Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes; Phased Approach for Card-Based Enforcement, 74137-74161 [2024-20616]
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74137
Proposed Rules
Federal Register
Vol. 89, No. 177
Thursday, September 12, 2024
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.
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
Transportation Security
Administration (TSA), Department of
Homeland Security (DHS).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
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:
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• 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: george.petersen@
tsa.dhs.gov.
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.
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• 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
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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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 Stateissued DL/IDs for official purposes to
determine with greater accuracy
whether individuals presenting a DL/ID
are who they say they are.
Pursuant to the current REAL ID
regulations, after REAL ID card-based
enforcement begins on May 7, 2025,
Federal agencies may only accept Stateissued 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 cardbased enforcement on May 7, 2025.
However, as of January 2024, only
approximately 56 percent of DL/IDs in
circulation nationally are REAL IDcompliant.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 IDcompliant.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.
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
36
CFR 37.5(b).
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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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.
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 noncompliant 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 IDcompliant 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
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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experience as a result of the transition
to full enforcement.8
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
8 ‘‘Full enforcement’’ or ‘‘full card-based
enforcement’’ means that an agency only accepts
REAL ID-compliant DL/IDs for official purposes.
9 Id.
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identification for use in, among other
activities, boarding aircraft and
accessing vulnerable facilities.10
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
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 ‘‘cardbased’’ 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 IDcompliant jurisdiction.
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
10 Id.
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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.
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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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
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.
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 cardbased 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,
17 6
CFR 37.71; REAL ID Act sec. 202(d)(11).
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).
19 Secure Identification State Progress ReportFiscal Year 2012 Report to Congress.
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-2021-00190002. 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.
18 See
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74139
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
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
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 IDcompliant 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.
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.
22 88
FR 14473.
five states that only offer REAL IDcompliant DL/IDs are Florida, Georgia, Mississippi,
Texas, and Wyoming.
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.
23 The
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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 IDcompliant 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 inperson 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 IDcompliant 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 IDcompliant 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
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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 prepandemic number. Second, REAL IDcompliant 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 prepandemic 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
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 IDcompliant 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
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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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 cardbased 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 cardbased 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 IDcompliant 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.
Today, the REAL ID adoption rate
continues to remain well below the prepandemic 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 non26 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/CRPT109hrpt72.pdf (last visited June 17, 2024).
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Federal Register / Vol. 89, No. 177 / Thursday, September 12, 2024 / Proposed Rules
REAL ID-compliant IDs for Federal
official purposes when enforcement
begins on May 7, 2025. The populationwide 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 IDcompliant 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.
Given that approximately 56 percent
of DL/IDs in circulation are REAL IDcompliant 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
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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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.
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 cardbased requirements under a phased
approach after the deadline, for a twoyear 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
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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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 cardbased 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).
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 ID29 DHS Releases Phased Enforcement Schedule
for REAL ID (Dec. 20, 2013), available at https://
www.dhs.gov/news/2013/12/20/dhs-releasesphased-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-travelersupcoming-2018-real-id-airport-enforcement.
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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.
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 cardbased 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
31 For example, Oregon has recently approved an
increase in DMV staff dedicated to issuing REAL IDcompliant 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).
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-
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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.
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
Soft-Target-Crowded-Place-Security-Plan-Overview052018-508_0.pdf (last visited April 18, 2024).
34 See REAL ID Act of 2005 Implementation: An
Interagency Security Committee Guide (2019), p. 4–
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should not impact access to Federal
facilities that do not require
identification (for example, public areas
of the Smithsonian museums). Cardbased 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.
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
7, available at https://www.cisa.gov/resources-tools/
resources/isc-guide-real-id-act-2005implementation.
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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 ‘‘threestrikes’’ 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.
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
35 More detailed discussion of these options is
provided in section D. below.
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.
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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
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.
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 cardbased 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 IDcompliant 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 IDcompliant cards. Agencies who decide
to use a phased enforcement plan may
choose to implement plans that reach
full enforcement in less than 2 years,
38 https://www.dhs.gov/real-id.
39 Id.
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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 IDcompliant 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
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-20060030-10704. pgs. 129–130.
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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 IDcompliant DL/IDs.
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 § 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.
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 cardbased enforcement deadline to allow for
more time for the adoption rate to
increase. However, DHS believes that
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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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 IDcompliant 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.
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
42 Supra
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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
43 DHS Launches ‘‘Be Your REAL ID Self’’ Public
Awareness Campaign, January 15, 2021, https://
note 26.
Frm 00008
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.
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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
www.dhs.gov/real-id/news/2021/01/15/dhslaunches-be-your-real-id-self-public-awarenesscampaign.
44 Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users,
Public Law 109–59, August 10, 2005.
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.
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D. Phased Enforcement Guidance
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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 crossborder 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.
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).
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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
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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 timelimited 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
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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
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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
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
74147
(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
Low
Discount
rate
(%)
Category
Primary
I
Year
dollar
High
I
I
I
Time
horizon
(years)
Notes
Benefits
Annualized Monetized ........................................................................
Annualized Quantified, But Non-Monetized .......................................
ddrumheller on DSK120RN23PROD with PROPOSALS1
Unquantified .......................................................................................
45 58
FR 51735 (Oct. 4, 1993).
FR 3821 (Jan. 21, 2011).
47 88 FR 21879 (Apr. 11, 2023).
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N/A
N/A
I
N/A
N/A
I
Jkt 262001
PO 00000
N/A
N/A
2
2
I
I
N/A
N/A
Not Quantified.
Not Quantified.
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.
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)).
46 76
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49 Public Law 104–4, 109 Stat. 66 (Mar. 22, 1995)
(codified at 2 U.S.C. 1181–1538).
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TABLE 1—OMB CIRCULAR A–4 ACCOUNTING STATEMENT—Continued
[$ millions]
Estimates
Units
Category
Primary
Low
I
Year
dollar
High
I
I
Discount
rate
(%)
I
Time
horizon
(years)
Notes
Costs
Annualized Monetized ........................................................................
Annualized Quantified, But Non-Monetized .......................................
Unquantified .......................................................................................
$0.87
N/A
N/A
N/A
I
I
N/A
N/A
I
2023
N/A
2
2
I
2
N/A
I
Not Quantified.
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 Transfers .........................
N/A
N/A
I
From/To ..............................................................................................
I
N/A
N/A
2
I
I
From:
Other Annualized Monetized Transfers .............................................
N/A
N/A
I
From/To ..............................................................................................
N/A
I Not Quantified.
N/A
I Not Quantified.
N/A
Not Quantified.
To:
I
N/A
N/A
2
I
From:
I
To:
Net Benefits
Annualized Monetized Net Benefits ...................................................
N/A
N/A
N/A
N/A
2
Effects
ddrumheller on DSK120RN23PROD with PROPOSALS1
State, Local, and/or Tribal Government .............................................
Small Business ...................................................................................
Wages ................................................................................................
Growth ................................................................................................
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 IDcompliant jurisdiction.50
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 ID50 See 88 FR 14473 (Mar. 9, 2023), codified at 6
CFR 37.5.
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None
None.
None.
Not measured.
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 subjectmatter 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
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enforcement plan, individuals without a
REAL ID-compliant DL/ID or acceptable
alternative would be unable to board
federally regulated aircraft upon cardbased 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 cardbased enforcement may also create an
increased demand on States to issue
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/DHSSoft-Target-Crowded-Place-Security-Plan-Overview052018-508_0.pdf. Accessed on Apr. 17, 2024.
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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 nonREAL ID-compliant DL/IDs for official
Federal purposes may also occur.
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 IDcompliant DL/IDs during initial phases
of enforcement.
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.
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c. Baseline Summary
The baseline represents DHS’ best
assessment of what the world would be
like absent this regulatory action.53
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
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.
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.
54 73 FR 5272, codified at 6 CFR part 37.
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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.
Absent this regulatory action,
beginning on that date, all Federal
agencies would be prohibited from
accepting non-REAL ID-compliant Stateissued 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.
DHS estimates that by the card-based
enforcement date, approximately
between 61 and 66 percent of all Stateissued DL/IDs would be REAL IDcompliant 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 cardbased 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
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.
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 cardbased 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.
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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.
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 IDcompliant 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
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
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 noncompliant IDs would be able to use a passport as
an alternate form of identification.
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.
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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
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
2019
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0%–24% ...........................................................................................................................
25%–49% .........................................................................................................................
50%–74% .........................................................................................................................
75%–100% .......................................................................................................................
1. Compounded Monthly Growth Rates
(CMGR)
the national CMGR for the adoption of
REAL IDs was 0.56 percent.63
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,
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
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.
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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) ∧
(1 ÷ 12)¥1).
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.
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October
2020
31
11
6
8
22
15
9
10
October
2023
12
16
12
16
January
2024
9
18
12
17
DHS estimates a total population of
355,966,451 in January 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.
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 IDcompliant 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
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.
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).
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ddrumheller on DSK120RN23PROD with PROPOSALS1
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
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
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.
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 × (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) ∧ (1 ÷ 13)¥1).
VerDate Sep<11>2014
16:43 Sep 11, 2024
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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.
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 IDcompliant.74
To forecast beyond October 2025,
under the status quo of full enforcement
beginning May 2025, DHS assumes a 50percent 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
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.
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/reportsand-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.
75 11.5 Percent Increase in REAL IDs (One Year
After Card-Based Enforcement) = (23 Percent Initial
Surge ÷ 2) × 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) ∧ (1 ÷12)¥1).
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74151
October 2026, one and a half years after
the card-based enforcement deadline,
approximately 83 percent of DL/IDs in
circulation would be REAL IDcompliant.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
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
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 oneand-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) × 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) ∧ (1 ÷12)¥1).
78 Supra note 76.
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 noncompliant 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.
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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.
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
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.
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 4years.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.
Using the aforementioned CMGRs,
0.56 percent and 1.03 percent, DHS
estimates that approximately 61 percent
(lower-end of forecast) and 66 (upperend 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
(0.56 percent CMGR)
Approx. IDs in Circulation ........................................................................................................
289,641,636
Forecasted Number of REAL IDs ............................................................................................
REAL IDs as a Percentage of All IDs .....................................................................................
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 IDcompliant by the card-based
enforcement date to meet the 75 percent
I
Last 4 year trend
(1.03 percent CMGR)
177,187,465
61.2%
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.
191,027,256
66.0%
I
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
TABLE 4—NUMBER OF REAL IDS IN MAY 2025 TO ACHIEVE 75 PERCENT THRESHOLD
Last 12 month trend
(0.56 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 .........................................................
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Last 4 year trend
I (1.03 percent CMGR)
82 Department of Homeland Security. April 28,
2008. Regulatory Evaluation for REAL ID Program.
Docket DHS–2006–0030. https://
www.regulations.gov/document/DHS-2006-003010704.
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.
84 Supra note 76.
85 16 months between January 2024 and May
2025 (card-based enforcement begins).
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177,187,465 (61.2%) I
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
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Sfmt 4702
191,027,256 (66.0%)
I
I
75% Assumption
(1.85 percent CMGR)
217,231,227
2024 ÷ 99,076,573 REAL IDs in January 2020) ∧ (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.
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) ∧ (1 ÷
16)¥1).
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TABLE 4—NUMBER OF REAL IDS IN MAY 2025 TO ACHIEVE 75 PERCENT THRESHOLD—Continued
Last 12 month trend
(0.56 percent CMGR)
Difference Between Threshold and 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 cardbased 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
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 noncompliant 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 cardbased enforcement date. Using this
methodology, DHS calculates a 0.79
percent CMGR which would likely
Last 4 year trend
(1.03 percent CMGR)
40,043,762 (13.8%)
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.
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
75% Assumption
(1.85 percent CMGR)
26,203,971 (9.0%)
0 (0.0%)
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
Month
Phased enforcement
scenario 1
(constant rates)
Baseline
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Lower bound
(%)
May 24 .................................................................................
Nov 24 ..................................................................................
May 25 .................................................................................
Nov 25 ..................................................................................
May 26 .................................................................................
Nov 26 ..................................................................................
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.
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63.8
70.0
75.7
79.7
83.6
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Upper bound
(%)
57.6
59.3
61.2
63.1
65.0
67.0
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.
Phased enforcement
scenario 2
(post enforcement change)
58.7
62.2
66.0
69.9
74.1
78.6
Lower bound
(%)
57.6
59.3
61.2
64.0
66.9
69.9
Upper bound
(%)
58.7
62.2
66.0
69.0
72.1
75.4
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.
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TABLE 5—REAL ID COMPLIANCE BY SCENARIO—Continued
Month
Phased enforcement
scenario 1
(constant rates)
Baseline
Lower bound
(%)
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May 27 .................................................................................
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
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.
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Upper bound
(%)
69.1
83.4
Lower bound
(%)
73.1
Upper bound
(%)
78.8
holders could present compared to full
and immediate enforcement under the
baseline.
Agencies on Track To Not Accept
Noncompliant Marked Cards on or
Before the Card-Based Enforcement Date
a. Phased Enforcement Population
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.
Under the REAL ID Act and
regulations, on and after the card-based
enforcement date, Federal agencies are
prohibited from accepting non-REAL IDcompliant 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.
92 Transportation
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scenario 2
(post enforcement change)
93 Federal Register. Retrieved from https://
www.federalregister.gov/agencies. Accessed on May
10, 2023.
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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
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-idfaqs. Accessed on August 2nd, 2024.
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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
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
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
74155
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
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.
TABLE 6—COMPENSATION RATES PER HOUR
Labor category
Annual
wage
Compensation
factor 100
Annual
compensation
rate
Compensation
rate per hour
a
b
c=a×b
d = c ÷ 2,087
ddrumheller on DSK120RN23PROD with PROPOSALS1
GS–13 ................................................................................................................
GS–14 ................................................................................................................
GS–15 ................................................................................................................
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.
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.
97 Salary Table No. 2023–DCB, Pay & Leave:
Salaries & Wages, Office of Personnel Management,
https://www.opm.gov/policy-data-oversight/payleave/salaries-wages/salary-tables/23Tables/html/
VerDate Sep<11>2014
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$119,482
141,192
166,079
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.
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
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1.353
1.349
1.346
$161,673
190,482
223,507
$77.47
91.27
107.09
Reconciliation Act of 1985 (Pub. Law 99–272, April
7, 1986).
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TABLE 6—COMPENSATION RATES PER HOUR—Continued
Labor category
Annual
wage
Compensation
factor 100
Annual
compensation
rate
Compensation
rate per hour
a
b
c=a×b
d = c ÷ 2,087
SES ....................................................................................................................
176,561
1.345
237,416
113.76
Note: Calculation may not be exact due to rounding.
DHS Costs
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 80hour burden and the weighted average
guidance development compensation
rate of $86.64 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
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.
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]
Cost to
develop
guidance
Year
Total cost
Cost to
coordinate
Cost to
publish list
Undiscounted
I
a
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2024: 1 .........................................................................................
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.
101 $86.64 guidance development compensation
per hour = (45 percent GS–13 burden × $77.47 GS–
13 compensation per hour) + (45 percent GS–14
burden × $91.27 GS–14 compensation per hour) +
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b
$6,931
c
$0
(10 percent GS–15 burden × $107.09 GS–15
compensation per hour).
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 × $77.47 GS–13
compensation per hour) + (50 percent GS–14
burden × $91.27 GS–14 compensation per hour).
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Fmt 4702
Sfmt 4702
Discounted
at 2%
d=a+b+c
$0
$6,931 I
$6,795
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
× 16 hours × $84.37 = $24,298.
105 $84.37 weighted average publishing
compensation per hour = (50 percent GS–13 burden
× $77.47 GS–13 compensation per hour) + (50
percent GS–14 burden × $91.27 GS–14
compensation per hour).
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TABLE 7—TOTAL COST TO DHS—Continued
[$ Actual dollars, 2023 dollars]
Year
Total cost
Cost to
develop
guidance
Cost to
coordinate
Cost to
publish list
a
b
c
Undiscounted
Discounted
at 2%
d=a+b+c
2025: 2 .........................................................................................
0
24,298
1,350
25,648
24,652
Total ......................................................................................
6,931
24,298
1,350
32,579
31,447
ddrumheller on DSK120RN23PROD with PROPOSALS1
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
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
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
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.
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 × $91.27 GS–14
compensation per hour) + (50 percent GS–15
burden × $107.09 GS–15 compensation per hour).
108 Note: Calculation may not be exact due to
rounding.
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 × $107.09 GS–15
compensation per hour) + (50 percent SES burden
× $113.76 SES compensation per hour).
110 Note: Calculation may not be exact due to
rounding.
111 $100.64 weighted average plan development
compensation per hour = (45 percent GS–14 burden
× $91.27 GS–14 compensation per hour) + (45
percent GS–15 burden × $107.09 GS–15
compensation per hour) + (10 percent SES burden
× $113.76 SES compensation per hour).
112 DHS assumes 4 percent of the 434 Federal
agencies would submit phased enforcement plans,
or about 18 agencies (see Phased Enforcement
Population).
113 Note: Calculation may not be exact due to
rounding.
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TABLE 8—TOTAL QUANTIFIED COST TO FEDERAL AGENCIES
[$ Actual dollars, 2023 dollars]
Year
Plan
determination
cost
Plan
development
cost
Total cost to Federal agencies
Familiarization
cost
a
b
c
d=a+b+c
Undiscounted
Discounted
at 2%
2024: 1 ...........................................................................
2025: 2 ...........................................................................
$94,145
0
$1,198,136
0
$407,594
0
$1,699,874
0
$1,666,543
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.
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
Year
Cost to
DHS
Cost to Federal
agencies
a
b
Undiscounted
Discounted
at 2%
c=a+b
2024: 1 .......................................................................................................
2025: 2 .......................................................................................................
$6,931
25,648
$1,699,874
0
$1,706,805
25,648
$1,673,339
24,652
Total ....................................................................................................
Annualized ..........................................................................................
32,579
....................
1,699,874
..............................
1,732,453
..........................
1,697,991
874,549
Note: Totals may not add due to rounding.
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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
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.
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lower compliance rates.115 The
percentage of DL/IDs that are REAL IDcompliant 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.
A higher proportion of individuals
with compliant identification also
reduces potential queuing and
associated delays. For example, if an
individual presents valid, non-REAL IDcompliant 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).
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;
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.
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.
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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.
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
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.
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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 IDcompliant 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
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
118 71
FR 68412 (November 24, 2006).
Department: Comprehensive Strategy
Needed to Improve Passport Operations, United
States Government Accountability Office (Jul. 28,
2008), available at https://www.gao.gov/assets/gao08-891.pdf.
119 State
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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 cardbased 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 IDcompliant 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
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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 cardbased 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.
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
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).
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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
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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 IDcompliant 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.
ddrumheller on DSK120RN23PROD with PROPOSALS1
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
121 See
73 FR 5272 (Jan. 29, 2008).
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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.
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 § 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.
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:
Dated: September 6, 2024.
David P. Pekoske,
Administrator.
PART 37—REAL ID DRIVER’S
LICENSES AND IDENTIFICATION
CARDS
DEPARTMENT OF ENERGY
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.
2. Amend § 37.5 by revising
paragraphs (b) and (c) and adding
paragraph (d) and (e) to read as follows:
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[FR Doc. 2024–20616 Filed 9–11–24; 8:45 am]
BILLING CODE 9110–05–P
Federal Energy Regulatory
Commission
18 CFR Part 35
[Docket No. RM24–9–000]
■
§ 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 § 37.71.
Except as provided in paragraph (d) of
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Alliance for Tribal Clean Energy;
Notice of Petition for Rulemaking and
Intent To Hold Tribal Consultation
Meetings
Take notice that, on August 9,
2024, the Alliance for Tribal Clean
Energy, pursuant to Rule 207(a)(4) of the
Federal Energy Regulatory
Commission’s (Commission) Rules of
Practice and Procedure, filed a petition
requesting that the Commission conduct
an expedited rulemaking to revise the
pro forma Large Generator
Interconnection Procedures (LGIP) to
defer the time at which certain tribal
energy developers must post
commercial readiness deposits and
exempt them from potential withdrawal
penalties. The Commission intends to
conduct Tribal consultation per the
Commission’s Policy Statement on
Consultation with Indian Tribes in
SUMMARY:
E:\FR\FM\12SEP1.SGM
12SEP1
Agencies
[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]
========================================================================
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.
========================================================================
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).
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\8\ ``Full enforcement'' or ``full card-based enforcement''
means that an agency only accepts REAL ID-compliant DL/IDs for
official purposes.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\9\ Id.
\10\ Id.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\19\ Secure Identification State Progress Report-Fiscal Year
2012 Report to Congress.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\23\ The five states that only offer REAL ID-compliant DL/IDs
are Florida, Georgia, Mississippi, Texas, and Wyoming.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
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\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.
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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.
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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\
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\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.
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\121\ See 73 FR 5272 (Jan. 29, 2008).
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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