. Issuance of a Final Rule
This final rule is being published
without notice and comment and with
an immediate effective date.
The 2015 Act provides clear direction
for how to adjust the civil penalties, and
clearly states at section 4(b)(2) that this
adjustment shall be made
‘‘notwithstanding section 553 of title 5,
United States Code.’’ By operation of the
2015 Act, DOT must publish an annual
adjustment by January 15 of every year,
and the new levels take effect upon
publication of the rule. In addition, as
noted previously in the discussion of
the authority for this rulemaking,
Division V, Title I of the Consolidated
Appropriations Act, 2021 provides
explicit authority to assess civil
penalties for violations of 49 U.S.C.
44704 and 44742. The rule also corrects
a rounding error in an FAA penalty.
DOT does not have discretion with
regard to effectuating the updates
resulting from the changes to its
authority, and the mathematical
correction simply fixes a de minimis
error of $3 for the maximum penalty.
Accordingly, DOT is publishing this
final rule without prior notice and
comment, and with an immediate
effective date.
III. Discussion of the Final Rule
In 2016, OST and DOT’s operating
administrations with civil monetary
penalties promulgated the ‘‘catch up’’
IFR required by the 2015 Act. All DOT
operating administrations have already
finalized their ‘‘catch up’’ IFRs and this
rule makes the annual inflation
adjustment required by the 2015 Act.
1 28
E:\FR\FM\03MYR1.SGM
U.S.C. 2461 note.
03MYR1
]]>Agencies
[Federal Register Volume 86, Number 83 (Monday, May 3, 2021)]
[Rules and Regulations]
[Pages 23237-23241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09219]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and
Regulations
[[Page 23237]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 37
[Docket No. DHS-2021-0019]
RIN 1601-AB03
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes
AGENCY: Office of the Secretary, DHS.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule delays the date for card-based enforcement of the
REAL ID regulations from October 1, 2021 until May 3, 2023. Beginning
on that date, federal agencies may not accept a state-issued driver's
license or identification card for official purposes from any
individual unless such license or card is a REAL ID compliant driver's
license or identification card issued by a state that DHS has
determined is in full compliance as defined under this part. The
regulations also permit federal agencies to accept for official
purposes non-compliant driver's licenses and identification cards until
September 30, 2021. This rule also extends that date, authorizing
federal agencies to continue to accept non-compliant driver's licenses
and identification cards until the end of May 2, 2023.
DATES: This rule is effective on May 3, 2021. Interested persons are
invited to submit comments before the end of July 2, 2021.
ADDRESSES: Interested persons may comment on any aspect of this
rulemaking rule by submitting written comments via the Federal e-
Rulemaking Portal at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Steve Yonkers, Director, REAL ID
Program Office; telephone (202) 447-3274; email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Public Participation
DHS invites interested persons to comment on any aspect of this
rulemaking rule by submitting written comments via the Federal e-
Rulemaking Portal at https://www.regulations.gov. Use the Search bar to
find the docket, using the docket number associated with this
rulemaking. Comments received, including any personal information you
have provided, may be posted without change. Whenever possible, please
provide citations and copies of any relevant studies or reports on
which your relies, as well as any additional data which support your
comment. It is also helpful to explain the basis and reasoning
underlying any views expressed.
II. Background
A. The REAL ID Act, Implementing Regulations, and Phased Enforcement
The REAL ID Act (the Act) sets minimum security requirements for
the issuance and production of driver's licenses and identification
cards issued by the states, territories, and the District of Columbia
in order for federal agencies to accept these documents for official
purposes.\1\ Official purposes include: (1) Accessing federal
facilities, (2) boarding federally regulated commercial aircraft, (3)
entering nuclear power plants, and (4) any other purposes that the
Secretary of Homeland Security shall determine.\2\
---------------------------------------------------------------------------
\1\ Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13,
Div. B. title II, Sec. Sec. 201 to 207, May 11, 2005, as amended
(codified at 49 U.S.C. 30301 note).
\2\ Id.
---------------------------------------------------------------------------
On January 29, 2008, DHS published a final rule implementing the
Act's requirements.\3\ The regulation includes both a deadline for
state compliance with the REAL ID requirements and a deadline by which
individuals must obtain a REAL ID compliant license or identification
card in order to use that document for official purposes.\4\ DHS refers
to these deadlines as ``state-based'' and ``card-based'' enforcement,
respectively.
---------------------------------------------------------------------------
\3\ See 73 FR 5272 (Jan. 29, 2008) (codified as amended at 6 CFR
part 37).
\4\ 6 CFR 37.51(a) and 37.5.
---------------------------------------------------------------------------
For state-based enforcement, the Act and regulation prohibit
federal agencies from accepting licenses and cards issued by states
that are not compliant with the REAL ID standards as determined by DHS.
On March 7, 2011, DHS changed the state-based enforcement deadline from
May 11, 2011 to January 15, 2013.\5\
---------------------------------------------------------------------------
\5\ 76 FR 12269 (Mar. 7, 2011) (codified as amended at 6 CFR
37.51(a)).
---------------------------------------------------------------------------
DHS then incrementally enforced this deadline through a phased-
enforcement schedule, pursuant to which enforcement began at DHS
headquarters, followed by enforcement at federal facilities and nuclear
power plants.\6\ On January 8, 2016, DHS announced that the final phase
of the enforcement schedule, applicable to individuals boarding
federally-regulated commercial aircraft, would begin on January 22,
2018.\7\ Thus, since January 22, 2018, the Transportation Security
Administration (TSA) has accepted driver's licenses and identification
cards only if issued by compliant states (or states with an extension
or under compliance review from DHS) at screening checkpoints.
---------------------------------------------------------------------------
\6\ Cf. 6 CFR 37.51(a); DHS Releases Phased Enforcement Schedule
for REAL ID (Dec. 20, 2013), available at https://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id.
\7\ See Statement By Secretary Jeh C. Johnson on the Final Phase
of REAL ID Act Implementation (Jan. 8, 2016), available at https://www.dhs.gov/news/2016/01/08/statement-secretary-jeh-c-johnson-final-phase-real-id-act-implementation.
---------------------------------------------------------------------------
Under existing regulations, card-based enforcement is scheduled to
begin on October 1, 2021.\8\ Beginning on the card-based enforcement
date, federal agencies are prohibited from accepting for official
purposes a license or identification card issued by a state unless the
license or card itself was issued in accordance with the REAL ID
standards by a REAL ID compliant jurisdiction.
---------------------------------------------------------------------------
\8\ 6 CFR 37.5(b).
---------------------------------------------------------------------------
In addition to compliant licenses and identification cards, states
may issue, to individuals who are unable or unwilling to present the
documents and information necessary to obtain a REAL ID compliant
license, licenses and cards that are not acceptable by federal agencies
for official purposes. These non-compliant licenses and cards must (1)
clearly state that the card is not acceptable for official purposes,
and (2) have a unique design or color indicator that clearly
distinguishes them from compliant licenses and identification cards.\9\
The REAL ID regulations
[[Page 23238]]
authorize, but do not require, federal agencies to accept these non-
compliant cards until the end of May 2, 2023.\10\
---------------------------------------------------------------------------
\9\ 6 CFR 37.71; REAL ID Act section 202(d)(11).
\10\ See 84 FR 55017 (Oct. 15, 2019) and 85 FR 23205 (Apr. 27,
2020) (codified at 6 CFR 37.5) (clarifying that the October 1, 2021
deadline by which Federal agencies may no longer accept non-
compliant driver's licenses and identification cards for official
purposes applies to all non-compliant cards, including state-issued
driver's licenses and identification cards marked to indicate that
they may not be used for official Federal purposes).
---------------------------------------------------------------------------
B. Progress Towards Full Implementation
Since its enactment in 2005, DHS has worked with the states to
implement the requirements of the REAL ID Act. DHS has provided
funding, technical assistance, outreach, and engagement. DHS has
awarded over $263 million in grant funding to assist in enhancements to
driver's license security programs.\11\ Additionally, technical
infrastructure to support systems to verify applicant information is
being used by the states, which is a key security component of the Act
and regulation. DHS, the states, and other stakeholders have conducted
broad outreach and engagement to inform the public of REAL ID
requirements and upcoming enforcement deadlines. A central and
continuing goal has been to simplify the process and to make the
various requirements easier to navigate, with the aim of reducing all
relevant burdens and of promoting equity.\12\
---------------------------------------------------------------------------
\11\ Secure Identification State Progress Report-Fiscal Year
2012 Report to Congress.
\12\ See E.O. 13707, Using Behavioral Science Insights to Better
Serve the American People, 80 FR 56365 (published Sept. 18, 2015).
---------------------------------------------------------------------------
These efforts have yielded significant progress towards full REAL
ID implementation. Fifty-five of the 56 jurisdictions subject to REAL
ID have achieved compliance with the REAL ID standards and are
currently issuing REAL ID-compliant licenses and identification cards.
Based on REAL ID data compiled by compliant states, DHS estimates that
compliant states, territories and the District of Columbia have issued
approximately 119 million compliant licenses and cards, which represent
approximately 43 percent of the population eligible for these
documents.\13\ Data from the states also indicates that states have
issued approximately 90 million non-compliant marked licenses and
identification cards and approximately 64 million individuals still
have legacy licenses without any markings that were issued before a
state's compliance determination. At the current 0.5 percent REAL ID
issuance rate, DHS estimates that approximately 46 percent of the
population eligible for a REAL ID license will have one by the current
October 1, 2021 full enforcement date. The remainder of the population
would need another acceptable form of identification, where
identification is required for REAL ID official purposes, including for
use as identification at TSA airport security checkpoints.\14\
---------------------------------------------------------------------------
\13\ Based on REAL ID issuance data voluntarily submitted
monthly to DHS by the compliant states.
\14\ Although a significant segment of the population may not
currently possess a REAL ID, they may have other forms of
identification acceptable for official purposes (e.g., a U.S.
passport, U.S. passport card, or military identification).
---------------------------------------------------------------------------
DHS has increased its level of outreach and engagement to the
public and other REAL ID stakeholders, including airlines, airports,
and others in the travel industry. Through these engagements, DHS has
received useful feedback regarding the challenges of fully implementing
REAL ID ahead of the October 1, 2021, card-based enforcement deadline.
DHS also has been working with the states and other stakeholders to
identify ways to modernize the REAL ID application process and to
reduce complexity and burdens. For example, DHS issued a request for
information (RFI) on November 7, 2019, seeking input from the public,
states, private sector entities and other interested stakeholders on
ways to improve, streamline, and reduce burdens associated with the
current application process through the use of new capabilities and
technologies in addition to other modifications to existing application
requirements.\15\ The RFI yielded more than 100 proposals that included
suggestions for streamlining the application and issuance process by
authorizing the submission of REAL ID applications and identity
information through secure electronic or digital transmission methods.
Following consideration of these proposals, DHS worked with Congress to
enact the REAL ID Modernization Act, which includes a provision that
would authorize states to accept REAL ID applicant information through
electronic transmission methods following the issuance of regulations
by DHS.\16\
---------------------------------------------------------------------------
\15\ 84 FR 60104 (Nov. 7, 2019). This RFI is unrelated to a
subsequent RFI issued on April 19, 2021, which seeks information to
inform a rulemaking to amend the REAL ID implementing regulation, 6
CFR part 37, to address security standards and requirements for the
issuance of mobile or digital driver's licenses and identification
cards to enable Federal agencies to accept these credentials for
official purposes as defined in the REAL ID Act and regulation. 86
FR 20320 (Apr. 19, 2021).
\16\ The REAL ID Modernization Act, Title X, Div. U of the
Consolidated Appropriations Act, 2021, Public Law 116-260 (Dec. 27,
2020).
---------------------------------------------------------------------------
C. Coronavirus Disease 2019 (COVID-19)
Coronavirus Disease 2019 (COVID-19), a communicable disease caused
by a new (novel) coronavirus named SARS-CoV-2, is a respiratory disease
that can cause fever, cough, and difficulty breathing, with reported
illnesses ranging from mildly symptomatic to severe illness and death.
DHS continues to monitor and respond to the COVID-19 pandemic. As of
April 19, 2021, there have been over 140 million confirmed cases
globally, with over 3 million confirmed deaths.\17\ In the United
States, there have been over 31 million reported cases with over
563,000 reported deaths.\18\
---------------------------------------------------------------------------
\17\ WHO, Coronavirus disease 2019 (COVID-19) Weekly
Epidemiological Update (March 3, 2021), available at https://covid19.who.int.
\18\ CDC, COVID Data Tracker (accessed March 3, 2021), available
at https://covid.cdc.gov/covid-data-tracker/.
---------------------------------------------------------------------------
On January 31, 2020, the Secretary of the Department of Health and
Human Services declared a nationwide ``public health emergency'' under
section 319 of the Public Health Service Act, 42 U.S.C. 274d, as a
result of confirmed cases of COVID-19.\19\ On March 11, 2020, the World
Health Organization announced that the COVID-19 outbreak can be
characterized as a pandemic. On March 13, 2020, the President
determined that the ongoing COVID-19 pandemic is of sufficient severity
and magnitude to warrant an emergency determination under section
501(b) of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121-5207. In addition, on March 13, 2020,
the President declared a national emergency under sections 201 and 301
of the National Emergencies Act, 50 U.S.C. 1601 et seq.\20\ More
recently, on January 27, 2021, the Acting Secretary of Homeland
Security issued a Secretarial Determination of National Emergency.
Moreover, state and local jurisdictions throughout the United States
continue to engage in various social distancing practices and other
efforts to reduce and mitigate against further spread of COVID-19,
including closing or reducing service times at government offices and
by accepting in-person visits by appointment only.
---------------------------------------------------------------------------
\19\ HHS, ``Determination that a Public Health Emergency
Exists,'' https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
\20\ Proclamation 9994 of Mar. 13, 2020 on Declaring a National
Emergency Concerning the Novel Coronavirus Disease (COVID-19)
Outbreak, 85 FR 15337 (Mar. 18, 2020).
---------------------------------------------------------------------------
[[Page 23239]]
D. DHS Final Rule Extending the Card-Based Deadline
Considering the impact of the COVID-19 pandemic on state and local
government operations and the desire to reduce further spread by
encouraging continued social distancing, in April 2020 DHS issued a
final rule extending the REAL ID card-based enforcement date for one
year until October 1, 2021.\21\ DHS took this action to assist the
states in avoiding in-person driver's licensing agency visits and in
recognition of the fact that, as a result of the pandemic, most if not
all states severely curtailed driver's licensing agency operations and
service hours and authorized extensions for expiring driver's licenses.
---------------------------------------------------------------------------
\21\ 85 FR 23205 (Apr. 27, 2020).
---------------------------------------------------------------------------
III. Further Extending the Card-Based Enforcement Deadline
Notwithstanding the substantial progress made towards full REAL ID
implementation, the Secretary recognizes that significant challenges
persist with full REAL ID enforcement in the current environment. The
outbreak and continued spread of COVID-19 has significantly disrupted
the daily lives and activities of all Americans. It has shifted
priorities and severely curtailed daily interactions. In important
respects, it has had an especially severe impact on low-income
communities, those in ill health, and the elderly. To limit exposure
and reduce the chance of transmission, state and local government
offices continue to operate at limited capacity, provide remote
services, or, in some cases, remain temporarily closed to the
public.\22\ Additionally, some states continue to authorize grace
periods and extensions to those with expiring licenses as a further way
to avoid in-person contact and mitigate risks to the health and safety
of the public and state government employees.
---------------------------------------------------------------------------
\22\ Individuals should check with their state DMV for policies
and guidance on license issuance and renewals and other services
during the disruption caused by COVID-19.
---------------------------------------------------------------------------
DHS recognizes the continuing impact these disruptions are creating
on the ability of many individuals to obtain a REAL ID compliant
license or identification card before October 1, 2021. DHS also
recognizes that these disruptions have had a particularly severe effect
on some vulnerable subpopulations. Moreover, the Secretary recognizes
the importance of social distancing, and with the commitments to
fairness and equity in mind,\23\ is taking this action to assure the
public that there is no need to visit a state driver's licensing agency
to obtain a REAL ID document at this time.
---------------------------------------------------------------------------
\23\ See E.O. 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, 86 FR 7009
(published Jan. 25, 2021); E.O. 13563, Improving Regulation and
Regulatory Review, 76 FR 3821 (published Jan. 21, 2011).
---------------------------------------------------------------------------
Accordingly, the Secretary is extending the date by which
individuals must obtain a REAL ID license or identification card to use
that document for official purposes until May 3, 2023. This extension
is intended to provide sufficient time for DMVs across the country to
fully reopen in-person services. A safe and sustained reopening of in-
person services is necessary to meaningfully improve upon the current
0.5 percent REAL ID issuance rate. As noted above, at the current 0.5
percent REAL ID issuance rate, DHS estimates that approximately 46
percent of the population eligible for a REAL ID license will have one
by the current October 1, 2021 full enforcement date. DHS believes that
such an outcome would result in lengthy delays at airport security
checkpoints and significant inconvenience to the traveling public.
Moreover, DHS anticipates that the additional time provided by this
extension should be sufficient for states to implement and benefit from
recent and potential future changes to the REAL ID issuance process.
For instance, a provision of the REAL ID Modernization Act allows
states to immediately stop requiring applicants to provide separate
physical documentation of a Social Security account number. This
flexibility, which would reduce the burden on applicants and may in
some cases help applicants avoid return trips to the DMV, has yet to be
implemented in all states. In addition, also consistent with the REAL
ID Modernization Act, DHS is considering issuing regulations
authorizing new procedures for the electronic presentation of
documents, which may allow for a more rapid and socially distanced
issuance process. DHS requires time to develop such regulations, and
states would require time for implementation.
Finally, to avoid any confusion about the ability of federal
agencies to continue to accept certain non-compliant licenses and
identification cards issued under Sec. 37.71, DHS also is extending
the date by which federal agencies may continue to accept these
licenses and identification cards for official purposes until the end
of May 2, 2023. Although some agencies, including TSA, accept these
licenses and identification cards for official purposes, others may
decide not to accept, or currently do not accept, non-compliant marked
cards for official purposes. Individuals who need to visit a federal
facility, building, or office should check in advance whether the
agency requires identification for access purposes and, if they do, the
forms of identification they accept.
IV. Regulatory Analysis
A. Administrative Procedure Act
DHS takes this action without prior notice and public comment, but
welcomes comment on all aspects of the action.
Sections 553(b) and (d) of the Administrative Procedure Act (5
U.S.C. 553) authorize agencies to dispense with certain rulemaking
procedures when they find good cause to do so. Under section 553(b),
the requirements of notice and opportunity to comment do not apply when
the agency for good cause finds that these procedures are
``impracticable, unnecessary, or contrary to the public interest.''
Section 553(d) allows an agency, upon finding good cause, to make a
rule effective immediately, thereby avoiding the 30-day delayed
effective date requirement in section 553.
This interim final rule recognizes the need to extend the card-
based enforcement deadline in light of the significant disruption and
uncertainty in government operations now being caused by the COVID-19
virus, as well as the need to encourage appropriate social distancing
behavior. October 1, the previous deadline, is merely five months away,
and a notice-and-comment process would mean continuing uncertainty for
state and local governments, for airlines, for travelers, and for
numerous others. As also noted, many state and local government offices
are operating at limited capacity. Some of them are providing remote
services; some of them are closed to the public. In addition, many
states are continuing to curtail driver's licensing agency operations
and service hours and have authorized extensions for expiring driver's
licenses. These restrictions are making it unusually difficult for many
people (especially those in certain regions or in vulnerable groups,
including those who are in poor health) to do what is required to
obtain REAL-ID.
In these circumstances, delaying the change to the regulation's
enforcement date by first undergoing notice and comment would impede
planning, would lead to undue uncertainty, and could produce serious
unfairness. It would be contrary to the public interest,
[[Page 23240]]
as an expeditious regulatory announcement of the new deadline is
necessary for state and individual planning purposes. These factors
suggest that delays associated with notice and comment rulemaking would
potentially undermine critical public health efforts at the federal,
state, territorial, or local level. DHS therefore has good cause to
bypass such procedures, while also welcoming comments on all aspects of
this action.
B. Paperwork Reduction Act
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
C. Executive Orders 12866 and 13563 Assessment
This rule constitutes a ``significant regulatory action'' under
Executive Order 12866, as supplemented by Executive Order 13563, and
therefore has been reviewed by the Office of Management and Budget
(OMB). Executive Order 12866 defines ``significant regulatory action''
as one that is likely to result in a rule that may (1) have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local, or Tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights or
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. DHS is proceeding
under the emergency provision at Executive Order 12866 Section
6(a)(3)(D) based on the urgent needs described above.
D. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), requires Federal agencies to consider the
potential impact of regulations on small businesses, small government
jurisdictions, and small organizations during the development of their
rules. This rule, however, makes changes for which notice and comment
are not necessary. Accordingly, DHS is not required to prepare a
regulatory flexibility analysis. See 5 U.S.C. 603, 604.
E. Executive Order 13132 (Federalism)
A rule has federalism implications under Executive Order 13132,
``Federalism,'' if it has a substantial direct effect on state
governments, on the relationship between the national government and
the states, or on the distribution of power and responsibilities among
the various levels of government. DHS has analyzed this rule under that
Order and has determined that although this rule affects the states, it
does not impose substantial direct compliance costs or preempt state
law. In fact, the rule is responsive to concerns expressed by state
agencies regarding the upcoming deadlines. DHS has determined that the
rule is consistent with Executive Order 13132.
F. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 requires Federal agencies
to assess the effects of their discretionary regulatory actions. In
particular, the Unfunded Mandates Reform Act addresses actions that may
result in the expenditure by a state, local, or Tribal government, in
the aggregate, or by the private section of $100 million (adjusted for
inflation) or more in any one year. This rule will not result in such
an expenditure.
G. Executive Order 13175 (Tribal Consultation)
This rule does not have Tribal Implications under Executive Order
13175, ``Consultation and Coordination with Indian Tribal
Governments,'' because it does not have a substantial direct effect on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
H. Environment
DHS reviews proposed actions to determine whether the National
Environmental Policy Act (NEPA) applies to them and, if so, what degree
of analysis is required. DHS Directive 023-01 Rev. 01 (Directive) and
Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish
the procedures that DHS and its components use to comply with NEPA and
the Council on Environmental Quality (CEQ) regulations for implementing
NEPA, 40 CFR parts 1500 through 1508.
The CEQ regulations allow federal agencies to establish, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') which experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require an Environmental Assessment (EA) or
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4.
For an action to be categorically excluded, it must satisfy each of the
following three conditions: (1) The entire action clearly fits within
one or more of the categorical exclusions; (2) the action is not a
piece of a larger action; and (3) no extraordinary circumstances exist
that create the potential for a significant environmental effect.
Instruction Manual section V.B(2)(a)-(c).
The delay effectuated by this rule fits within categorical
exclusion A3(a) ``Promulgation of rules . . . of a strictly
administrative or procedural nature.'' Instruction Manual, Appendix A,
Table 1. Furthermore, the rule is not part of a larger action and
presents no extraordinary circumstances creating the potential for
significant environmental impacts. Therefore, the rule is categorically
excluded from further NEPA review.
List of Subjects in 6 CFR Part 37
Document security, Driver's licenses, Identification cards, Motor
vehicle administrations, Physical security.
The Amendments
For the reasons set forth above, the Department of Homeland
Security amends 6 CFR part 37 as follows:
PART 37--REAL ID DRIVER'S LICENSES AND IDENTIFICATION CARDS
0
1. The authority citation for part 37 continues to read as follows:
Authority: 49 U.S.C. 30301 note; 6 U.S.C. 111, 112.
Subpart A--General
0
2. In Sec. 37.5, revise paragraphs (b) and (c) to read as follows:
Sec. 37.5 Validity periods and deadlines for REAL ID driver's
licenses and identification cards.
* * * * *
(b) On or after May 3, 2023, Federal agencies shall not accept a
driver's license or identification card for official purposes from any
individual unless such license or card is a REAL ID-compliant driver's
license or identification card issued by a State that has been
determined by DHS to be in full compliance as defined under this
subpart.
(c) Through the end of May 2, 2023, Federal agencies may accept for
official
[[Page 23241]]
purposes a driver's license or identification card issued under Sec.
37.71. On or after May 3, 2023, Federal agencies shall not accept for
official purposes a driver's license or identification card issued
under Sec. 37.71.
Alejandro N. Mayorkas,
Secretary.
[FR Doc. 2021-09219 Filed 4-30-21; 8:45 am]
BILLING CODE 9110-9M-P
