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Rule2024-23881

Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes; Waiver for Mobile Driver's Licenses

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Published

October 25, 2024

Effective

November 25, 2024

Issuing agencies

Homeland Security Department

Abstract

The Department of Homeland Security (DHS) is amending the REAL ID regulations to waive, on a temporary and State-by-State basis, the regulatory requirement that mobile or digital driver's licenses or identification cards (collectively "mobile driver's licenses" or "mDLs") must be compliant with REAL ID requirements to be accepted by Federal agencies for official purposes, as defined by the REAL ID Act, when full enforcement of the REAL ID Act and regulations begins on May 7, 2025.

Full Text

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[Federal Register Volume 89, Number 207 (Friday, October 25, 2024)]
[Rules and Regulations]
[Pages 85340-85386]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23881]

[[Page 85339]]

Vol. 89

Friday,

No. 207

October 25, 2024

Part III

Department of Homeland Security

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6 CFR Part 37

Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Waiver for Mobile
Driver's Licenses; Final Rule

Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 /
Rules and Regulations

[[Page 85340]]

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DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 37

[Docket No. TSA-2023-0002]
RIN 1652-AA76

Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Waiver for Mobile
Driver's Licenses

AGENCY: Transportation Security Administration (TSA), Department of
Homeland Security (DHS).

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is amending the REAL
ID regulations to waive, on a temporary and State-by-State basis, the
regulatory requirement that mobile or digital driver's licenses or
identification cards (collectively ``mobile driver's licenses'' or
``mDLs'') must be compliant with REAL ID requirements to be accepted by
Federal agencies for official purposes, as defined by the REAL ID Act,
when full enforcement of the REAL ID Act and regulations begins on May
7, 2025.

DATES: Effective date: This rule is effective November 25, 2024.
Incorporation by Reference: The incorporation by reference of
certain material listed in the rule is approved by the Director of the
Federal Register as of November 25, 2024. The incorporation by
reference of certain other material listed in the rule was approved by
the Director of the Federal Register as of January 14, 2016.

FOR FURTHER INFORMATION CONTACT:
Technical questions: George Petersen, Senior Program Manager, REAL
ID Program, Enrollment Services and Vetting Programs, Transportation
Security Administration; telephone: (571) 227-2215; email:
<a href="/cdn-cgi/l/email-protection#f7909298859092d98792839285849299b7838496d9939f84d9909881">[email&#160;protected]</a>.
Legal questions: Anurag Maheshwary, Attorney Advisor, Office of
Chief Counsel, Transportation Security Administration; telephone: (571)
227-4812; email: <a href="/cdn-cgi/l/email-protection#34555a414655531a59555c51475c4355464d744047551a505c471a535b42">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Document

You can find an electronic copy of this rulemaking using the
internet by accessing the Government Publishing Office's web page at
<a href="https://www.govinfo.gov/app/collection/FR/">https://www.govinfo.gov/app/collection/FR/</a> to view the daily published
Federal Register edition or accessing the Office of the Federal
Register's web page at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a>. Copies are also
available by contacting the individual identified for ``Technical
Questions'' in the FOR FURTHER INFORMATION CONTACT section. Make sure
to identify the docket number of this rulemaking.

Abbreviations and Terms Used in This Document

AAMVA--American Association of Motor Vehicle Administrators
CA/Browser Forum--Certification Authority Browser Forum
CISA--Cybersecurity and Infrastructure Security Agency
DHS--U.S. Department of Homeland Security
EDL--Enhanced driver's license and identification card
FIPS--Federal Information Processing Standards
HSM--Hardware security module
IBR--Incorporation by reference or Incorporate by reference
IEC--International Electrotechnical Commission
ISO--International Organization for Standardization
IT--Information technology
mDL--Mobile driver's license and mobile identification card
NIST--National Institute for Standards and Technology
NPRM--Notice of proposed rulemaking
OFR--Office of Federal Register
OMB--Office of Management and Budget
PUB--Publication
RFI--Request for information
SP--Special publication
TSA--Transportation Security Administration

Table of Contents

I. Executive Summary
A. Purpose of this Rulemaking
B. Summary of the Major Provisions
C. Need for a Multi-Phased Rulemaking
D. Costs and Benefits
II. Background
A. REAL ID Act, Regulations, and Applicability to mDLs
B. Rulemaking History
C. mDL Overview
D. Industry Standards and Government Guidelines for mDLs
III. General Discussion of the Rulemaking
A. Changes Between NPRM and Final Rule
B. Summary of Regulatory Provisions
C. Specific Provisions
D. Impacted Stakeholders
E. Use Cases Affected by This Rule
F. Severability
IV. Discussion of Comments
A. Waiver Eligibility
B. Conditions on Federal Agencies Accepting mDLs
C. Waiver Application Criteria
D. TSA Waiver Application Guidance
E. General Concerns About mDLs
F. Scope of Rulemaking and mDL Acceptance
G. Privacy
H. Waiver Validity Period and Renewals
I. Vendor and Technology ``Lock-in'' Effects
J. Pseudonymous Validation and On-Device Biometric Matching
K. Access to Standards
L. Standards and Standards Development Generally
M. TSA's Identity Verification Policies
N. Paperwork Reduction Act
O. Legal Authority
P. Economic Impact Analysis
Q. Communicating Status of Waiver; System Disruptions
R. Impact of Waiver on States Currently Testing mDLs With TSA
S. Notice for Changes to State mDL Issuance Processes
T. Clarification Regarding ``Days''
U. Audit Requirements
V. Appendix A to Subpart A: mDL Issuance Requirements
W. Protection of Sensitive Security Information in Waiver
Applications
V. Consultation With States and the Department of Transportation
VI. Regulatory Analyses
A. Economic Impact Analyses
B. Paperwork Reduction Act
C. Federalism (E.O. 13132)
D. Customer Service (E.O. 14058)
E. Energy Impact Analysis (E.O. 13211)
F. Environmental Analysis

I. Executive Summary

A. Purpose of This Rulemaking

This rule is part of an incremental, multi-phased rulemaking that
will culminate in the promulgation of comprehensive requirements that
enable States to issue mobile driver's licenses and mobile
identification cards (collectively ``mDLs'') that comply with the REAL
ID Act of 2005 (``REAL ID Act'' or ``Act'') and regulations \1\
[hereinafter ``REAL ID-Compliant'']. In this first phase, the
Transportation Security Administration (TSA) is making two changes to
the current regulations in 6 CFR part 37, ``REAL ID Driver's Licenses
and Identification Cards.'' First, TSA is adding definitions for, among
others, mobile driver's licenses and mobile identification cards. These
definitions provide a precise explanation of those terms as referenced
in the REAL ID Act, which applies to only State-issued driver's
licenses and State-issued identification cards.\2\ Any other types of
identification cards, such

[[Page 85341]]

as those issued by a Federal agency, or commercial, educational, or
non-profit entity, are beyond the scope of the REAL ID Act and
regulations, and hence this rulemaking, because they do not meet the
definition of driver's license or identification card as defined by the
REAL ID Act. The definition of ``mDL'' as used in this rulemaking is
limited strictly to the REAL ID Act and regulations and does not
include ``mDLs'' as defined by other entities.
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\1\ The REAL ID Act of 2005, Division B Title II of the FY05
Emergency Supplemental Appropriations Act, as amended, Public Law
109-13, 119 Stat. 302 (May 11, 2005) (codified at 49 U.S.C. 30301
note) [hereinafter ``REAL ID Act'']; 6 CFR part 37. Effective May
22, 2023, authority to administer the REAL ID program was delegated
from the Secretary of Homeland Security to the Administrator of TSA
pursuant to DHS Delegation No. 7060.2.1.
\2\ See sec. 201 of the REAL ID Act (defining a ``driver's
license'' to include ``driver's licenses stored or accessed via
electronic means, such as mobile or digital driver's licenses, which
have been issued in accordance with regulations prescribed by the
Secretary''; mirroring definition for ``identification card'').
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Second, TSA is establishing a temporary waiver process that permits
Federal agencies to accept mDLs for official purposes,\3\ as defined in
the REAL ID Act and regulations, on an interim basis when full
enforcement begins on May 7, 2025,\4\ but only if TSA has issued a
waiver to the State. To qualify for the waiver, this final rule
requires States to (1) be in full compliance with all applicable REAL
ID requirements as defined in subpart E of this part, and (2) submit an
application demonstrating that they meet the requirements specified in
this rule, which are drawn from 19 industry standards and government
guidelines. The rulemaking incorporates by reference (IBRs) those
standards and guidelines, which cover technical areas such as mDL
communication, digital identity, encryption, cybersecurity, and
network/information system security and privacy.
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\3\ The REAL ID Act defines official purposes as including but
not limited to accessing Federal facilities, boarding Federally
regulated commercial aircraft, entering nuclear power plants, and
any other purposes that the Secretary shall determine. See REAL ID
Act. Notably, because the Secretary has not determined any other
official purposes, the REAL ID Act and regulations do not apply to
Federal acceptance of driver's licenses and identification cards for
other purposes, such as applying for Federal benefits programs,
submitting immigration documents, or other Federal programs.
\4\ DHS, Final Rule, Minimum Standards for Driver's Licenses and
Identification Cards Acceptable by Federal Agencies for Official
Purposes, 88 FR 14473 (Mar. 9, 2023); DHS Press Release, DHS
Announces Extension of REAL ID Full Enforcement Deadline (Dec. 5,
2022), <a href="https://www.dhs.gov/news/2022/12/05/dhs-announces-extension-real-id-full-enforcement-deadline">https://www.dhs.gov/news/2022/12/05/dhs-announces-extension-real-id-full-enforcement-deadline</a> (last visited July 17, 2024).
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As noted above, this final rule is part of an incremental
rulemaking that temporarily permits Federal agencies to accept mDLs for
official purposes until TSA issues a subsequent rule that would set
comprehensive requirements for mDLs. TSA believes it is premature to
issue such requirements before the May 7, 2025 deadline due to the need
for emerging industry standards and government guidelines \5\ to be
finalized.
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\5\ See TSA, Notice of Proposed Rulemaking, Waiver for Mobile
Driver's Licenses, 88 FR 60056, 60063-64 (Aug. 30, 2023)
[hereinafter ``NPRM''].
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The need for this rulemaking arises from TSA's desire to
accommodate and foster the rapid pace of mDL innovation, while ensuring
the intent of the REAL ID Act and regulations are met. Secure driver's
licenses and identification cards are a vital component of our national
security framework. In the REAL ID Act, Congress acted to implement the
9/11 Commission's recommendation that the Federal Government ``set
standards for the issuance of sources of identification, such as
driver's licenses.'' Under the REAL ID Act and regulations, a Federal
agency may not accept for any official purpose a State-issued driver's
license or identification card, either physical or an mDL, that does
not meet specified requirements, as detailed in the REAL ID regulations
(see Part II.A., below, for more discussion on these requirements).
This final rule will result in the development of mDLs with a
higher level of security, privacy, and interoperability features
necessary for Federal acceptance for official purposes. Because the
current regulatory provisions do not include requirements that would
enable States to issue REAL ID-compliant mDLs, several States are
investing significant resources to develop mDLs based on varying and
often proprietary standards, many of which may lack security and
privacy safeguards commensurate with REAL ID requirements and the
privacy needs of users. Without timely regulatory guidance concerning
potential requirements for developing a REAL ID-compliant mDL, States
risk investing in mDLs that are not aligned with emerging industry
standards and government guidelines that may be IBR'd in a future
rulemaking. States, therefore, may become locked-in to existing
solutions and could face a substantial burden to redevelop products
acceptable to Federal agencies under this future rulemaking.
This final rule addresses these concerns by enabling TSA to grant a
temporary waiver to States whose mDLs TSA determines provide sufficient
safeguards for security and privacy, pending finalization of emerging
standards. Although this rule does not set standards for the issuance
of REAL ID-compliant mDLs, it does establish minimum requirements that
States must meet to be granted a waiver so that mDLs can be accepted by
Federal agencies for official purposes. These minimum standards and
requirements ensure that States' investments in mDLs provide minimum
privacy and security safeguards consistent with information currently
known to the TSA.

B. Summary of the Major Provisions

As further discussed in Part II.A., below, mDLs cannot be accepted
by Federal agencies for official purposes when REAL ID full enforcement
begins on May 7, 2025, unless 6 CFR part 37 is amended to address mDLs.
This final rule establishes a process for waiving, on a temporary and
State-by-State basis, the current prohibition on Federal acceptance of
mDLs for official purposes, and enables Federal agencies to accept mDLs
on an interim basis while the industry matures to a point sufficient to
enable TSA to develop more comprehensive mDL regulatory requirements.
The current regulations prohibit Federal agencies from accepting
non-compliant driver's licenses and identification cards, including
both physical cards and mDLs, when REAL ID enforcement begins on May 7,
2025. Any modification of this regulatory provision must occur through
rulemaking (or legislation). Until and unless TSA promulgates
comprehensive mDL regulations that enable States to issue REAL ID-
compliant mDLs, mDLs cannot be developed to comply with REAL ID, and
Federal agencies therefore cannot accept mDLs for official purposes
after REAL ID enforcement begins on May 7, 2025. The rule allows the
Federal government to accept mDLs on an interim basis, but only if TSA
has issued a waiver to such State based on that State's compliance with
all applicable REAL ID requirements as defined in subpart E of this
part, and with the minimum privacy, safety, and interoperability
requirements in this rulemaking. Please see Part II.A., below, for an
explanation of the REAL ID requirement that both cards and issuing
States must be REAL ID compliant.

C. Need for a Multi-Phased Rulemaking

TSA recognizes both that regulations can influence long-term
industry research and investment decisions, and that premature
regulations can distort the choices of technologies, which could harm
competition and innovation. As noted above, there are clear reasons for
TSA to issue requirements for mDLs in the context of REAL ID.
Simultaneously, however, TSA observes that this is a rapidly innovating
market, with multiple industry and government standards and guidelines
necessary to ensure mDL privacy and security still in development.\6\
Accordingly, TSA has concluded that it is premature to promulgate
comprehensive requirements for mDLs while key

[[Page 85342]]

standards are being finalized because of the risk of unintended
consequences, such as chilling innovation and competition in the
marketplace, and ``locking-in'' stakeholders to certain technologies.
TSA is therefore establishing a temporary waiver process with clear
standards and requirements to facilitate the acceptance of mDLs while
the industry matures and moves to accepted standards.
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\6\ See NPRM, 88 FR at 60062-66.
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TSA is proceeding with a multi-phased rulemaking approach. This
``Phase 1'' rule establishes a temporary waiver process that enables
continuing Federal acceptance of mDLs for official purposes when REAL
ID enforcement begins on May 7, 2025, and affords Federal agencies
additional operational experience and data that would inform
comprehensive regulations in the upcoming ``Phase 2'' rulemaking. The
Phase 1 rule is intended to serve as a regulatory bridge until the
emerging standards are finalized and a comprehensive Phase 2 rulemaking
is effective.
TSA anticipates the future Phase 2 rulemaking would repeal the
temporary waiver provisions established in Phase 1 and establish
comprehensive requirements enabling States to issue mDLs that comply
with REAL ID requirements. TSA envisions the Phase 2 rulemaking would
draw heavily from pertinent parts of the emerging standards (pending
review of those final, published documents) to set specific
requirements for security, privacy, and interoperability. In addition,
the Phase 2 rule would distinguish between existing regulatory
requirements that apply only to mDLs versus physical cards. As one
commenter \7\ to a previously-issued Request for Information (RFI)
urged (discussed in Part II.B., below), DHS is taking ``a slow and
careful approach'' to regulation in order to fully understand the
implications of mDLs.
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\7\ See comment from Electronic Privacy Information Center,
<a href="https://downloads.regulations.gov/DHS-2020-0028-0048/attachment_1.pdf">https://downloads.regulations.gov/DHS-2020-0028-0048/attachment_1.pdf</a> (last visited July 17, 2024); DHS, Request for
Information, Mobile Driver's Licenses, 86 FR 20320 (Apr. 19, 2021).
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This multi-phased rulemaking approach supports Executive Order
(E.O.) 14058 of December 13, 2021 (Transforming Federal Customer
Experience and Service Delivery to Rebuild Trust in Government), by
using ``technology to modernize Government and implement services that
are simple to use, accessible, equitable, protective, transparent, and
responsive for all people of the United States.'' \8\ As highlighted
above and discussed in more detail below, allowing acceptance of mDLs
issued by States that meet the waiver requirements enables the public
to more immediately realize potential benefits of mDLs, including
greater convenience, security, and privacy.
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\8\ See 86 FR 71357 (Dec. 16, 2021).
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D. Costs and Benefits

TSA estimates the 10-year total cost of the rule to be $829.8
million undiscounted, $698.1 million discounted at 3 percent ($81.8
million annualized), and $563.9 million discounted at 7 percent ($80.3
million annualized). Affected entities include States, TSA, and relying
parties (Federal agencies that voluntarily choose to accept mDLs for
official purposes).
States incur costs to familiarize themselves with the requirements
of the final rule, purchase access to an industry standard, submit an
mDL waiver application, submit mDL waiver reapplications, and comply
with waiver application requirements. TSA estimates that 40 States will
seek an mDL waiver over the next 10 years at a 10-year State cost of
$813.1 million undiscounted, $683.7 million discounted at 3 percent,
and $552.0 million discounted at 7 percent.
TSA incurs costs associated with purchasing access to industry
standards, reviewing mDL waiver applications and mDL waiver
reapplications, acquiring, installing, and operating mDL readers, and
training transportation security officers. TSA estimates the 10-year
cost to TSA is $10.13 million undiscounted, $8.87 million discounted at
3 percent, and $7.56 million discounted at 7 percent.
Relying parties will incur costs to procure mDL readers should they
voluntarily choose to accept mDLs for official purposes. TSA estimates
the 10-year cost to relying parties is $6.57 million undiscounted,
$5.48 million discounted at 3 percent, and $4.38 million discounted at
7 percent.
TSA also identifies other non-quantified costs that affected
parties may incur. States may incur incremental costs to: monitor and
study mDL technology as it evolves; resolve underlying issues that
could lead to a suspension or termination of an mDL waiver; report
serious threats to security, privacy, or data integrity; report
material changes to mDL issuance processes; remove conflicts of
interest with an independent auditor; and request reconsideration of a
denied mDL waiver application. TSA may incur costs to: investigate
circumstances that could lead to suspension or termination of a State's
mDL waiver; provide notice to States, relying parties, and the public
related to mDL waiver suspensions or terminations; develop an IT
solution that maintains an up-to-date list of States with valid mDL
waivers; develop materials related to process changes to adapt to mDL
systems; and resolve requests for reconsideration of a denied mDL
waiver application. An mDL user may incur costs with additional
application requirements to obtain an mDL. States may also pass on mDL
related costs to the public.\9\ Relying parties may incur costs to
resolve any security or privacy issue with the mDL reader; report
serious threats to security, privacy, or data integrity; verify the
list of States with valid mDL waivers; train personnel to verify mDLs;
and update the public on identification policies.
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\9\ TSA does not possess data to quantify how States may
implement a pass through or recoup costs associated with
implementation of mDLs.
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The final rule provides benefits to affected parties which include,
but are not limited to: promoting higher security, privacy, and
interoperability safeguards; reducing uncertainty in the mDL technology
environment by helping to foster a minimum level of security, privacy
and interoperability; and allowing Federal agencies to continue to
accept mDLs for official purposes when REAL ID enforcement begins.
Also, mDLs themselves may provide additional security benefits by
offering a more secure verification of an individual's identity and
authentication of an individual's credential compared to usage of
physical cards.

II. Background

A. REAL ID Act, Regulations, and Applicability to mDLs

This rulemaking is authorized by the REAL ID Act of 2005 and REAL
ID Modernization Act. The REAL ID Act authorizes the Secretary of
Homeland Security, in consultation with the States and the Secretary of
Transportation, to promulgate regulations to implement the requirements
under the REAL Act.\10\ The REAL ID Modernization Act amended the
definitions of ``driver's license'' and ``identification card'' to
specifically include mDLs that have been issued in accordance with
regulations prescribed by the Secretary of Homeland Security.\11\
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\10\ Sec. 205 of the REAL ID Act.
\11\ Sec. 1001 of the REAL ID Modernization Act, Title X of
Division U of the Consolidated Appropriations Act, 2021, Public Law
116-260, 134 Stat. 2304 [hereinafter ``REAL ID Modernization Act''].
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The REAL ID Act and implementing regulations, 6 CFR part 37, set
minimum requirements for State-issued driver's licenses and
identification cards accepted by Federal agencies for official
purposes, including accessing Federal

[[Page 85343]]

facilities, boarding Federally regulated commercial aircraft, entering
nuclear power plants, and any other purposes that the Secretary shall
determine.\12\ The Act defines ``driver's licenses'' and
``identification cards'' strictly as State-issued documents,\13\ and
the regulations further refine the definition of ``identification
card'' as ``a document made or issued by or under the authority of a
State Department of Motor Vehicles or State office with equivalent
function.'' \14\ The REAL ID Act and regulations do not apply to
identification cards that are not made or issued under a State
authority, such as cards issued by a Federal agency or any commercial,
educational, or non-profit entity.
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\12\ REAL ID Act; 6 CFR part 37.
\13\ Sec. 201 of the REAL ID Act.
\14\ 6 CFR 37.3.
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The regulations include a schedule describing when individuals must
obtain a REAL ID-compliant driver's license or identification card
intended for use for official purposes, known as ``card-based''
enforcement.\15\ Card-based enforcement begins on May 7, 2025.\16\ On
this date, Federal agencies will be prohibited from accepting a State-
or territory-issued driver's license or identification card for
official purposes unless the card is compliant with the REAL ID Act and
regulations.\17\
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\15\ See 6 CFR 37.5(b). The regulations also include a schedule
for State-based compliance, known as ``State-based enforcement.''
See 6 CFR 37.51(a).
\16\ See 6 CFR 37.5(b).
\17\ See 6 CFR 37.5(b). Additionally, TSA is conducting a
separate rulemaking that would allow Federal agencies to implement
the card-based enforcement provisions of the REAL ID regulations
under a phased approach beginning on the May 7, 2025 enforcement
deadline. See NPRM, Phased Approach for Card-Based Enforcement, 89
FR 74137 (Sept. 12, 2024).
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On December 21, 2020, Congress passed the REAL ID Modernization
Act,\18\ which amended the REAL ID Act to update the definitions of
``driver's license'' and ``identification card'' to specifically
include mDLs that have been issued in accordance with regulations
prescribed by the Secretary, among other updates.\19\ Accordingly, mDLs
must be REAL ID-compliant to be accepted by Federal agencies for
official purposes when card-based enforcement begins on May 7, 2025.
However, States cannot issue REAL ID-compliant mDLs until the
regulations are updated to include requirements to ensure that mDLs
meet equivalent levels of security currently imposed on REAL ID-
compliant physical cards.
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\18\ REAL ID Modernization Act, 134 Stat. 2304.
\19\ Sec. 1001 of the REAL ID Modernization Act, 134 Stat. 2304.
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B. Rulemaking History

In April 2021, DHS issued an RFI announcing DHS's intent to
commence future rulemaking to set the minimum technical requirements
and security standards for mDLs to enable Federal agencies to accept
mDLs for official purposes. The RFI requested comments and information
to inform DHS's rulemaking.\20\ In response, DHS received 63 comments
\21\ through a twice-extended comment period of 180 days, which closed
on October 18, 2021.
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\20\ 86 FR 20320 (Apr. 19, 2021).
\21\ The 63 total comments included three duplicates and one
confidential submission.
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In August 2023, TSA published a Notice of Proposed Rulemaking
(NPRM) \22\ drawing on comments to the RFI, which are summarized at 88
FR 60056, 60071-72. The NPRM comment period closed on October 16, 2023,
and TSA received 31 comments. NPRM comments are discussed in detail in
Part IV, below.
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\22\ 88 FR 60056.
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C. mDL Overview

1. mDLs Generally
An mDL is generally recognized as the digital representation of an
individual's identity information contained on a State-issued physical
driver's license or identification card.\23\ An mDL may be stored on a
diverse range of portable or mobile electronic devices, such as
smartphones, smartwatches, and storage devices containing memory. Like
a physical card, mDL data originates from identity information about an
individual that is maintained in the database of a State driver's
licensing agency. An mDL has potential benefits for all stakeholders.
For Federal agencies, mDLs may provide security and efficiency
enhancements compared to physical cards, because mDLs rely on digital
security features that are immune to many vulnerabilities of physical
security features. For individuals, mDLs may provide a more secure,
convenient, privacy-enhancing, and ``touchless'' method of identity
verification compared to physical IDs.
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\23\ A technical description of mDLs as envisioned by the
American Association of Motor Vehicle Administrators may be found at
<a href="https://www.aamva.org/Mobile-Drivers-License/">https://www.aamva.org/Mobile-Drivers-License/</a> (last visited July 17,
2024).
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Unlike physical cards that employ physical security features to
deter fraud and tampering, mDLs combat fraud through the use of digital
security features that are not recognizable through human inspection,
such as asymmetric cryptography/public key infrastructure (PKI). As
discussed in the NPRM,\24\ asymmetric cryptography generates a pair of
encryption ``keys'' to encrypt and decrypt protected data. One key, a
``public key,'' is distributed publicly, while the other key, a
``private key,'' is held by the State driver's licensing agency (e.g.,
a Department of Motor Vehicles). When the driver's licensing agency
issues an mDL to an individual, the agency uses its private key to
digitally ``sign'' the mDL data. A Federal agency accepting an mDL
validates the integrity of the mDL data by obtaining the State driver's
licensing agency's public key to verify the digital signature. Private
keys and digital signatures are elements of data encryption that
protect against unauthorized access, tampering, and fraud. Generally,
mDL-based identity verification under REAL ID involves a triad of
secure communications between a State driver's licensing agency, an mDL
holder, and a Federal agency. Standardized communication interfaces are
necessary to enable Federal agencies to exchange information with all
U.S. States and territories that issue mDLs. Please see the NPRM for a
more detailed discussion.\25\
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\24\ 88 FR at 60060.
\25\ 88 FR at 60060-61.
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In contrast to physical driver's licenses that are read and
verified visually through human inspection of physical security
features, an mDL is read and verified electronically using a device
known simply as a ``reader. Any Federal agency that accepts mDLs for
official purposes must use readers to validate an mDL holder's identity
data from their mobile device and establish trust that the mDL is
secure by using private-public key data encryption.\26\ An mDL reader
compliant with this requirement can take multiple forms, such as an app
installed on a mobile device, or a dedicated device. Although reader
development is evolving, some companies already offer reader apps for
free, and TSA therefore expects readers will be offered in a wide range
capabilities and associated price points.\27\
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\26\ Non-Federal agencies and other entities who choose to
accept mDLs for uses beyond the scope of REAL ID should also
recognize the need for a reader to ensure the validity of the mDL.
Any verifying entity can validate in the same manner as a Federal
agency if they implement the standardized communication interface
requirements specified in this final rule, which would require
investment to develop the necessary IT infrastructure and related
processes.
\27\ Readers for mDLs have specific requirements and at this
time are not interchangeable with readers for other types of Federal
cards, such as the Transportation Worker Identification Credential
(TWIC). Although TSA is evaluating some mDLs at select airport
security checkpoints, cost estimates for readers used in the
evaluations are not available because those readers are non-
commercially available prototypes designed specifically for
integration into TSA-specific IT infrastructure that few, if any,
other Federal agencies use. In addition, mDL readers are evolving
and entities who accept mDLs would participate voluntarily.
Accordingly, associated reader costs are not quantified at this time
but TSA intends to gain a greater understanding of any costs to
procure reader equipment as the technology continues to evolve.

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[[Page 85344]]

2. State mDL Issuance and TSA Testing
As noted above, mDL issuance is proliferating rapidly among States,
with at least half of all States believed to be preparing for or
issuing mDLs.\28\ Although detailed mDL adoption statistics are
unavailable, anecdotal information and media reports indicates that
mDLs are rapidly gaining public acceptance. For example, Maryland
commented that it has issued more than 200,000 mDLs to residents
following a pilot in 2017 and more recent expansion in 2022 and
2023.\29\ Iowa commented that in the 3 months since it began offering
its mDL app, it has been downloaded by more than 7,000 users.\30\
---------------------------------------------------------------------------

\28\ See, e.g., AAMVA, Driver and Vehicle Services Data Map,
<a href="https://www.aamva.org/jurisdiction-data-maps#anchorformdlmap">https://www.aamva.org/jurisdiction-data-maps#anchorformdlmap</a> (last
visited July 17, 2024); PYMNTS, States Embrace Mobile Driver's
Licenses to Fight Fraud Amid Privacy Scrutiny (Apr. 9, 2024),
<a href="https://www.pymnts.com/identity/2024/states-embrace-mobile-drivers-licenses-to-fight-fraud-amid-privacy-scrutiny/">https://www.pymnts.com/identity/2024/states-embrace-mobile-drivers-licenses-to-fight-fraud-amid-privacy-scrutiny/</a> (last visited July
17, 2024); Government Technology, Digital IDs Are Here, but Where
Are They Used and Accepted? (Mar. 12, 2024), <a href="https://www.govtech.com/biz/data/digital-ids-are-here-but-where-are-they-used-and-accepted">https://www.govtech.com/biz/data/digital-ids-are-here-but-where-are-they-used-and-accepted</a> (last visited July 17, 2024).
\29\ Comment by Maryland MVA, <a href="https://www.regulations.gov/comment/TSA-2023-0002-0032">https://www.regulations.gov/comment/TSA-2023-0002-0032</a> (last visited July 17, 2024).
\30\ Comment by Iowa Department of Transportation, <a href="https://www.regulations.gov/comment/TSA-2023-0002-0023">https://www.regulations.gov/comment/TSA-2023-0002-0023</a> (last visited July
17, 2024).
---------------------------------------------------------------------------

TSA understands that States are issuing mDLs using widely varying
technology solutions, raising concerns whether such technological
diversity provides the safeguards and interoperability necessary for
Federal acceptance. Since 2022, TSA has been collaborating with States
and industry to test the use of mDLs issued by participating States at
select TSA airport security checkpoints.\31\ As of the date of this
final rule, TSA is currently testing mDLs issued by 11 States (Arizona,
California, Colorado, Georgia, Hawaii, Iowa, Louisiana, Maryland, New
York, Ohio, Utah) at 27 airports.\32\
---------------------------------------------------------------------------

\31\ See NPRM, 88 FR at 60066-67.
\32\ See TSA, Facial Recognition and Digital Identity Solutions,
<a href="https://www.tsa.gov/digital-id">https://www.tsa.gov/digital-id</a> (last visited Aug. 9, 2024).
---------------------------------------------------------------------------

D. Industry Standards and Government Guidelines for mDLs

The nascence of mDLs and absence of standardized mDL-specific
requirements provide an opportunity for industry and government to
develop standards and guidelines to close this void. TSA is aware of
multiple such documents, published and under development, from both
Federal and non-government sources. As discussed in Part III.C.8,
below, this final rule amends Sec. 37.4 by IBR'g into part 37 19
standards and guidelines that form the basis of many of the
requirements in this final rule. TSA understands that these standards
and guidelines discussed are the most comprehensive and relevant
references governing mDLs today. TSA also acknowledges that many
additional standards and guidelines are in development and may provide
additional standardized mechanisms for mDLs.\33\
---------------------------------------------------------------------------

\33\ See NPRM, 88 FR at 60063-66, for a discussion of these
standards.
---------------------------------------------------------------------------

III. General Discussion of the Rulemaking

A. Changes Between NPRM and Final Rule

After carefully considering all comments received to the NPRM (see
detailed discussion of comments and TSA's responses in Part IV, below),
TSA finalizes the NPRM with several revisions in response to public
comments. Table 1 summarizes the changes made in the final rule
compared to the NPRM.

Table 1--Summary of Changes Between the NPRM and the Final Rule
------------------------------------------------------------------------
Reason for the
Section Final rule change
------------------------------------------------------------------------
37.3........................ Adds definition for Technical change to
``Provisioning.''. add definition of a
key term to improve
clarity.
37.4........................ Revises points of Technical changes to
contact for the improve access to
public to contact IBR materials.
TSA; provides
additional means to
access certain
standards that are
IBR'd in this rule.
37.4(c)(1).................. Corrects title of Technical
``Cybersecurity correction.
Incident &
Vulnerability
Response
Playbooks'' to
``Federal
Government
Cybersecurity
Incident &
Vulnerability
Response
Playbooks.''.
37.4(g)(4).................. Updates standard Technical change to
NIST FIPS PUB 197 reflect revisions
to NIST FIPS PUB to standard to
197-upd1 to reflect improve public
revised version of access. Revisions
standard. include editorial
improvements, but
no technical
changes to the
algorithm specified
in the earlier
version.
37.4(g)(7).................. Corrects website Technical change to
address to the correct a typo.
cited standard.
37.7(a)..................... Clarifies conditions Clarification
under which TSA regarding impact of
will issue a waiver. the waiver.
37.7(b)(3).................. Deleted............. Deleted proposed
language that would
have made a State
ineligible to apply
for a waiver if the
State issues mDLs
to individuals with
non-REAL ID
compliant physical
cards (in addition
to issuing mDLs to
other individuals
that have compliant
physical cards).
37.8(c)..................... Adds paragraph (c) Clarifies that when
to require Federal REAL ID enforcement
agencies accepting begins, Federal
mDLs to confirm, agencies may accept
consistent with the mDLs from States
deadlines set forth only if the
in Sec. 37.5, underlying physical
that the mDL data card is REAL ID
element compliant.
``DHS_compliance''
is encoded ``F,''
as required by Sec.
Sec.
37.10(a)(4)(ii) &
(a)(1)(vii).
37.8(d)..................... Renumbers Sec. Technical changes
37.8(c), as renumber provision
proposed in the from 37.8(c) to
NPRM, to Sec. 37.8(d), update
37.8(d) in light of agency name and
addition of new website address,
Sec. 37.8(c). and clarify the
Corrects website mechanics of
address from reporting.
<a href="http://dhs.gov">dhs.gov</a> to <a href="http://tsa.gov">tsa.gov</a>. Provides that
Adds requirement reports may contain
regarding sensitive security
protection of SSI. information (SSI)
\34\ and if so,
would be subject to
requirements of 49
CFR part 1520.

[[Page 85345]]

37.9(a)..................... Corrects agency name Technical changes
from DHS to TSA. update agency name
Corrects website and website
address from address.
<a href="http://dhs.gov">dhs.gov</a> to <a href="http://tsa.gov">tsa.gov</a>.
37.9(b)..................... Revises ``days'' to Clarifies that
``calendar days.''. ``days'' means
Corrects website calendar days, not
address from business days.
<a href="http://dhs.gov">dhs.gov</a> to <a href="http://tsa.gov">tsa.gov</a>. Technical change
updates agency
website address.
37.9(c)..................... Revises ``days'' to Clarifies that
``calendar days.''. ``days'' means
Corrects website calendar days, not
address from business days.
<a href="http://dhs.gov">dhs.gov</a> to <a href="http://tsa.gov">tsa.gov</a>. Technical change
updates agency
website address.
37.9(e)(2).................. Revises ``days'' to Clarifies that
``calendar days.''. ``days'' means
Corrects website calendar days, not
address from business days.
<a href="http://dhs.gov">dhs.gov</a> to <a href="http://tsa.gov">tsa.gov</a>. Technical change
Provides a means for updates agency
States to contact website address.
TSA if the State is Provides a means for
unclear whether States to resolve
certain potential questions
modifications to regarding reporting
its mDL issuance requirements.
processes require
reporting.
37.9(e)(4)(ii).............. Revises ``days'' to Clarifies that
``calendar days.''. ``days'' means
calendar days, not
business days.
37.9(e)(5)(i)............... Corrects agency name Technical change
from DHS to TSA. updates agency
name.
37.9(e)(5)(ii).............. Revises ``days'' to Clarifies that
``calendar days.''. ``days'' means
calendar days, not
business days.
37.9(g)..................... Adds new paragraph SSI protection.
(g), which provides
that information
submitted in
response to
requirements to
apply for and
maintain a waiver
may contain SSI,
and if so, would be
subject to
requirements of 49
CFR part 1520.
37.10(a)(1)(vii)............ Replaces NPRM Proposed language
requirement that would have required
States must issue States to issue
mDLs only to mDLs only to
residents who have individuals to whom
been issued that State
physical cards that previously issued a
are valid, physical card that
unexpired, and REAL is valid,
ID-compliant with unexpired, and REAL
requirement that ID-compliant. This
States must would have denied
populate the States the
``DHS_compliance'' discretion to issue
data field to mDLs to holders of
correspond to the non-compliant
REAL ID-compliance physical cards.
status of the Revisions require
underlying physical States to issue
driver's license or mDLs in a manner
identification that reflects the
card, or as REAL ID compliance
required by the status of the
AAMVA Guidelines. underlying physical
card. This is
consistent with the
intent of the NPRM,
which was to enable
Federal agencies to
determine the REAL
ID-compliance
status of the
underlying physical
card, and accept
only compliant
cards when
enforcement begins.
37.10(a)(4)................. Corrects version Technical change
number of AAMVA corrects version
Mobile Driver's number of AAMVA
License (mDL) Guidelines.
Implementation Changes reflect
Guidelines (Jan. current version of
2023). NIST FIPS PUB 197
Updates NIST FIPS to ensure
PUB 197 to NIST continuing public
FIPS PUB 197-upd1 access. Revisions
to reflect revised to the standard
version of standard. include editorial
improvements, but
no technical
changes to the
algorithm specified
in the earlier
version.
37.10(b)(1)................. Clarifies that Provides States
``independent additional options
entity'' includes to select auditors.
State employees or Reduces burdens
contractors that without impact on
are independent of security or
the State's privacy.
driver's licensing
agency.
37.10(c).................... Corrects website Technical changes
address from update agency
<a href="http://dhs.gov">dhs.gov</a> to <a href="http://tsa.gov">tsa.gov</a>. website address,
Clarifies that TSA and clarify means
will publish in the of notifying and
Federal Register a publishing updates
notice advising of to TSA mDL Waiver
the availability of Application
updated TSA mDL Guidance.
Waiver Application
Guidance, which
itself will be
published at
<a href="http://www.tsa.gov/mDL/">www.tsa.gov/mDL/</a>.
Appendix A, Throughout...... Corrections to Technical
titles of: corrections.
CISA Federal
Government
Cybersecurity
Incident &
Vulnerability
Response Playbooks.
DHS National Cyber
Incident Response
Plan.
NIST FIPS PUB 140-3.
NIST Framework for
Improving Critical
Infrastructure
Cybersecurity.
Appendix A, paragraph 1.1... Adds section numbers Technical changes
to certain clarify which parts
references. of cited reference
Deletes requirement require compliance,
to comply with NIST and remove an
SP 800-53B. unnecessary
requirement.
Appendix A, paragraph 2.2... Revises ``privileged Technical change
account or corrects
service'' in NPRM terminology.
to ``trusted
role.''.
Appendix A, paragraph 2.13.. Adds section numbers Technical change
to a certain clarifies which
reference. parts of cited
reference require
compliance.
Appendix A, paragraph 5.13.. Reduces requirements Provides States
for minimum number greater freedom to
of personnel to select products.
generate issuing Does not impact
authority security, privacy,
certificate or
authority (IACA) interoperability.
root certificate
keys from a minimum
of three to two
persons, consisting
of at least one
ceremony
administrator and
one qualified
witness.

[[Page 85346]]

Appendix A, paragraph 5.14.. Modifies Provides States
requirements for greater freedom to
minimum number of select products.
personnel to Does not impact
generate document security, privacy,
signer keys. Final or
rule requires interoperability.
either at least one
administrator and
one qualified
witness (other than
a person involved
in key generation),
or at least 2
administrators
using split
knowledge processes.
Appendix A, paragraph 6.3... Revises ``days'' to Clarifies that
``calendar days. ``days'' means
calendar days, not
business days.
Appendix A, paragraph 8.6... Modifies cyber Clarifies types of
incident reporting incidents that must
requirements to be reported,
incidents as updates agency
defined in the TSA website address,
Cybersecurity and adds SSI
Lexicon available protection.
at <a href="http://www.tsa.gov">www.tsa.gov</a> that
may harm state
certificate systems.
Corrects website
address from
<a href="http://dhs.gov">dhs.gov</a> to <a href="http://tsa.gov">tsa.gov</a>.
Adds SSI protection
requirements.
------------------------------------------------------------------------

B. Summary of Regulatory Provisions
---------------------------------------------------------------------------

\34\ SSI is information obtained or developed in the conduct of
security activities, the disclosure of which would constitute an
unwarranted invasion of privacy, reveal trade secrets or privileged
or confidential information, or be detrimental to the security of
transportation. The protection of SSI is governed by 49 CFR part
1520.
---------------------------------------------------------------------------

In addition to revising definitions applicable to the REAL ID Act
to incorporate mDLs, this rule amends 6 CFR part 37 to enable TSA to
grant a temporary waiver to States that TSA determines issue mDLs
consistent with specified requirements concerning security, privacy,
and interoperability. This rule enables Federal agencies, at their
discretion, to accept for REAL ID official purposes, mDLs issued by a
State that has been granted a waiver, provided that the underlying
physical card upon which the mDL was based is REAL ID-compliant. The
rule applies only to Federal agency acceptance of State-issued mDLs as
defined in this final rule for REAL ID official purposes, but not other
forms of digital identification, physical driver's licenses or physical
identification cards, or non-REAL ID purposes. Any temporary waiver
issued by TSA would be valid for a period of 3 years from the date of
issuance.
To obtain a waiver, Sec. 37.9(a) requires a State to submit an
application, supporting data, and other documentation to establish that
their mDLs meet the criteria specified in Sec. Sec. 37.10(a) and (b)
(discussed in Part III.C.4., below) concerning security, privacy, and
interoperability. If TSA determines, upon evaluation of a State's
application and supporting documents, that a State's mDL could be
securely accepted under the terms of a waiver, TSA may issue such State
a certificate of waiver. TSA intends to work with each State applying
for a waiver on a case-by-case basis to ensure that its mDLs meet the
minimum requirements necessary to obtain a waiver. This rulemaking
establishes the full process for a State to apply for and maintain a
waiver, including: instructions for submitting the application and
responding to subsequent communications from TSA as necessary; specific
information and documents that a State must provide with its
application; requirements concerning timing, issuance of decisions,
requests for reconsideration; and post-issuance reporting requirements
and other terms, conditions, and limitations. To assist States that are
considering applying for a waiver, TSA has developed guidelines,
entitled, ``Mobile Driver's License Waiver Application Guidance''
(hereinafter ``TSA Waiver Guidance'' or ``the Guidance''), which
provides non-binding recommendations of some ways that States can meet
the application requirements set forth in this rulemaking.\35\ This
final rule makes several technical and administrative changes to the
NPRM, as set forth in Table 1, above. These changes are as follows:
---------------------------------------------------------------------------

\35\ The specific measures and practices discussed in the TSA
Waiver Application Guidance are neither mandatory nor necessarily
the ``preferred solution'' for complying with the requirements in
this final rule. Rather, they are examples of measures and practices
that a State issuer of mDLs may choose to consider as part of its
overall strategy to issue mDLs. States have the ability to choose
and implement other measures to meet these requirements based on
factors appropriate to that State, so long as DHS determines that
the measures implemented provide the levels of security and data
integrity necessary for Federal acceptance of mDLs for official
purposes as defined in the REAL ID Act and 6 CFR part 37. As
provided in Sec. 37.10(c), TSA may periodically update the Guidance
as necessary to recommend mitigations of evolving threats to
security, privacy, or data integrity.
---------------------------------------------------------------------------

<bullet> Corrections to agency name, website address, points of
contact for access and compliance with reporting requirements: See
Sec. Sec. 37.4, 37.8(d), 37.9(a)-(c), (e)(2) & (e)(5)(i), 37.10(c),
and Appendix A, paragraph 8.6.
<bullet> Corrections to inadvertent omissions, typographical
errors, paragraph numbering, title/version number of publications: See
Sec. Sec. 37.3, 37.4, 37.4(c)(1), 37.8(d), 37.4(g)(4) & (7),
37.10(a)(4), Appendix A, paragraphs 1.1, 2.13, 2.2, 8.4, 8.5, 8.8.
<bullet> Clarifying that ``days'' means ``calendar days'': See
Sec. Sec. 37.9(b), 37.9(c), 37.9(e)(2), (4)(i) & (5)(ii), and Appendix
A, paragraph 6.3.

C. Specific Provisions

This section describes the final regulatory provisions in this
rule, including the changes discussed above. Unless otherwise noted,
these provisions were described in the NPRM.
1. Definitions
The final rule adds new definitions to subpart A, Sec. 37.3,
consistent with those proposed in the NPRM. In particular, new
definitions for ``mobile driver's license'' and ``mobile identification
card'' are necessary because the current regulations predated the
emergence of mDL technology and, therefore, do not define these terms.
Additionally, the definitions reflect changes made by the REAL ID
Modernization Act, which amended the definitions of ``driver's
license'' and ``identification card'' to specifically include ``mobile
or digital driver's licenses'' and ``mobile or digital identification
cards.'' The definitions in this rule provide a more precise definition
of ``mobile driver's license'' and ``mobile identification card'' by
clarifying that those forms of identification require a mobile
electronic device to store the identification information, as well as
an electronic device to read that information. The rule also adds a new
definition of ``mDL'' that collectively refers to mobile versions of
both State-issued driver's licenses and State-issued identification
cards as defined in the REAL ID Act.

[[Page 85347]]

The final rule includes additional definitions to explain terms
used in the waiver application criteria set forth in Sec. Sec.
37.10(a)-(b) and Appendix A to subpart A of this part (Appendix A).
Generally, this rule defines terms that lack a common understanding or
that are common terms of art for information systems, and that require
an explanation to enable stakeholders to comply with the rule. The
definitions were informed by TSA's knowledge and experience, as well as
a publication by the National Institute of Standards and Technology
(NIST).\36\ For example, the rule adds definitions for ``digital
certificates'' and ``certificate systems,'' which are necessary
elements of risk controls for the IT systems that States use to issue
mDLs. In addition, this final rule adds a definition for ``certificate
policy,'' which forms the governance framework for States' certificate
systems. A State must develop, maintain, and execute a certificate
policy to comply with the requirements set forth in Appendix A. In
addition, ``Digital Signatures'' are mathematical algorithms that
States use to validate the authenticity and integrity of a message.
Each of these terms is fundamental to understanding the requirements
set forth in this rule.
---------------------------------------------------------------------------

\36\ See NIST, Computer Security Resource Center, <a href="https://csrc.nist.gov/glossary">https://csrc.nist.gov/glossary</a> (last visited July 17, 2024).
---------------------------------------------------------------------------

The final rule adds a definition for ``provisioning'' which was not
proposed in the NPRM. See Sec. 37.3. As defined by this final rule,
``provisioning'' means the process by which a State transmits and
installs an mDL on an individual's mobile device. Although TSA did not
receive any comments seeking clarity or requesting the addition of this
or other definitions, TSA believes provisioning is a critical concept
that requires a definition in order to facilitate stakeholder
compliance.
2. TSA Issuance of Temporary Waiver and State Eligibility Criteria
The final rule adds to subpart A new Sec. 37.7, entitled
``Temporary waiver for mDLs; State eligibility.'' This waiver framework
temporarily allows Federal agencies to accept for official purposes
mDLs (which today are all non-compliant) issued by States with a
waiver, if the mDL is based on a REAL ID-compliant physical card, when
REAL ID enforcement begins on May 7, 2025 (see Sec. 37.8, discussed in
Part III.C.3., below). However, the waiver framework does not apply to
any other requirements in 6 CFR part 37 or physical cards. Section
37.7(a) authorizes TSA to issue a temporary certificate of waiver to
States that meet the waiver application criteria set forth in
Sec. Sec. 37.10(a) and (b). TSA's determination of whether a State
satisfies these requirements will be based on TSA's evaluation of the
information provided by the State in its application (see Part
III.C.4., below), as well as other information available to TSA.
Federal agencies are not required to accept mDLs, and retain discretion
to determine their own policies regarding identity verification.
Although NPRM Sec. 37.7(a) stated that a waiver would exempt a
State's mDLs from meeting the card-based compliance requirement of
Sec. 37.5(b), the final rule deletes this clause because a waiver
impacts Federal agency acceptance, not State issuance, of non-compliant
mDLs. Stated differently, a waiver allows Federal agencies to accept
non-compliant mDLs issued by States to whom TSA has granted a waiver.
As discussed above in this preamble, the waiver application criteria
set forth temporary security requirements commensurate with REAL ID
standards for physical cards, ensuring that mDLs meeting the criteria
are suitable for Federal acceptance. However, States cannot issue REAL
ID-compliant mDLs until TSA sets forth such requirements in the
subsequent Phase 2 rulemaking.
Section 37.7(b) sets forth criteria that a State must meet to be
eligible for consideration of a waiver. These criteria require that the
issuing State: (1) is in full compliance with all applicable REAL ID
requirements as defined in subpart E of this part, and (2) has
submitted an application, under Sec. Sec. 37.10(a) and (b)
demonstrating that the State issues mDLs that provide security,
privacy, and interoperability necessary for Federal acceptance.\37\ The
NPRM proposed paragraph (b)(3) of this section, which provided an
additional waiver eligibility criterion that a State must issue mDLs
only to individuals who have been issued REAL ID-compliant physical
cards. However, the final rule does not adopt this proposal given TSA's
evaluation of public comments (see Part IV.A.) that this provision
would have made a State ineligible for a waiver if the State issued
mDLs to both individuals with REAL ID-compliant physical cards and
individuals with non-compliant physical cards. The final rule similarly
amends Sec. 37.10(a)(1)(vii), as proposed by the NPRM, to remove a
provision that would have required States to issue an mDL only to a
resident who has been issued a valid, unexpired, and REAL ID-compliant
physical card that underlies the mDL. See Part III.C.4, below.
---------------------------------------------------------------------------

\37\ Sections 37.7(b)(1) & (2).
---------------------------------------------------------------------------

3. Requirements for Federal Agencies that Accept mDLs
The final rule adds to subpart A new Sec. 37.8, entitled
``Requirements for Federal agencies accepting mDLs issued by States
with temporary waiver.'' This section requires that any Federal agency
that elects to accept mDLs for REAL ID official purposes must meet four
requirements in new Sec. 37.8. First, under Sec. 37.8(a), a Federal
agency must confirm that the State holds a valid certificate of waiver.
Agencies would make this confirmation by verifying that the State's
name appears in a list of States to whom TSA has granted a waiver. TSA
will publish this list on the REAL ID website at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a> (as provided in Sec. 37.9(b)(1)).
Second, Sec. 37.8(b) requires Federal agencies to use an mDL
reader to retrieve mDL data from an individual's mobile device and
validate that the data is authentic and unchanged following the
processes required by industry standard ISO/IEC 18013-5:2021(E).\38\
---------------------------------------------------------------------------

\38\ See NPRM, 88 FR at 60063-64, for a discussion of this
standard.
---------------------------------------------------------------------------

Third, under Sec. 37.8(c), Federal agencies may accept, consistent
with the deadlines set forth in Sec. 37.5, only those mDLs that are
issued based on an underlying physical card that is REAL ID compliant.
Agencies would make this determination by confirming that mDL data
element ``DHS_compliance'' has a value of ``F''. As discussed in Part
III.C.8.a., below, the data field ``DHS_compliance'' (defined in the
American Association of Motor Vehicle Administrators Mobile Driver's
License (mDL) Implementation Guidelines Version 1.2 (Jan. 2023) (AAMVA
Guidelines)) enables an mDL to convey the REAL ID compliance status of
the underlying physical card. TSA notes that Sec. 37.8(c) is a new
provision that was not included in the NPRM. TSA intended, in proposed
Sec. Sec. 37.7(b)(3) and 37.10(a)(1)(vii) of the NPRM, that Federal
agencies would accept only mDLs issued by States to whom TSA has issued
a waiver, and that are based on an underlying physical card that is
REAL ID-compliant. Final rule Sec. 37.8(c), together with revisions to
Sec. 37.10(a)(1)(vii) (see discussion in Part III.C.4., below),
achieves that intent.
Finally, under Sec. 37.8(d), if a Federal agency discovers that
acceptance of a State's mDL is likely to cause imminent or serious
threats to security, privacy, or data integrity, the agency must report
the threats to TSA at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a> within 72 hours of such

[[Page 85348]]

discovery. Examples of reportable threats include cyber incidents and
other events that cause serious harm to a State's mDL issuance system.
Reports may contain SSI, and if so, would be subject to requirements of
49 CFR part 1520. Although the NPRM did not propose the SSI protection
provision, TSA evaluated comments to the NPRM (see Part IV.W., below)
seeking clarification on SSI protection for other information (State
waiver applications) and determined that SSI protection is warranted
for Federal agency reports under this Sec. 37.8(d), which has been
added in this final rule. TSA will consider whether such information
warrants suspension of that State's waiver under Sec. 37.9(e)(4)(i)(B)
(see discussion in Part III.C.6., below). If TSA elects not to issue a
suspension, Federal agencies would continue to exercise their own
discretion regarding continuing acceptance of mDLs.
4. Requirements for States Seeking To Apply for a Waiver
The final rule adds to subpart A new Sec. 37.9, which sets forth a
process for a State to request a temporary certificate of waiver
established in new Sec. 37.7. As provided in Sec. 37.9(a), a State
seeking a waiver must file a complete application as set forth in
Sec. Sec. 37.10(a) and (b), following instructions available at
<a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a>. Sections 37.10(a) and (b) set forth all
information, documents, and data that a State must include in its
application for a waiver. If TSA determines that the means that a State
implements to comply with the requirements in Sec. Sec. 37.10(a) and
(b) provide the requisite levels of security, privacy, and data
integrity for Federal acceptance of mDLs for official purposes, TSA
would grant such State a waiver. This rule does not, however, prescribe
specific means (other than the requirements specified in Appendix A,
which is discussed further in Part III.C.4.iv, below) that a State must
implement. Instead, States would retain broad discretion to choose and
implement measures to meet these requirements based on factors
appropriate to that State.
(i) Application Requirements
As set forth in Sec. Sec. 37.10(a)(1) through (4), a State is
required to establish in its application how it issues mDLs under the
specified criteria for security, privacy, and interoperability suitable
for acceptance by Federal agencies, as follows:
<bullet> Paragraph (a)(1) sets forth requirements for mDL
provisioning. Specific requirements include:
[cir] Encryption of mDL data and an mDL holder's Personally
Identifiable Information,
[cir] Escalated review of repeated failed provisioning attempts,
[cir] Authentication of the mDL applicant's mobile device,
[cir] Mobile device identification keys,
[cir] User identity verification controls,
[cir] Applicant presentation controls,
[cir] Encoding of the ``DHS_compliance'' data field. States must
populate this data field to correspond to the REAL ID compliance status
of the underlying physical driver's license or identification card that
a State has issued to an mDL holder. Specifically, ``DHS_compliance''
should be populated with ``F'' if the underlying card is REAL ID
compliant, or as required by American Association of Motor Vehicle
Administrator (AAMVA) Mobile Driver's License (mDL) Implementation
Guidelines v. 1.2, Section 3.2 (IBR'd; see Sec. 37.4), or ``N'' if the
underlying card is not REAL ID-compliant. Although Sec.
37.10(a)(1)(vii) of the NPRM proposed requiring that States issue an
mDL only to a resident who has been issued a valid, unexpired, and REAL
ID-compliant physical card that underlies the mDL, the final rule does
not adopt this provision, based on TSA's evaluation of public comments
(see Part IV.A.), that this provision would have made a State
ineligible to apply for a waiver if the State issued mDLs to both
individuals with REAL ID-compliant physical cards and individuals with
non-compliant physical cards,
[cir] Data record requirements, and
[cir] Records retention specifications.
<bullet> Paragraph (a)(2) specifies requirements for managing state
certificate systems, which are set forth in Appendix A.
<bullet> Paragraph (a)(3) requires a State to demonstrate how it
protects personally identifiable information of individuals during the
mDL provisioning process.
<bullet> Paragraph (a)(4) requires a State to explain the means it
uses to:
[cir] Issue mDLs that are interoperable with requirements set forth
in standard ISO/IEC 18013-5:2021(E),
[cir] Comply with the ``AAMVA mDL data element set'' as defined in
the AAMVA Guidelines v. 1.2, Section 3.2,\39\ and
---------------------------------------------------------------------------

\39\ See NPRM, 88 FR at 60062-65, for a discussion of these
standards.
---------------------------------------------------------------------------

[cir] Use only those algorithms for encryption,\40\ secure hash
function,\41\ and digital signatures that are specified in ISO/IEC
18013-5:2021(E), and in NIST FIPS PUB 180-4, 186-5, 197-upd1, 198-1,
and 202.
---------------------------------------------------------------------------

\40\ Encryption refers to the process of cryptographically
transforming data into a form in a manner that conceals the data's
original meaning to prevent it from being read. Decryption is the
process of restoring encrypted data to its original state. IETF RFC
4949, internet Security Glossary, Version 2, Aug. 2007, <a href="https://datatracker.ietf.org/doc/html/rfc4949">https://datatracker.ietf.org/doc/html/rfc4949</a> (last visited July 17, 2024).
\41\ A function that processes an input value creating a fixed-
length output value using a method that is not reversible (i.e.,
given the output value of a function it is computationally
impractical to find the function's corresponding input value).
---------------------------------------------------------------------------

(ii) Audit Requirements
Section 37.10(b) requires a State to submit an audit report
prepared by an independent auditor verifying the accuracy of the
information provided by the State in response to Sec. 37.10(a), as
follows:
<bullet> Paragraph (1) sets forth specific experience,
qualifications, and accreditations that an auditor must meet.
<bullet> Paragraph (2) requires a State to provide information
demonstrating the absence of a potential conflict of interest of the
auditing entity.
The term ``independent'' does not exclude an entity that is
employed or contracted by a State, so long as that entity is
independent of (i.e., not an employee or contractor) the State's
driver's licensing agency. TSA provides this clarification at the
request of commenters (see Part IV.U., below).
(iii) Waiver Application Guidance
As set forth in Sec. 37.10(c), TSA has published Mobile Driver's
License Waiver Application Guidance on the REAL ID website at
<a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a> to assist States in completing their
applications. The Guidance provides TSA's recommendations for some ways
that States can meet the requirements in Sec. 37.10(a)(1). The
Guidance does not establish legally enforceable requirements for States
applying for a waiver. Instead, the Guidance provides non-binding
examples of measures and practices that States may choose to consider
as part of their overall strategy to issue mDLs. States continue to
exercise discretion to select processes not included in the Guidance.
Given the rapidly-evolving cyber threat landscape, however, TSA may
periodically update the Guidance to provide additional information
regarding newly published standards or other sources, or recommend
mitigations of newly discovered risks to

[[Page 85349]]

the mDL ecosystem. TSA will publish a notice in the Federal Register
advising that updated Guidance is available, and TSA will publish the
updated Guidance on the REAL ID website at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a> and
provide a copy to all States that have applied for or been issued a
certificate of waiver. Updates to the Guidance will not impact issued
waivers or pending applications. Although the NPRM proposed that TSA
would publish updated Guidance in the Federal Register, in addition to
TSA's website, the final rule modifies this requirement to provide that
the agency will publish in the Federal Register only a notice of
availability of updated guidance, but the Guidance itself will be
published on TSA's website. This change will enable TSA to more
expediently provide updated guidance to the public.
(iv) Appendix A: Requirements for State mDL Issuance Systems
Appendix A sets forth fundamental requirements to ensure the
security and integrity of State mDL issuance processes. More
specifically, these requirements concern the creation, issuance, use,
revocation, and destruction of the State's certificate systems and
cryptographic keys. Appendix A consists of requirements in eight
categories: (1) Certificate Authority Certificate Life Cycle Policy,
(2) Certificate Authority Access Management, (3) Facility, Management,
and Operational Controls, (4) Personnel Security Controls, (5)
Technical Security Controls, (6) Threat Detection, (7) Logging, and (8)
Incident Response and Recovery Plan. Adherence to these requirements,
described below, ensures that States issue mDLs in a standardized
manner with security and integrity to establish the trust necessary for
Federal acceptance for official purposes.
<bullet> Certificate Authority Certificate Life Cycle Policy
requirements (Appendix A, paragraph 1) ensure that a State issuing an
mDL creates and manages a formal process which follows standardized
management and protections of digital certificates. These requirements
must be implemented in full compliance with the references cited in
Appendix A: CA/Browser Forum Baseline Requirements for the Issuance and
Management of Publicly-Trusted Certificates; CA/Browser Forum Network
and Certificate System Security Requirements; ISO/IEC 18013-5:2021(E),
Annex B; NIST Framework for Improving Critical Infrastructure
Cybersecurity; NIST SP 800-53 Rev. 5; and NIST SP 800-57.\42\
---------------------------------------------------------------------------

\42\ See NPRM, 88 FR at 60062-65, for a discussion of these
standards.
---------------------------------------------------------------------------

<bullet> Certificate Authority Access Management requirements
(Appendix A, paragraph 2) set forth policies and processes for States
concerning, for example, restricting access to mDL issuance systems,
policies for multi-factor authentication, defining the scope and role
of personnel, and certificate system architecture which separates and
isolates certificate system functions to defined security zones. These
requirements must be implemented in full compliance with the references
cited in Appendix A: CA/Browser Forum Network and Certificate System
Security Requirements; NIST Framework for Improving Critical
Infrastructure Cybersecurity; NIST 800-53 Rev. 5; NIST SP 800-63-3; and
NIST SP 800-63B.\43\
---------------------------------------------------------------------------

\43\ See NPRM, 88 FR at 60062-65, for a discussion of these
standards.
---------------------------------------------------------------------------

Although NPRM Appendix A, paragraph 1.1, proposed requiring States
to comply with NIST SP 800-53B (among other references) as part of
States' development of a policy to govern their certificate systems,
the final rule does not adopt the proposal requiring compliance with
NIST SP 800-53B. Document NIST SP 800-53B, ``Control Baselines for
Information Systems and Organizations,'' defines minimum security and
privacy risk controls for Federal Government agencies to protect
information security systems. In addition, the publication provides
guidance, but not requirements, for other entities that implement NIST
SP 800-53 Rev. 5 in their own organizations. Although TSA did not
receive any public comments on NIST SP 800-53B, after re-evaluating the
usefulness of this document, TSA concludes that other provisions in the
final rule prescribe the necessary security and privacy requirements
for States issuing mDLs, and NIST SP 800-53B only serves as guidance
without providing security or privacy enhancements. Accordingly, the
inclusion of NIST SP 800-53B is unnecessary, and the final rule
therefore declines to adopt the NPRM's proposal.
<bullet> Under the requirements concerning Facility, Management,
and Operational Controls (Appendix A, paragraph 3), States must provide
specified controls protecting facilities where certificate systems
reside from unauthorized access, environmental damage, physical
breaches, and risks from foreign ownership, control, or influence.
These requirements must be implemented in full compliance with the
references cited in Appendix A: NIST SP 800-53 Rev. 5.\44\
---------------------------------------------------------------------------

\44\ See NPRM, 88 FR at 60065, for a discussion of this
standard.
---------------------------------------------------------------------------

<bullet> Personnel security controls (Appendix A, paragraph 4)
require States to establish policies to control insider threat risks to
certificate systems and facilities. Such policies must establish
screening criteria for personnel who access certificate systems, post-
employment access termination, updates to personnel security policy,
training, records retention schedules, among other policies. These
requirements must be implemented in full compliance with the references
cited in Appendix A: NIST SP 800-53 Rev. 5 and CA/Browser Forum
Baseline Requirements for the Issuance and Management of
Publicly[hyphen]Trusted Certificates.\45\
---------------------------------------------------------------------------

\45\ See NPRM, 88 FR at 60062-63 & 60065, for a discussion of
these standards.
---------------------------------------------------------------------------

<bullet> Technical security controls (Appendix A, paragraph 5)
specify requirements to protect certificate system networks. In
addition, States are required to protect private cryptographic keys of
issuing authority root certificates using dedicated hardware security
modules (HSMs) of Level 3 or higher and document signer private
cryptographic keys in hardware security modules of Level 2 and higher.
Dedicated HSMs are used (1) solely for IACA root private key functions
and no other functions within the State's certificate system, including
document signer private key functions, and (2) exclusively to support a
single State. States are not permitted to share with any other State an
HSM that physically supports multiple States. Other controls are
specified regarding certificate system architecture and cryptographic
key generation processes. These requirements must be implemented in
full compliance with the references cited in Appendix A: CA/Browser
Forum Network and certificate system Security Requirements; CA/Browser
Forum Baseline Requirements for the Issuance and Management of
Publicly-Trusted Certificates; NIST Framework for Improving Critical
Infrastructure Cybersecurity; NIST SP 800-53 Rev. 5; NIST SP 800-57;
and NIST FIPS PUB 140-3.\46\
---------------------------------------------------------------------------

\46\ See NPRM, 88 FR at 60062-63 & 60065, for a discussion of
these standards.
---------------------------------------------------------------------------

<bullet> Under requirements for threat detection (Appendix A,
paragraph 6), States must implement controls to monitor and log
evolving threats to various mDL issuance infrastructure, including
digital certificate, issuance, and support systems. These requirements
must be implemented in

[[Page 85350]]

full compliance with the references cited in Appendix A: CA/Browser
Forum Network and certificate system Security Requirements; NIST
Framework for Improving Critical Infrastructure Cybersecurity; and NIST
SP 800-53 Rev. 5.\47\
---------------------------------------------------------------------------

\47\ See NPRM, 88 FR at 60062-63 & 60065, for a discussion of
these standards.
---------------------------------------------------------------------------

<bullet> Logging controls (Appendix A, paragraph 7) require States
to record various events concerning certificate systems, including the
management of cryptographic keys, and digital certificate lifecycle
events. The controls set forth detailed requirements concerning
specific types of events that must be logged, as well as timeframes for
maintaining such logs. These requirements must be implemented in full
compliance with the references cited in Appendix A: CA/Browser Forum
Baseline Requirements for the Issuance and Management of
Publicly[hyphen]Trusted Certificates; NIST Framework for Improving
Critical Infrastructure Cybersecurity; and NIST SP 800-53 Rev. 5.\48\
---------------------------------------------------------------------------

\48\ See NPRM, 88 FR at 60062-63 & 60065, for a discussion of
these standards.
---------------------------------------------------------------------------

<bullet> Incident Response and Recovery Plan (Appendix A, paragraph
8) requires States to implement policies to respond to and recover from
security incidents. States must act on logged events, issue alerts to
relevant personnel, respond to alerts within a specified time period,
perform vulnerability scans, among other things. In particular, States
must report to TSA at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a> within 72 hours of
discovering a reportable cybersecurity incident. In response to
comments to the NPRM seeking clarity on the reporting requirements (see
Part IV.V.5.c., below), the final rule adds a provision that reportable
incidents are those defined in the TSA Cybersecurity Lexicon at
<a href="http://www.tsa.gov">www.tsa.gov</a> that could compromise the integrity of a certificate
system. These requirements must be implemented in full compliance with
the references cited in Appendix A: CA/Browser Forum Network and
Certificate System Security Requirements; CISA Federal Government
Cybersecurity Incident & Vulnerability Response Playbooks; \49\ DHS
National Cyber Incident Response Plan; NIST SP 800-53 Rev. 5; and NIST
Framework for Improving Critical Infrastructure Cybersecurity.\50\
Information submitted in response to this section may contain SSI, and
if so, would be subject to requirements of 49 CFR part 1520. Although
the NPRM did not propose the SSI protection provision, TSA evaluated
comments to the NPRM (see Part IV.W., below) seeking clarification on
SSI protection for other information (State waiver applications) and
determined that SSI protection is warranted for State reports under
this Appendix paragraph 8, which has been added in this final rule.
---------------------------------------------------------------------------

\49\ The NPRM inadvertently omitted ``Federal Government'' from
the title of this publication.
\50\ See NPRM, 88 FR at 60062-63 & 60065, for a discussion of
these standards.
---------------------------------------------------------------------------

5. Decisions on Applications for Waiver
Section 37.9(b) establishes a timeline and process for TSA to issue
decisions on a waiver application. Under this paragraph, TSA endeavors
to provide States a decision on initial applications within 60 calendar
days, but not longer than 90 calendar days. TSA will provide three
types of written notice via email: approved, insufficient, or denied.
If TSA approves a State's application for a waiver, TSA will issue
a certificate of waiver to that State, and include the State in a list
of mDLs approved for Federal use, published by TSA on the REAL ID
website at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a>.\51\ A certificate of waiver will
specify the date that the waiver becomes effective, the expiration
date, and any other terms and conditions with which a State must
comply, as provided under Sec. 37.9(d). A State seeking to renew its
certificate beyond the expiration date must reapply for a waiver, as
provided in Sec. 37.9(e)(6).
---------------------------------------------------------------------------

\51\ Section 37.9(b)(1).
---------------------------------------------------------------------------

If TSA determines that an application is insufficient, did not
respond to certain information required in Sec. Sec. 37.10(a) or (b),
or contains other deficiencies, TSA will provide an explanation of such
deficiencies and allow the State an opportunity address the
deficiencies within the timeframe specified in Sec. 37.9(b)(2). TSA
will permit States to submit multiple amended applications if
necessary, with the intent of working with States individually to
enable their mDLs to comply with the requirements of Sec. Sec.
37.10(a) and (b).
As provided in Sec. 37.9(b)(3), if TSA denies an application, TSA
will provide the specific grounds for the basis of the denial and
afford the State an opportunity to submit a new application or to seek
reconsideration of a denied application. Under Sec. 37.9(c)(1), States
will have 90 calendar days to file a request for reconsideration, and
TSA will provide its final determination within 60 calendar days.
Instructions for seeking reconsideration are provided by TSA on the
REAL ID website at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a>. As provided in Sec.
37.9(c)(2), an adverse decision upon reconsideration would be
considered a final agency action. However, a State whose request for
reconsideration has been denied may submit a new application for a
waiver.
6. Limitations, Suspension, and Termination of Certificate of Waiver
Section 37.9(e) sets forth various terms regarding a certificate of
waiver. Specifically, under paragraph (e)(1) of this section, a
certificate of waiver is valid for a period of three years from the
date of issuance. This period was selected to align with the frequency
of States' recertification under Sec. 37.55(b).
Paragraph (e)(2) requires that a State must report to TSA if, after
it receives a waiver, it makes significant modifications to its mDL
issuance processes that differ in a material way from information that
the State provided in its application. If the State makes such
modifications, it is required to report such changes, at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a>, 60 calendar days before implementing the changes. This
requirement is intended to apply to changes that may undermine the
bases on which TSA granted a waiver. The reporting requirement is not
intended to apply to routine, low-level changes, such as systems
maintenance and software updates and patches. States that are uncertain
about whether a change would trigger the reporting requirements should
contact TSA as directed at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a>. The final rule
added this provision to contact TSA to provide greater certainty to
States, following TSA's evaluation of public comments seeking
clarification about the reporting requirements specified in the NPRM
(see Part IV.S., below).
Paragraph (e)(3) requires a State that is issued a waiver to comply
with all requirements specified in Sec. Sec. 37.51(a) and 37.9(d)(3).
Paragraph (e)(4) sets forth processes for suspension of
certificates of waiver. As provided in Sec. 37.9(e)(4)(i)(A), TSA may
suspend the validity of a certificate of waiver if TSA determines that
a State:
<bullet> fails to comply with any terms and conditions (see Sec.
37.9(d)(3)) specified in the certificate of waiver;
<bullet> fails to comply with reporting requirements (see Sec.
37.9(e)(2)); or
<bullet> issues mDLs in a manner that is not consistent with the
information the State provided in its application for a waiver under
Sec. Sec. 37.10(a) and (b).
Before suspending a waiver for these reasons, TSA will provide such
State written notice via email that it intends to suspend its waiver,
along with an explanation of the reasons, information on how the State
may address the deficiencies, and a timeline for the State to respond
and for TSA to reply to the

[[Page 85351]]

State, as set forth in Sec. 37.9(e)(4)(ii). TSA may withdraw the
notice of suspension, request additional information, or issue a final
suspension. If TSA issues a final suspension of a State's certificate
of waiver, TSA will temporarily remove the name of that State from the
list, published at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a>, of mDLs approved for
Federal acceptance for official purposes.\52\ TSA intends to work with
States to resolve the conditions that result in a final suspension, and
resume validity of that State's waiver. A State receiving a final
suspension may apply for a new certificate of waiver by submitting a
new application following the procedures in Sec. 37.9(a).
---------------------------------------------------------------------------

\52\ Section 37.9(e)(4)(iii).
---------------------------------------------------------------------------

TSA additionally may suspend a State's waiver at any time upon
discovery that Federal acceptance of a State's mDL is likely to cause
imminent or serious threats to the security, privacy, or data integrity
of any Federal agency, as set forth in Sec. 37.9(e)(4)(i)(B). These
are more exigent circumstances than those set forth in Sec.
37.9(e)(4)(i)(A). Examples of such triggering events include cyber-
attacks and other events that cause serious harm to a State's mDL
issuance systems. If a State discovers a reportable cybersecurity
incident, as defined in the TSA Cybersecurity Lexicon available at
<a href="http://www.tsa.gov">www.tsa.gov</a>, that it believes could compromise the integrity of its mDL
issuance systems, paragraph 8.6 of Appendix A requires States to
provide written notice to TSA as directed at <a href="http://www.tsa.gov/real-id/mDL">www.tsa.gov/real-id/mDL</a>,
of such incident within no more than 72 hours of discovery. If TSA
determines such suspension is necessary, TSA will provide written
notice via email to each State whose certificate of waiver is affected,
as soon as practicable after discovery of the triggering event,
providing an explanation for the suspension, as well as an estimated
timeframe for resumption of the validity of the certificate of waiver.
Under Sec. 37.9(e)(5)(i), TSA may terminate a certificate of
waiver for serious or egregious violations. More specifically, TSA may
terminate a waiver if TSA determines that a State:
<bullet> does not comply with REAL ID requirements in Sec.
37.51(a);
<bullet> is committing an egregious violation of any terms and
conditions (see Sec. 37.9(d)(3)) specified in the certificate of
waiver and is unwilling to cure such violation;
<bullet> is committing an egregious violation of reporting
requirements (see Sec. 37.9(e)(2)) and is unwilling to cure such
violation; or
<bullet> provided false information in its waiver application.
As required in Sec. 37.9(e)(5)(ii), before terminating a
certificate of waiver, TSA will provide written notice via email of
intent to terminate, including findings supporting the termination and
an opportunity for the State to present information. As specified, a
State would have 7 calendar days to respond to the notice, and TSA will
respond via email within 30 calendar days. TSA may withdraw the notice
of termination, request additional information, or issue a final
termination. Under Sec. 37.9(e)(5)(iii), if TSA issues a final
termination of a State's certificate of waiver, TSA will remove the
name of that State from the list of mDLs approved for Federal
acceptance for official purposes. A State whose certificate of waiver
has been terminated may apply for a new certificate of waiver by
submitting a new application.
Section 37.9(g) provides that information provided by States in
response to paragraphs (a), (b)(2), (c), (e)(2), (e)(4)(ii), and
(e)(5)(ii) of this section, which concern requirements on States to
apply for and maintain a waiver, may contain SSI and therefore must be
handled and protected in accordance with 49 CFR part 1520. Although the
NPRM did not propose Sec. 37.9(g), the final rule adds this provision
based on TSA's evaluation of comments to the NPRM (see Part IV.W.,
below) seeking clarification on SSI protection for information in State
waiver applications. TSA determined that a provision concerning SSI
protection is warranted not only for information in State waiver
applications, but also for other information provided by States in
response to Sec. Sec. 37.9(b)(2), (c), (e)(2), (e)(4)(ii), and
(e)(5)(ii), which has been added in this final rule.
7. Effect of Status of Waiver on REAL ID Compliance
Section 37.9(f) clarifies that the status of a State's issued
certificate of waiver, including the status of a pending application
for a waiver, has no bearing on TSA's determination of that State's
compliance or non-compliance with any other section of this part. A
certificate of waiver that TSA has issued to a State is not a
determination that the State is in compliance with any other section in
this part. Similarly, an application for a waiver that TSA has deemed
insufficient or denied, or a certificate of waiver TSA has suspended or
terminated, or that has expired, is not a determination that the State
is not in compliance with any other section in this part.
8. Incorporation by Reference
Sections 37.8(b) and 37.10(a) and Appendix A of this final rule
provide that States must comply with applicable sections of specified
industry standards and government guidelines. The Office of Federal
Register (OFR) has published regulations concerning IBR.\53\ These
regulations require that, for a final rule, agencies must discuss in
the preamble to the rule the way in which materials that the agency
IBRs are reasonably available to interested persons, and how interested
parties can obtain the materials. Additionally, the preamble to the
rule must summarize the material.\54\
---------------------------------------------------------------------------

\53\ 1 CFR part 51.
\54\ 1 CFR 51.5(b).
---------------------------------------------------------------------------

The final rule amends subpart A, Sec. 37.4, by revising the
introductory paragraph and adding new IBR material specified below. TSA
has worked to ensure that IBR materials are reasonably available to the
class of persons affected. All materials may be obtained from their
publisher, as discussed below, and certain materials as noted are
available in the Federal Docket Management System at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket number TSA-2023-0002. In addition, all but
one of the IBR'd standards (ISO/IEC 18013-5:2021(E), discussed in Part
II.D., below) are available to the public for free at the hyperlinks
provided, and all are available for inspection on a read-only basis at
TSA. Please contact TSA at Transportation Security Administration,
Attn.: OS/ESVP/REAL ID Program, TSA Mail Stop 6051, 6595 Springfield
Center Dr., Springfield, VA 20598-6051, (866) 289-9673, or visit
<a href="http://www.tsa.gov">www.tsa.gov</a>. You may also contact the REAL ID Program Office at <a href="/cdn-cgi/l/email-protection#feacbbbfb2b7bad393bab2899f97889b8cbe8a8d9fd09a968dd0999188">[email&#160;protected]</a> or visit www.tsa.gov/REAL-ID/mDL.\55\
---------------------------------------------------------------------------

\55\ The National Archives and Records Administration (NARA)
maintains the official Federal copy of the IBR'd standards, but does
not provide or distribute copies. See <a href="http://www.archives.gov/federal-register/cfr/ibr-locations.htm">www.archives.gov/federal-register/cfr/ibr-locations.htm</a> (last visited Sept. 17, 2024).
---------------------------------------------------------------------------

The rule revises the introductory paragraph proposed in the NPRM to
clarify availability of IBR materials. Specifically, the final rule
replaces DHS with TSA as a location where IBR material is available for
inspection, and provides additional points of contact at TSA. TSA also
notes that certain material is available in the Federal Docket
Management System at <a href="https://regulations.gov">https://regulations.gov</a>, docket number TSA-2023-
0002. The final rule makes these revisions given TSA's evaluation of
public comments concerning access to IBR materials (see Part IV.K.,
below).
The final rule IBRs the following material:

[[Page 85352]]

a. American Association of Motor Vehicle Administrators
In September 2022, the American Association of Motor Vehicle
Administrators (AAMVA) published Mobile Driver's License (mDL)
Implementation Guidelines Version 1.2 (Jan. 2023) (AAMVA Guidelines),
American Association of Motor Vehicle Administrators, 4401 Wilson
Boulevard, Suite 700, Arlington, VA 22203, available at <a href="https://aamva.org/getmedia/b801da7b-5584-466c-8aeb-f230cef6dda5/mDL-Implementation-Guidelines-Version-1-2_final.pdf">https://aamva.org/getmedia/b801da7b-5584-466c-8aeb-f230cef6dda5/mDL-Implementation-Guidelines-Version-1-2_final.pdf</a> (last visited July 17,
2024). The AAMVA Guidelines are available to the public for free at the
link provided above. The AAMVA Guidelines adapt industry standard ISO/
IEC 18013-5:2021(E) (discussed in Part II.D.4., below), for State
driver's licensing agencies through the addition of more qualified
recommendations, as the ISO/IEC standard has been developed for
international purposes and may not meet all purposes and needs of
States and the Federal Government. For example, Part 3.2 of the AAMVA
Guidelines modify and expand the data elements specified in ISO/IEC
18013-5:2021(E), in order to enable the mDL to indicate the REAL ID
compliance status of the underlying physical card, as well as to ensure
interoperability necessary for Federal acceptance. AAMVA has added mDL
data fields ``DHS_compliance'' and ``DHS_temporary_lawful_status.''
These data fields provide the digital version of the requirements for
data fields for physical cards defined in 6 CFR 37.17(n) \56\ and 6 CFR
37.21(e),\57\ respectively. As discussed generally in Part III.C.4,
below, Sec. Sec. 37.10(a)(1) and (4) of this rule require a State to
explain, as part of its application for a waiver, how the State issues
mDLs that are compliant with specified requirements of the AAMVA
Guidelines.
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\56\ Section 37.17(n) provides, ``The card shall bear a DHS-
approved security marking on each driver's license or identification
card that is issued reflecting the card's level of compliance as set
forth in Sec. 37.51 of this Rule.''
\57\ Section 37.21(e) provides, ``Temporary or limited-term
driver's licenses and identification cards must clearly indicate on
the face of the license and in the machine readable zone that the
license or card is a temporary or limited-term driver's license or
identification card.''
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b. Certification Authority Browser Forum
The Certification Authority Browser Forum (CA/Browser Forum) is an
organization of vendors of hardware and software used in the production
and use of publicly trusted certificates. These certificates are used
by forum members, non-member vendors, and governments to establish the
security and trust mechanisms for public key infrastructure-enabled
systems. The CA/Browser Forum has published two sets of requirements
applicable for any implementers of PKI, including States that are
seeking to deploy certificate systems that must be publicly trusted and
used by third parties:
<bullet> Baseline Requirements for the Issuance and Management of
Publicly-Trusted Certificates v. 1.8.6 (December 14, 2022), available
at <a href="https://cabforum.org/wp-content/uploads/CA-Browser-Forum-BR-1.8.6.pdf">https://cabforum.org/wp-content/uploads/CA-Browser-Forum-BR-1.8.6.pdf</a> (last visited July 17, 2024), establishes a set of
fundamental controls for the management of publicly trusted certificate
authorities, including the controls and processes required for the
secure generation of digital signing keys; and
<bullet> Network and Certificate System Security Requirements v.
1.7 (April 5, 2021), available at <a href="https://cabforum.org/wp-content/uploads/CA-Browser-Forum-Network-Security-Guidelines-v1.7.pdf">https://cabforum.org/wp-content/uploads/CA-Browser-Forum-Network-Security-Guidelines-v1.7.pdf</a> (last
visited July 17, 2024), establishes a broad set of security controls
needed to securely manage a publicly trusted certificate authority and
key infrastructure management system.
CA/Browser Forum, 815 Eddy St, San Francisco, CA 94109, (415) 436-
9333. To issue mDLs that can be trusted by Federal agencies, each
issuing State must establish a certificate system, including a root
certification authority that is under control of the issuing State. TSA
believes the CA/Browser Forum requirements for publicly trusted
certificates have been proven to be an effective model for securing
online transactions. As discussed generally in Part III.C.4, below,
Appendix A, paragraphs 1, 2, and 4-8, require compliance with specified
requirements of the CA/Browser Forum Baseline Requirements and/or
Network and Certificate System Security Requirements.
c. DHS and Cybersecurity and Infrastructure Security Agency
DHS protects the nation from multiple threats, including
cybersecurity, aviation and border security, among others. The
Cybersecurity and Infrastructure Security Agency (CISA), a component of
DHS, is the operational lead for Federal cybersecurity and the national
coordinator for critical infrastructure security and resilience. DHS
and CISA have published two guidelines which are relevant to the
operations of States' mDL issuance systems:
<bullet> DHS, National Cyber Incident Response Plan (Dec. 2016),
available at <a href="https://www.cisa.gov/uscert/sites/default/files/ncirp/National_Cyber_IncidentResponse_Plan.pdf">https://www.cisa.gov/uscert/sites/default/files/ncirp/National_Cyber_IncidentResponse_Plan.pdf</a> (last visited July 17, 2024),
further standardizes the response process for cyber incidents including
the preparation, detection and analysis, containment, eradication and
recovery, and post-incident activities. Department of Homeland
Security, 2707 Martin Luther King Jr. Ave. SE, Washington, DC 20528;
(202) 282-8000; and
<bullet> CISA, Federal Government Cybersecurity Incident &
Vulnerability Response Playbooks (Nov. 2021),\58\ available at <a href="https://www.cisa.gov/sites/default/files/publications/Federal_Government_Cybersecurity_Incident_and_Vulnerability_Response_Playbooks_508C.pdf">https://www.cisa.gov/sites/default/files/publications/Federal_Government_Cybersecurity_Incident_and_Vulnerability_Response_Playbooks_508C.pdf</a> (last visited July 17, 2024), was developed consistent
with the direction of Presidential Policy Directive 41 (PPD-41) to
establish how the U.S. responds to and recovers from significant cyber
incidents which pose a risk to critical infrastructure, including the
identity issuance infrastructure operated by U.S. States issuing mDLs.
---------------------------------------------------------------------------

\58\ The NPRM inadvertently omitted ``Federal Government'' from
the title of this publication.
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Cybersecurity and Infrastructure Security Agency, Mail Stop 0380,
245 Murray Lane, Washington, DC 20528-0380, (888) 282-0870. These
guidelines, available for free at the links provided above and in the
Federal Docket Management System at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket
number TSA-2023-0002, provide details on best practices for management
of systems during a cybersecurity incident, providing recommendations
on incident and vulnerability response. Management of cybersecurity
incidents and vulnerabilities is critical to maintenance of a State's
mDL issuance IT infrastructure. As discussed generally in Part III.C.4,
below, Appendix A, paragraph 8, requires compliance with specified
requirements of the DHS National Cyber Incident Response Plan and the
CISA Federal Government Cybersecurity Incident & Vulnerability Response
Playbooks.
d. International Organization for Standardization and International
Electrotechnical Commission
International standards-setting organizations, the International
Organization for Standardization (ISO) and the International
Electrotechnical Commission (IEC),\59\ are jointly drafted

[[Page 85353]]

international standards specific to mDLs.\60\ In September 2021, ISO
and IEC published ISO/IEC 18013, Part 5, entitled, ``Personal
identification--ISO-compliant driving licence.'' ISO/IEC 18013-
5:2021(E), Personal identification--ISO-compliant driving licence--Part
5: Mobile driving licence (mDL) application (Sept. 2021), International
Organization for Standardization, Chemin de Blandonnet 8, CP 401, 1214
Vernier, Geneva, Switzerland, +41 22 749 01 11, <a href="http://www.iso.org/contact-iso.html">www.iso.org/contact-iso.html</a>. This standard is available for inspection at TSA as discussed
above. In addition, TSA is working with the American National Standards
Institute (ANSI), a private organization not affiliated with DHS, to
add this standard to the ANSI IBR Standards Portal which provides free,
read-only access.\61\ TSA has participated in the development of these
standards as a non-voting member of the United States national body
member of the Joint Technical Committee.\62\
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\59\ ISO is an independent, non-governmental international
organization with a membership of 164 national standards bodies. ISO
creates documents that provide requirements, specifications,
guidelines or characteristics that can be used consistently to
ensure that materials, products, processes and services are fit for
their purpose. The IEC publishes consensus-based international
standards and manages conformity assessment systems for electric and
electronic products, systems and services, collectively known as
``electrotechnology.'' ISO and IEC standards are voluntary and do
not include contractual, legal or statutory obligations. ISO and IEC
standards contain both mandatory requirements and optional
recommendations, and those who choose to implement the standards
must adopt the mandatory requirements.
\60\ ISO defines an International Standard as ``provid[ing]
rules, guidelines or characteristics for activities or for their
results, aimed at achieving the optimum degree of order in a given
context. It can take many forms. Apart from product standards, other
examples include: test methods, codes of practice, guideline
standards and management systems standards.'' <a href="http://www.iso.org/deliverables-all.html">www.iso.org/deliverables-all.html</a> (last visited July 17, 2024).
\61\ ANSI, IBR Standards Portal, <a href="https://ibr.ansi.org/">https://ibr.ansi.org/</a> (last
visited July 17, 2024).
\62\ A member of TSA serves as DHS's representative to the
Working Group.
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Standard ISO/IEC 18013-5:2021(E) standardizes communications
interfaces between an mDL holder and an entity seeking to read an
individual's mDL for identify verification purposes, and between a
verifying entity and a State driver's licensing agency. This standard
also sets full operational and communication requirements for both mDLs
and mDL readers. Standard ISO/IEC 18013-5:2021(E) applies to
``attended'' mode verification, in which both the mDL holder and an
officer or agent of a verifying entity are physically present together
during the time of identity verification.\63\ TSA believes ISO/IEC
18013-5:2021(E) is critical to enabling the interoperability, security,
and privacy necessary for wide acceptance of mDLs by Federal agencies
for official purposes. Specifically, Sec. 37.8 of this rule requires
Federal agencies to validate an mDL as required by standard ISO/IEC
18013-5:2021(E), and Sec. 37.10(a)(4) requires a State to explain, as
part of its application for a waiver, how the State issues mDLs that
are interoperable with this standard to provide the security necessary
for Federal acceptance.
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\63\ Part 7 of Series ISO/IEC 18013, entitled ``mDL add-on
function,'' is an upcoming technical specification that will
standardize interfaces for ``unattended'' mode verification, in
which the mDL holder and officer/agent of the verifying agency are
not physically present together, and the identity verification is
conducted remotely. Unattended identity verification is not
currently considered a REAL ID use case. ISO defines a ``Technical
Specification'' as ``address[ing] work still under technical
development, or where it is believed that there will be a future,
but not immediate, possibility of agreement on an International
Standard. A Technical Specification is published for immediate use,
but it also provides a means to obtain feedback. The aim is that it
will eventually be transformed and republished as an International
Standard.'' ISO, Deliverables, <a href="http://www.iso.org/deliverables-all.html">www.iso.org/deliverables-all.html</a>
(last visited July 17, 2024).
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e. National Institute for Standards and Technology
The National Institute of Standards and Technology (NIST), part of
the U.S. Department of Commerce, promotes U.S. innovation and
industrial competitiveness by advancing measurement science, standards,
and technology in ways that enhance economic security and quality of
life. As part of this mission, NIST produces measurements and standards
relied on by the U.S. agencies and industry.
i. Federal Information Processing Standards
NIST maintains the Federal Information Processing Standards (FIPS)
which relate to the specific protocols and algorithms necessary to
securely process data. This suite of standards includes:
<bullet> NIST FIPS PUB 140-3, Security Requirements for
Cryptographic Modules (March 22, 2019), available at <a href="https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.140-3.pdf">https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.140-3.pdf</a> (last visited July
17, 2024), specifies the security requirements for cryptographic
modules that are used to secure the keys which are used in digitally
signing mDLs, and properly securing these keys is essential to creating
a publicly trusted certificate authority for mDL issuance;
<bullet> NIST FIPS PUB 180-4, Secure Hash Standard (SHS) (August 4,
2015), available at <a href="https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.180-4.pdf">https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.180-4.pdf</a> (last visited July 17, 2024), specifies the secure
hash standard, a cryptographic algorithm necessary to provide message
and data element integrity while using the transaction modes specified
in ISO/IEC 18013-5:2021(E) for mDL data transmission;
<bullet> NIST FIPS PUB 186-5, Digital Signature Standard (DSS)
(February 3, 2023), available at <a href="https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.186-5.pdf">https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.186-5.pdf</a> (last visited July 17, 2024), specifies
digital signature standards used in ISO/IEC 18013-5:2021(E) standard to
provide data integrity for mDL data elements issued by states; and
<bullet> NIST FIPS PUB 197-upd1, Advanced Encryption Standard (AES)
(May 9, 2023) available at <a href="https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197-upd1.pdf">https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197-upd1.pdf</a> (last visited July 17, 2024), specifies the
Advanced Encryption Standard, which is a cryptographic algorithm used
to securely encrypt data messages used in the transmission of mDL data
in ISO/IEC 18013-5:2021(E).
Although the NPRM proposed to IBR the prior (2001) version, NIST
FIPS PUB 197, the final rule IBRs the current (May 2023) updated
version, NIST FIPS PUB 197-upd1, which NIST confirms makes editorial
improvements, but no technical changes to the version specified in the
NPRM.\64\ TSA has reviewed the updates and confirms they are formatting
and stylistic clarifications. Although the public had an opportunity to
comment, no such comments were received. Given the absence of public
comments, no substantive changes to the updated standard, and to ensure
continuing public access to this standard, the final rule IBRs the
updated version, NIST FIPS PUB 197-upd1, which is consistent with the
NPRM's proposal to IBR the previous version. TSA concludes that the
compliance impact on stakeholders of both versions of this standard is
identical.
---------------------------------------------------------------------------

\64\ See <a href="https://csrc.nist.gov/News/2023/nist-updates-fips-197-advanced-encryption-standard">https://csrc.nist.gov/News/2023/nist-updates-fips-197-advanced-encryption-standard</a> (last visited July 17, 2024); <a href="https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197-upd1.pdf">https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197-upd1.pdf</a> (last visited
July 17, 2024) at 37; <a href="https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197.pdf">https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.197.pdf</a> (last visited July 17, 2024) at 1.
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<bullet> NIST FIPS PUB 198-1, The Keyed-Hash Message Authentication
Code (HMAC) (July 16, 2008) available at <a href="https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.198-1.pdf">https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.198-1.pdf</a> (last visited July 17, 2024),
specifies the keyed hash message authentication code which is an
essential cryptographic algorithm to create a properly interoperable
mDL using ISO/IEC 18013-5:2021(E); and
<bullet> NIST FIPS PUB 202, SHA-3 Standard: Permutation-Based Hash
and Extendable-Output Functions (August 4, 2015) available at https://

[[Page 85354]]

nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.202.pdf (last visited July 17,
2024), specifies the secure hash algorithm 3, a cryptographic algorithm
necessary to provide message and data element integrity in ISO/IEC
18013-5:2021(E) for mDL data transmission.
National Institute of Standards and Technology, U.S. Department of
Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. This suite of FIPS
standards, available in the Federal Docket Management System at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket number TSA-2023-0002, are critical to the
transactions required for mDLs, and any Federal systems which interact
with or are used to verify an mDL for REAL ID official purposes will be
required to use the algorithms and protocols defined. As discussed
generally in Part III.C.4, below, Sec. 37.10(a)(4) requires compliance
with specified requirements of NIST FIPS PUB 180-4, 186-5, 197-upd1,
198-1, and 202, and Appendix A, paragraph 5, requires compliance with
FIPS PUB 140-3.
ii. Security and Privacy Controls for Information Systems and
Organizations; Key Management
NIST has published several guidelines to protect the security and
privacy of information systems:
<bullet> NIST SP 800-53 Rev. 5, Security and Privacy Controls for
Information Systems and Organizations (September 2020), available at
<a href="https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r5.pdf">https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r5.pdf</a> (last visited July 17, 2024), specifies a broad set of
security and privacy controls which states must use to manage the
information systems involved in the issuance and management of mDLs;
<bullet> NIST SP 800-57 Part 1, Rev. 5, Recommendation for Key
Management: Part 1--General (May 2020), available at <a href="https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt1r5.pdf">https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt1r5.pdf</a>
(last visited July 17, 2024), provides general recommendations for
states managing cryptographic keys that are used to securely issue
mDLs;
<bullet> NIST SP 800-57 Part 2, Rev. 1, Recommendation for Key
Management: Part 2--Best Practices for Key Management Organizations
(May 2019), available at <a href="https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt2r1.pdf">https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57pt2r1.pdf</a> (last visited July 17,
2024), provides best practices states must follow while managing
cryptographic keys; and
<bullet> NIST SP 800-57 Part 3, Rev. 1, Recommendation for Key
Management, Part 3: Application-Specific Key Management Guidance
(January 2015) available at <a href="https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57Pt3r1.pdf">https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-57Pt3r1.pdf</a> (last visited July 17,
2024), provides for application specific controls for the management of
cryptographic keys.
National Institute of Standards and Technology, U.S. Department of
Commerce, 100 Bureau Drive, Gaithersburg, MD 20899. All of these
documents are available in the Federal Docket Management System at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket number TSA-2023-0002.
All four of these standards relate to the administration of a
certificate system including: access management; certificate life-cycle
policies; operational controls for facilities and personnel; technical
security controls; and vulnerability management such as threat
detection, incident response, and recovery planning. Due to the
sensitive nature of State certificate system processes and the
potential for significant harm to security if confidentiality,
integrity, or availability of the certificate systems is compromised,
the minimum risk controls specified in Appendix A require compliance
with the NIST SP 800-53 Rev. 5 ``high baseline'' as set forth in that
document, as well as compliance with the specific risk controls
described in Appendix A. In addition, and as discussed generally in
Part III.C.4, below: Appendix A, paragraphs 1-8, require compliance
with NIST SP 800-53 Rev. 5; paragraphs 1 and 5 require compliance with
NIST SP 800-57 Part 1, Rev. 5; paragraph 1 requires compliance with
NIST SP 800-57 Part 2 Rev. 1; and paragraph 1 requires compliance with
NIST SP 800-57 Part 3, Rev. 1.
iii. Digital Identity Guidelines
NIST has published NIST SP 800-63-3, which covers technical
requirements for Federal agencies implementing digital identity: NIST
Special Publication 800-63-3, Digital Identity Guidelines (June 2017),
National Institute of Standards and Technology, U.S. Department of
Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at
<a href="https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-3.pdf">https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-3.pdf</a> (last visited July 17, 2024)and in the Federal Docket Management
System at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket number TSA-2023-0002.
The Digital Identity Guidelines define technical requirements in
each of the areas of identity proofing, registration, user
authentication, and related issues. Because TSA is not aware of a
common industry standard for mDL provisioning that is appropriate for
official REAL ID purposes today, TSA views the Digital Identity
Guidelines as critical to informing waiver application requirements for
States regarding provisioning. As discussed generally in Part III.C.4,
below, under Sec. 37.10(a)(2) of the final rule, which requires
compliance with Appendix A, a State must explain, as part of its
application for a waiver, how the State issues mDLs that are compliant
with NIST SP 800-63-3 to provide the security for mDL IT infrastructure
necessary for Federal acceptance.
NIST has also published Special Publication 800-63B, Digital
Identity Guidelines: Authentication and Lifecycle Management (June
2017), National Institute of Standards and Technology, U.S. Department
of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at
<a href="https://nvlpubsnist.gov/nistpubs/specialpublications/nist.sp.800-63b.pdf">https://nvlpubsnist.gov/nistpubs/specialpublications/nist.sp.800-63b.pdf</a> (last visited July 17, 2024) and in the Federal Docket
Management System at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket number TSA-
2023-0002. This document, which is a part of NIST SP 800-63-3, provides
technical requirements for Federal agencies implementing digital
identity services. The standard focuses on the authentication of
subjects interacting with government systems over open networks,
establishing that a given claimant is a subscriber who has been
previously authenticated and establishes three authenticator assurance
levels. As discussed generally in Part III.C.4, below, Sec.
37.10(a)(2) of this rule requires compliance with Appendix A, which
requires a State to explain, as part of its application for a waiver,
how the State manages its mDL issuance infrastructure using
authenticators at assurance levels provided in NIST SP 800-63B.
iv. Framework for Improving Critical Infrastructure Cybersecurity
NIST has published Framework for Improving Critical Infrastructure
Cybersecurity v. 1.1 (April 16, 2018), National Institute of Standards
and Technology, U.S. Department of Commerce, 100 Bureau Drive,
Gaithersburg, MD 20899, available at <a href="https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf">https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf</a> (last visited July 17, 2024). This
document, available in the Federal Docket Management System at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket number TSA-2023-0002, provides relevant
information for cybersecurity for States issuing mDLs. As discussed
generally in Part III.C.4, below, certain requirements from the NIST
Framework for Improving

[[Page 85355]]

Critical Infrastructure Cybersecurity have been adopted in Appendix A,
paragraphs 1, 2, and 5-8.

D. Impacted Stakeholders

This final rule applies to State driver's licensing agencies
issuing mDLs that seek a temporary waiver from TSA for its mDLs. The
waiver established by this rule enables Federal agencies to accept such
mDLs for official purposes, defined in the REAL ID Act as accessing
Federal facilities, entering nuclear power plants, boarding Federally
regulated commercial aircraft, and any other purposes that the
Secretary shall determine. Any Federal agency that chooses to accept
mDLs for official purposes must procure a reader in order to receive an
individual's identity data.
This final rule does not apply to:
<bullet> States that do not seek a waiver for mDLs;
<bullet> Non-State issuers of other forms of digital
identification; or
<bullet> Federal agencies that elect not to accept mDLs.
A State seeking a waiver for Federal acceptance of its mDLs for
official purposes is required to file with TSA a complete application
and supporting documents.\65\ A State must demonstrate how its mDLs
meet the requirements for a waiver set forth in Sec. Sec. 37.10(a) and
(b) when completing the application.
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\65\ Section 37.9(a).
---------------------------------------------------------------------------

E. Use Cases Affected by This Rule

This final rule applies only to Federal acceptance of mDLs for
official purposes, defined by the REAL ID regulations as accessing
Federal facilities, entering nuclear power plants, and boarding
Federally regulated commercial aircraft. Any other purpose is beyond
the scope of this rulemaking. For example, a waiver issued under this
rule does not apply to any of the following:
<bullet> mDL acceptance by Federal agencies for non-REAL ID
official uses (e.g., applying for Federal benefits);
<bullet> mDL acceptance by non-Federal agencies (e.g., State
agencies, businesses, private persons);
<bullet> Commercial transactions; or
<bullet> Physical driver's licenses or identification cards.
Nothing in this rule requires Federal agencies to accept mDLs, as
each Federal agency retains the discretion to determine its
identification policies. Additionally, nothing in this rule requires a
State to seek a waiver or issue mDLs.

F. Severability

TSA notes that these changes impact multiple provisions that are
not necessarily interrelated and can function independent of one
another. As such, TSA believes that some of the provisions of each new
part can function sensibly independent of other provisions. Therefore,
in the event that any provisions in this rulemaking action as finalized
are invalidated by a reviewing court, TSA intends remaining provisions
to remain in effect to the fullest extent possible.

IV. Discussion of Comments

TSA published the NPRM on August 30, 2023,\66\ and the deadline for
public comments was October 16, 2023. TSA received 31 comments,\67\
including some comments that were submitted shortly after the comment
period closed. TSA carefully considered every comment received as part
of the official record, including those that were submitted late.
Comments and TSA's responses are as summarized by topic below.
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\66\ See 88 FR 60056.
\67\ The 31 total comments include one duplicate, one
correction, and one confidential submission.
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A. Waiver Eligibility

Comments: Several State driver's licensing agencies, an
association, and some vendors expressed concerns that under Sec. Sec.
37.7(b)(3) and 37.10(a)(1)(vii) of the NPRM, TSA would issue waivers to
States that issued mDLs only to holders of REAL ID-compliant physical
cards, but a State that issues mDLs to two groups of individuals--both
holders of REAL ID-compliant AND non-compliant physical cards--would be
ineligible for a waiver because of issuance to the latter group. Stated
differently, a State's issuance of mDLs to holders of non-compliant
physical cards alone would remove the State's eligibility to apply for
a waiver.
Another commenter requested clarification regarding whether a State
may still apply for and receive a waiver after enforcement of the REAL
ID Act and regulations begins on May 7, 2025.
TSA Response: TSA agrees with commenters and is revising the final
rule to clarify that a State will not be excluded from eligibility to
apply for a waiver if a State issues mDLs to both REAL ID compliant and
non-compliant physical cardholders. The intended purpose of TSA's
requirement is for States to ensure that an individual's mDL matches
the compliance status of the underlying physical card, and for States
to issue an mDL in a manner that enables a verifying Federal agency to
confirm the underlying physical card's REAL ID compliance status.
Consistent with that intent, and to address commenters' concerns,
the final rule makes three changes to the NPRM. First, this final rule
deletes Sec. 37.7(b)(3), as proposed by the NPRM, which provided as a
criterion of waiver eligibility that a State must issue mDLs only to
individuals who have been issued REAL ID-compliant physical cards.
Second, the final rule deletes a similar requirement from Sec.
37.10(a)(1)(vii), as proposed by the NPRM, which provided that States
must issue an mDL only to a resident who has been issued a valid,
unexpired, and REAL ID-compliant physical card that underlies the mDL.
The final rule modifies this provision to require States to populate
this data field to correspond to the REAL ID compliance status of the
underlying physical driver's license or identification card that a
State has issued to an mDL holder. Specifically, Sec.
37.10(a)(1)(vii)(A) requires mDL data element ``DHS_compliance'' to be
populated with ``F'' if the underlying card is REAL ID-compliant, or as
required by the AAMVA Guidelines,\68\ Section 3.2. In addition, Sec.
37.10(a)(1)(vii)(B) requires mDL data element ``DHS_compliance'' to be
populated ``N'' if the underlying card is not REAL ID-compliant.
---------------------------------------------------------------------------

\68\ The AAMVA Guidelines require, among other things, that if
the `EDL_credential' element is present, the `DHS_compliance'
element shall have a value of ``F.''
---------------------------------------------------------------------------

Third, the final rule adds new Sec. 37.8(c), which requires
Federal agencies to confirm that the physical card underlying the mDL
is REAL ID-compliant, as Federal agencies will only be permitted to
accept mDLs if the underlying card is REAL ID-compliant. Federal
agencies would make that determination by reviewing data element
``DHS_compliance'' and confirming that it has been marked ``F.'' These
changes ensure--without compromising a State's waiver eligibility--that
an individual's mDL matches the compliance status of the physical card,
and that Federal agency will accept only those mDLs that are based on a
REAL ID-compliant underlying physical card.
Separately, in response to the commenter's question regarding
waiver applications after REAL ID enforcement begins on May 7, 2025,
TSA confirms that a State indeed may apply for and receive a waiver
after enforcement begins.

B. Conditions on Federal Agencies Accepting mDLs

Comments: An association requested clarification concerning
requirements

[[Page 85356]]

on Federal agencies that choose to accept mDLs. Specifically, the
commenter noted that the preamble provided that one of the ``conditions
for TSA acceptance'' is that TSA has determined the mDL issuing State
is REAL ID-compliant. The commenter sought clarification on the timing
of when this compliance determination is made, specifically, whether
this is a one-time determination, whether it is made at the time when
TSA is reviewing a State's application, or if the State's re-
certification schedule is applicable.
TSA Response: First, TSA notes that this rule does not set
conditions only for ``TSA Acceptance.'' Instead, the rule sets forth
requirements for all Federal agencies who choose to accept mDLs for
official purposes as defined in the REAL ID Act. Second, TSA clarifies
that determination of a State's REAL ID compliance status is not a
requirement for other Federal agencies to make. The only conditions on
Federal agencies who accept mDLs are set forth in Sec. 37.8, which
requires the agency to: (1) confirm the State holds a valid waiver by
reviewing the specified TSA website, (2) use an mDL reader to
communicate with and validate an individual's mDL, (3) confirm that the
underlying physical card is REAL ID-compliant, and (4) notify TSA
within 72 hours of the discovery of specified security, privacy, or
data integrity threats. A State's compliance status is an element of a
State's eligibility to apply for a waiver, as set forth in Sec.
37.7(b)(1), and TSA will make this determination when reviewing a
State's application. However, TSA acknowledges that the preamble to the
NPRM states that a Federal agency must make this compliance
determination. TSA has revised the preamble to this final rule to
reflect the intended requirements.
In response to comments, TSA also provides further clarification on
the timing of its determination of a State's compliance status. TSA
will make an initial determination of State compliance status at the
time of application, but this is not a one-time determination. States
have a continuing obligation, under 6 CFR 37.55(b), to maintain their
compliance status by recertifying compliance every 3 years, an
obligation which continues throughout the duration of the waiver. If
recertification occurs after a State is issued a waiver and TSA
determines the State is no longer in compliance, the waiver may be
subject to review pursuant to Sec. 37.9(e)(5).

C. Waiver Application Criteria

1. Personally Identifiable Information and Privacy
Comments: An association remarked that Sec. 37.10(a)(1)(i)
introduces additional requirements concerning individuals' Personally
Identifiable Information (PII) that are not related to mDL issuance and
exceed existing requirements in the regulations. The commenter advised
that the rule should not expand REAL ID requirements that are unrelated
to mDLs.
The association further noted that although privacy is an important
concept, it applies mostly to the agreement between an issuing State
and the mDL holder, and that the only applicability to verifying
Federal agencies is ensuring that the agency receives only the
information necessary for identity verification. The commenter
therefore recommended updating Sec. 37.10(a)(3) so that States are
only required to provision mDLs to digital wallets in a manner that
will release only the data requested by the verifier. Additional
privacy requirements, the commenter submitted, while important to
individuals and States, may not affect verifying agencies.
TSA Response: Sections 37.10(a)(1)(i) and (a)(3) of this rule
extend to mDLs PII protections that are analogous to those in the
existing regulations regarding physical cards. This rule is adding
mirroring PII provisions because mDLs involve a new data set and
additional elements that must be protected, which are not addressed in
the current regulations. Section 37.10(a)(1)(i) requires encryption of
PII, and Sec. 37.10(a)(3) requires an explanation of the means used to
protect PII during processing, storage, and destruction of mDL records
and provisioning records. Nothing in this final rule modifies or
imposes new requirements regarding physical cards. While TSA concurs
that there is a privacy interest between individuals and States,
verifying Federal agencies have an equally important privacy interest
in trusted mDL transactions.
2. Provisioning
Comments: An association contended that although the intended goal
of Sec. Sec. 37.10(a)(1)(iii)-(vi) is the step of ``binding,'' which
means ensuring that an mDL is provisioned to the correct mDL holder's
device, binding has no value to verifying Federal agencies, other than
copy protection, at the time of identity verification. The association
questions, therefore, the need for these requirements.
TSA Response: ``Binding,'' a critical step in mDL provisioning,
refers to the process where the issuing State binds, or pairs, the mDL
data to a specific device through the generation of the device key and
signing of the mobile security object. Binding is critically important
to all stakeholders involved in an mDL transaction, including verifying
Federal agencies, as they share a strong interest in a secure, trusted
mDL ecosystem in which identity data is protected during mDL
provisioning, provided only to the rightful holder of the data, bound
to that holder's device, and resists cloning to other devices unless
approved by the issuing State. Section 37.10(a)(1) sets forth
requirements for provisioning, and the requirements specified in Sec.
37.10(a)(1)(iii)-(vi) provide the requisite security and privacy
protections to achieve secure binding. The TSA Waiver Guidance also
sets forth recommendations for provisioning and binding. To clarify the
relationship between provisioning and binding, the final rule adds a
new definition to Sec. 37.3 for ``provisioning.''
3. AAMVA mDL Implementation Guidelines
Comments: AAMVA noted that Sec. 37.10(a)(4) refers to version 1.1
of the AAMVA Guidelines, conflicting with Sec. 37.4, which
incorporates by reference version 1.2 of this document.
TSA Response: TSA agrees that Sec. 37.10(a)(4) of the NPRM
inadvertently listed version 1.1, instead of version 1.2, of the AAMVA
Guidelines. TSA notes that the NPRM correctly cited version 1.2 in all
other instances \69\ where it referenced the AAMVA Guidelines, and only
made a typographical error to version ``1.1'' in a single instance, in
Sec. 37.10(a)(4). TSA did not receive any comments to the contrary.
Accordingly, the final rule has made a technical correction in Sec.
37.10(a)(4) to address this typographical error and correctly refer to
version 1.2.
---------------------------------------------------------------------------

\69\ See 88 FR 60056, 60062, 60068, 60071, 60085, & 60087 (Aug.
30, 2023).
---------------------------------------------------------------------------

4. Resident Address Data Element
Comments: AAMVA submitted that Sec. 37.10(a)(4)(i) of the NPRM
characterizes the ``resident_address'' data element as ``optional,''
despite that the AAMVA Guidelines define this data element as
mandatory.
TSA Response: TSA clarifies that the ``resident_address'' data
element required in Sec. 37.10(a)(4)(i) refers to the data element as
defined in the ISO/IEC 18013-5:2021(E) standard namespace
``org.iso.18013.5.1,'' not any data

[[Page 85357]]

elements defined in the AAMVA Guidelines. The use of the term
``optional'' in Sec. 37.10(a)(4)(i) reflects ISO/IEC's designation of
that data element as defined in ISO/IEC 18013-5:2021(E). For
clarification, despite ISO/IEC's designation of ``resident_address'' as
an ``optional'' data field in ISO/IEC 18013-5:2021(E), Sec.
37.10(a)(4)(i) of this final rule mandates inclusion of that data
field.

D. TSA Waiver Application Guidance

Comments: An association recommended that the TSA Waiver Guidance
should include references to the corresponding sections of the rule.
The association further recommended that the documents incorporated by
reference in Sec. 37.4 should be moved to the Guidance to facilitate
efficient updates as new standards are published. A State noted that
the Guidance was not available at the website specified in Sec.
37.10(c).
TSA Response: TSA agrees that the Guidance would be more helpful if
it references the applicable provisions in the final rule to which the
Guidance applies. The Guidance has been revised to specifically include
the corresponding regulatory provisions where possible. TSA appreciates
the commenter's perspective and this opportunity to provide clarity to
the public and stakeholders.
Regarding the recommendation to move the standards from Sec. 37.4
to the Guidance to reflect updated or newly-published standards, TSA
notes that the Guidance is non-binding and does not establish any
legally enforceable requirements. All security measures, practices, and
metrics set forth are simply illustrative, non-exclusive examples for
States to consider as part of their overall strategy to address the
requirements under Sec. 37.10(a). Any legally enforceable requirements
must be set forth in regulatory text. Moreover, as provided in Sec.
37.10(c), TSA may update this Guidance as necessary to provide
additional information or address evolving threats to security,
privacy, or data integrity.
TSA also clarifies that the Guidance was available during the
comment period at the public rulemaking docket at <a href="http://www.regulations.gov">www.regulations.gov</a>,
and continues to be available. The website specified in Sec. 37.10(c),
and throughout the rule, was under development at the time of the NPRM
but is now live.

E. General Concerns About mDLs

Comments: Some public interest organizations posited that public
demand for mDLs is ``non-existent'' and ``conjectural.'' However, some
States disagreed. One State commented that it has issued more than
200,000 mDLs to residents following a pilot in 2017 and more recent
expansion in 2022 and 2023. Another State commented that in the 3
months since it began offering its mDL app, it has been downloaded more
than 7,000 times. Other commenters questioned the claimed mDL benefits
concerning security, privacy, consumer protection, contact-free
hygiene, among others, with one commenter opining that any such
benefits would be realized only by those with the financial and
technical means to purchase mobile devices that meet the specifications
in the proposed rule. Some commenters further noted that mDLs would
increase the vulnerability of driver's licensing agency databases to
cyberattacks.
However, other commenters believe mDLs provide potential security
and privacy benefits. One industry vendor commented that the rule would
strengthen mDL integrity and security, which the commenter believes is
critical to mDL holders and verifying entities. The commenter
specifically noted that unlike physical cards, which require an
agency's verifying officer to have specialized knowledge of potentially
``hundreds'' of different card designs of 56 issuing jurisdictions, the
electronic safeguards built into mDLs obviate the need for such
knowledge. The commenter further opined that mDLs provide privacy
protections by empowering the mDL holder to control precisely what
information is shared and with whom.
TSA Response: TSA disagrees that public demand for mDLs is weak. As
discussed in Part II.C.2., above, TSA understands that more than half
of all 56 issuing jurisdictions are considering or issuing mDLs, and
this number continues to increase. Indeed, TSA notes that some States
submitted comments disagreeing about the purported lack of demand for
mDLs.
Regarding potential benefits of mDLs, TSA continues to believe that
mDLs provide potential benefits, including security, privacy,
efficiency, and contact-free hygiene, as discussed further in the
NPRM.\70\ TSA has directly observed some of these benefits through its
ongoing mDL testing at airport checkpoints (discussed in Part II.C.2,
above). In addition, as discussed above, some commenters agreed with
TSA's view that mDLs provide potential security and privacy benefits.
---------------------------------------------------------------------------

\70\ See 88 FR at 60062.
---------------------------------------------------------------------------

TSA disagrees that the rule effectively requires the purchase of
smartphones that are costly or technologically complex, which
commenters contend would limit potential mDL benefits only to those
with financial and technical means. The potential benefits of mDLs can
be realized using nearly any smartphone available today. The only
technical requirements for such devices, as a result of this final
rule, are a smartphone that employs Bluetooth Low Energy and has secure
hardware capability to protect the device key associated with the mDL.
These technologies are widely available on most smartphones.
With respect to concerns that mDLs introduce new cyber
vulnerabilities, TSA continues to believe that the minimum security
requirements set forth in this rule would minimize the potential for
harm resulting from such threats. As discussed in Part III.C.4.iii
above, cyber threats are diverse and evolving, and TSA intends to
address them by updating its Waiver Application Guidance as necessary.
Some commenters agreed that this rulemaking would improve mDL security
and the ability to resist cyber threats. An advocacy group shared that
some States and industry today are using non-standardized technological
approaches with wide substantive variances in security methodologies,
thereby making some mDLs susceptible to fraud and privacy intrusions.
The commenter noted that the proposed rule would overcome those
concerns by providing standardized approaches to protect security and
privacy.

F. Scope of Rulemaking and mDL Acceptance

Comments: An association opined that mDLs could provide benefits to
Federal agencies beyond the uses discussed in the proposed rule.
Specifically, the association noted that the Departments of State and
Transportation could accept mDLs to improve issuance of passports and
commercial driver's licenses, respectively. The commenter also sought
clarification on how mDL acceptance, and REAL ID broadly, will be
operationalized at TSA, both today and when enforcement of the REAL ID
Act begins.
One State recommended that the definition of mDLs in the proposed
rule be expanded to include Enhanced Driver's Licenses and Enhanced
Identification Cards (collectively ``Enhanced Driver's Licenses'' or
``EDLs'').
TSA Response: TSA reiterates that the final rule applies only to
Federal acceptance of mDLs for official purposes, defined by the REAL
ID Act regulations as accessing Federal facilities, entering nuclear
power plants,

[[Page 85358]]

and boarding Federally regulated commercial aircraft. Any other purpose
is beyond the scope of this rulemaking.
TSA further notes that each Federal agency that chooses to accept
mDLs for official purposes must build its infrastructure, train its
workforce, and operationalize mDL acceptance. Each Federal agency has
the discretion to determine its own policies concerning acceptable IDs
for access to their facilities, and for communicating this information
to the public. TSA advises that questions concerning individual Federal
agency identification policies and operational details should be
directed to the appropriate program offices of individual agencies.
Regarding EDLs, the definition of ``mDL'' does not require
modification because EDLs comply with REAL ID standards (despite that
they are not governed by the REAL ID Act).\71\ For that reason, this
rule makes clear that mDLs issued based on EDLs will be accepted by
Federal agencies under the waiver process. Indeed, the AAMVA Guidelines
(incorporated by reference; see Sec. 37.4) similarly treat EDLs as
synonymous with REAL ID-compliant driver's licenses, requiring that
States encode EDL-based mDLs as REAL ID-compliant. To confirm that
States properly encode an EDL as REAL ID-compliant, Sec.
37.10(a)(1)(vii)(A) of this final rule requires States to populate the
``DHS_compliance'' data element with ``F,'' indicating REAL ID-
compliant, as required by the AAMVA Guidelines (see Part IV.A., above).
This ensures that a Federal officer verifying an EDL-based mDL will
correctly identify the REAL ID compliance status of the underlying EDL.
TSA appreciates the commenter's perspective and this opportunity to
provide clarity to stakeholders.
---------------------------------------------------------------------------

\71\ EDLs are governed by the Western Hemisphere Travel
Initiative. As explained in the 2008 Final Rule, DHS worked closely
with States to ensure that EDLs would comply with REAL ID standards.
73 FR 5272, 5276 (Jan. 29, 2008). Some States mark EDLs as REAL ID
compliant on the front of the card.
---------------------------------------------------------------------------

G. Privacy

Comments: Several public interest organizations expressed concerns
that this rulemaking would establish a national digital ID that Federal
agencies could use in wide ranging circumstances and purposes. They
suggested that this type of ID could lead to sharing of data between
State driver's licensing agencies and Federal agencies, producing
serious harms to privacy and security, particularly for immigrant
communities. Immigrants, the commenters argue, could suffer because
many States are issuing non-compliant cards to them, and this rule
could influence States to share with Federal agencies information
provided in immigrant applications, potentially resulting in
deportation.
Other public interest organizations noted that the proposed rule
would facilitate tracking and surveillance because the rule requires
``installation of a government app on a mobile device of a certain
type.'' An organization further suggested that it be allowed to view
source code for these apps in order to learn their true intent.
Commenters recommended that the rule should not go forward without
additional privacy safeguards, noting that standard ISO/IEC 18013-
5:2021(E) is not sufficient.
TSA Response: In the REAL ID Act, Congress established minimum
standards for the issuance of State-issued driver's licenses and
identification cards acceptable for official Federal purposes. Neither
the Act nor implementing regulations, 6 CFR part 37, contemplate the
creation of a sole national identification card or Federal database of
driver's license information. Under the statute, the official purposes
for Federal agency acceptance of mDLs relate to identity verification,
and Congress neither created nor authorized a national identification
card. Each individual licensing jurisdiction continues to issue its own
unique licenses, maintain its own records, and control access to those
records and the circumstances under which access may be provided. In
addition, States continue to have full discretion to issue driver's
licenses that are non-REAL ID compliant, or to issue dual classes of
compliant and non-compliant cards, which some States are doing. States
also have full discretion to choose not to issue mDLs at all. The REAL
ID Act does not prevent compliant States from issuing driver's licenses
and identification cards where the identity of the applicant cannot be
assured or for whom lawful presence is not determined. This rule does
not intend to interfere with existing State laws that are designed to
protect driver's licensing agency data from being shared and used to
enforce Federal immigration laws.
Nothing in this final rule requires a Federal agency to accept
mDLs. Agencies that choose to do so will receive mDL user information
only with the individual's consent, and individuals will control access
and use of the mDL in their mobile devices. For example, in TSA mDL
testing at airport security checkpoints, passengers present their mDLs
to TSA, which uses an mDL reader to establish a secure communications
channel with the passenger's mobile device to receive the passenger's
mDL data. TSA's mDL readers are programmed to request access only to
the relevant data needed for identity verification, which TSA cannot
receive unless the passenger provides consent. Upon consent, the
passenger's mobile device releases the mDL data to TSA, which
automatically validates the authenticity of the information by
confirming the digital signature of the issuing State driver's
licensing agency (see discussion in Part II.C.1., above). TSA
emphasizes that it receives passenger data only from the passenger's
mobile device, and not from the issuing State driver's licensing
agency. Although TSA does communicate with a driver's licensing agency,
this is solely to receive the agency's private key for data validation
purposes--not identity verification. TSA further emphasizes that it
never communicates with driver's licensing agencies information
regarding the locations or instances of passengers' mDL use. The
passenger's PII is used in the same manner that biographic information
from physical IDs is used. The PII that is collected from the mDL,
along with the live photo taken by TSA, is overwritten when the next
passenger scan occurs or when TSA switches off its ID scanner,
whichever occurs first.
An mDL offers additional privacy and security benefits over
physical IDs. An mDL transmits only the necessary information requested
by TSA, rather than sharing all data elements found on a physical ID,
and requires user's consent. All mDL data is encrypted at rest, during
transfer, and during all transactions through secure channels. Nothing
in this rule mandates that individuals must install a ``government''
app or any type of app at all. Nothing in this rule requires
individuals to use a mobile device of any type, or to choose to receive
an mDL at all. TSA appreciates the opportunity to provide a detailed
explanation of the privacy protections conferred by mDLs. Additional
information can be found in DHS's Privacy Impact Assessment \72\
concerning privacy risks in the use of digital IDs in the identity
verification process at TSA airport security checkpoints.
---------------------------------------------------------------------------

\72\ See DHS, Privacy Impact Assessment for the Travel Document
Checker Automation--Digital Identity Technology Pilots, <a href="http://www.dhs.gov/sites/default/files/2022-01/privacy-pia-tsa051-digitalidentitytechnologypilots-january2022_0.pdf">www.dhs.gov/sites/default/files/2022-01/privacy-pia-tsa051-digitalidentitytechnologypilots-january2022_0.pdf</a> (last visited July
17, 2024).
---------------------------------------------------------------------------

H. Waiver Validity Period and Renewals

Comments: An industry vendor sought clarification on whether a
waiver is valid until revoked or for a defined period. An association
urged that the

[[Page 85359]]

validity period of a waiver should be long enough such that States are
not frequently submitting applications for renewals and awaiting
determinations, and that the period should cover both waiver
applications and State re-certifications. The association further
submitted that TSA should consider a grace period to allow a waiver to
remain valid for some period after the Phase 2 rule is effective. A
State sought clarification of requirements for renewing a waiver if the
subsequent Phase 2 rulemaking does not commence within 3 years of
publication of this final rule in order to assess the resources
required to prepare the renewal application. A vendor sought
clarification regarding whether a new audit report is required for
renewal applications if a State uses the same issuance vendors for both
the initial and renewal applications.
TSA Response: Under Sec. 37.9(e)(1), a waiver will be valid for
three years from date of issuance unless suspended or terminated under
Sec. Sec. 37.9(e)(4) or (5). As discussed in Part III.C.6., above,
this rule specifies a three-year waiver validity period because it
aligns with the frequency for States to re-certify compliance with
Sec. 37.55(b). TSA believes this period is sufficient given the
expedient timeframes specified in Sec. 37.9(b) for TSA to respond to
applications. As set forth therein, TSA will provide: an initial
decision on applications within 60-90 calendar days, replies to States
responses to notices of insufficiency within 30 calendar days, and
determinations on petitions for reconsideration within 60 calendar
days. These timeframes resist the commenter's concern about potentially
being trapped in an enduring cycle of submitting renewal applications
and waiting extensive period for TSA responses. Moreover, the three-
year waiver validity period equals the three-year frequency of States
to recertify compliance required by Sec. 37.55(b), as the commenter
notes.
Regarding the timing of the Phase 2 rulemaking and the need for a
grace period, Sec. 37.9(e)(6) specifies requirements for States that
seek to renew waivers beyond the validity period. Renewal provides a
mechanism for waivers to persist independent of the timing of future
rulemakings, which obviates the need for a grace period.
With respect to audit reports for renewal applications, TSA
confirms that States must submit an audit report for renewals,
regardless of a State's mDL issuance vendors or system changes.
Regarding the resources required for renewal applications, TSA assumes
such audit costs for subsequent waiver applications will remain the
same as the audit for the initial application, but TSA does estimate a
25 percent to 70 percent reduction in the renewal application cost
because the State would have gained experience and collected evidence
from the previously approved waiver application.\73\ The processes to
renew a waiver are identical to those set forth in Sec. 37.9 for
initial applications.
---------------------------------------------------------------------------

\73\ States with an established mDL program will incur a 45-hour
time burden to complete an mDL waiver reapplication, down from a 60-
hour time burden for the initial mDL waiver application (25 percent
reduction). States without an established program may experience a
70 percent reduction in the time to complete a waiver reapplication
compared to the initial mDL waiver application (from 140 hours to 45
hours). See Sec. 2.4.1 of the Regulatory Impact Analysis.
---------------------------------------------------------------------------

I. Vendor and Technology ``Lock-in'' Effects

Comments: Some public interest organizations commented that the
NPRM would promote a ``lock-in'' effect, in which certain technologies
and vendors would gain a durable competitive advantage that would be
difficult for competitors to overcome. In particular, the commenters
expressed concern that markets for digital wallets and mDL readers are
likely to be harmed because of the rule's reliance on standards such as
ISO/IEC 18013-5:2021(E), which the commenters believe create security,
privacy, and interoperability risks. According to the commenters,
digital wallets and other necessary mDL technology should be based on
open standards.
TSA Response: TSA is currently testing mDLs issued by seven States
who are partnering with multiple providers of digital wallets. One
provider, SpruceID, is based on an open-source toolkit for developing
decentralized IDs.\74\ Additional digital wallet providers are expected
to enter the market in the near-term, and States are expected to
partner with them and seek to test their mDLs with TSA. The rule
provides States broad discretion to select technology vendors of their
choice, and does not prescribe any specific type of technology. This
absence of prescriptive requirements is intentional, as it accommodates
innovation and organic demand from consumers to facilitate
technological diversity.
---------------------------------------------------------------------------

\74\ See generally SpruceID, <a href="https://spruceid.com/products/issuing-digital-ids">https://spruceid.com/products/issuing-digital-ids</a> (last visited July 17, 2024).
---------------------------------------------------------------------------

The final rule resists technology lock-in by providing minimum
standards for security, privacy, and interoperability, while remaining
technology-agnostic. The ISO/IEC 18013-5:2021(E) standard enables the
required interoperability for REAL ID use cases where mDL holders
present their mDLs in person to an mDL reader. Adhering to this
standard for interoperability does not harm the developers of digital
wallets or readers because the standard does not prohibit other
standards or technologies from working alongside the ISO/IEC 18013-
5:2021(E) standard. Indeed, California is pursuing this approach with
SpruceID. The California mDL digital wallet, built on the open-source
SpruceID toolkit, supports both ISO/IEC 18013-5:2021(E) requirements
and an alternative technology, known as TruAge[supreg], which allows
the mDL to be used in broader transactions, such as age-verified
purchases.\75\ TSA recognizes that in a broad sense, there may be a
false ``lock-in'' effect of certain types of mDLs, namely, those that
meet the waiver application criteria set forth in the rule. However,
this is not a true lock-in in the traditional sense of economic path
dependence, in which barriers prevent innovation and deployment of
equal or potentially superior alternatives. The rule requires States to
demonstrate that they issue mDLs that provide security, privacy, and
interoperability necessary for Federal acceptance for official
purposes, but also allows States and industry wide latitude to innovate
as necessary to meet the regulatory requirements.
---------------------------------------------------------------------------

\75\ See State of California Department of Motor Vehicles,
TruAge Age-Verified Purchasing, <a href="https://www.dmv.ca.gov/portal/ca-dmv-wallet/truage/">https://www.dmv.ca.gov/portal/ca-dmv-wallet/truage/</a> (last visited July 17, 2024).
---------------------------------------------------------------------------

As structured, this rule does not create dependencies on specific
vendors, systems, or technologies. Instead, the rule facilitates
development of more secure, privacy enhancing, and interoperable mDLs
using technology-agnostic solutions. Accordingly, this rule resists the
risk of true technology lock-in that otherwise may have occurred if
market participants select technologies, developed by first-movers,
that lack the protections necessary for Federal acceptance for official
purposes.

J. Pseudonymous Validation and On-Device Biometric Matching

Comments: An individual urged that it is critical to support
``pseudonymous validation'' under standard ETSI TR 119 476. In
addition, the commenter argued that mDL transactions should support
biometric matching on the mobile device itself to avoid sharing
biometric data. The commenter claimed these recommendations are
necessary to avoid becoming ``an autocratic state.''
TSA Response: ``Pseudonymous validation'' is the concept of using a
pseudonym or alias to identify an

[[Page 85360]]

individual without revealing that person's true identity. Although this
may provide valuable privacy protection in some uses, it also enables
an individual to operate under a consistent--but false--identity. This
is contrary to the REAL ID Act and regulations' purpose of improving
the security of State-issued identity cards.
On-device biometric sharing is the subject of standards ISO/IEC
23220-5 and ISO/IEC 23220-6, which are currently in development. TSA is
not aware of any currently published standards enabling the
establishment of trusted on-device biometric matching in the mDL
ecosystem, which makes it premature to require such functionality in
the final rule.

K. Access to Standards

Comments: A public interest organization contended that the NPRM
failed to provide adequate access to the 19 standards incorporated by
reference in the proposed rule. Specifically, the commenter noted that
under the NPRM, ``the only way'' for the public to gain access was to
email a request to the address specified in the rule. The commenter
noted that it sent multiple emails to this address, but never received
a response. The commenter also noted that the NPRM directed individuals
to visit ``DHS headquarters in Washington DC'' but did not provide a
specific address.
Other public interest organizations asserted that NPRM failed to
provide reasonable access to ISO/IEC 18013-5:2021(E) without a
substantial fee. A commenter noted that the ANSI link providing free
access to the standard was not helpful, and that attempts ``to even
load the standards on a modern computer failed completely.'' Further,
the commenter stated that ANSI required ``an unnecessarily onerous
process,'' which required signing up for an account and completing an
online license agreement form, and that access was on a view-only
basis.
TSA Response: TSA regrets that the commenter's multiple emails
seeking access were not answered. However, TSA notes that the NPRM
specified multiple mechanisms for the public to access the standards,
consistent with IBR requirements specified by the OFR.\76\ All but one
of the 19 standards incorporated by reference in Sec. 37.4 are
available to the public for free download, and the NPRM provided the
website addresses to access each of these documents. In addition, the
NPRM provided detailed information for the publisher of each of these
standards, including most, if not all, of the following: publisher
name, address, phone, email, and website. For the sole standard that is
not publicly available for free, ISO/IEC 18013-5:2021(E), the NPRM
facilitated free access via ANSI, a private organization with whom TSA
has no affiliation. The NPRM specifically noted that ANSI's policy
required individuals to complete an online license agreement form
asking for only name, professional affiliation, and email address. The
NPRM also stated that access would be available on a view-only basis,
and provided publisher information for individuals who sought a greater
level of access. TSA received many comments discussing the 19
standards, demonstrating that the NPRM provided sufficient notice
regarding access to these standards.
---------------------------------------------------------------------------

\76\ See 1 CFR 51.5(a); Office of Federal Register,
Incorporation by Reference Handbook (June 2023, rev'd Aug. 28,
2023), <a href="http://www.archives.gov/federal-register/write/handbook/ibr/">http://www.archives.gov/federal-register/write/handbook/ibr/</a>
(last visited July 17, 2024) [hereinafter ``IBR Handbook''].
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Although the NPRM provided sufficient notice to access the
standards, the final rule modifies access instructions in existing
Sec. 37.4 to clarify and provide additional means for access.
Specifically, the final rule replaces DHS with TSA as a location where
IBR material is available for inspection and provides additional points
of contact at TSA. The final rule also specifies that certain IBR
material is available in the Federal Docket Management System at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, docket number TSA-2023-0002.

L. Standards and Standards Development Generally

Comments: Several commenters sought clarification on how TSA would
update the final rule to reflect evolving industry standards and
government guidelines. Commenters suggested that instead of
incorporating by reference a specific version of a document, the rule
should require compliance with the ``most recent version.'' Some
commenters requested specificity regarding the process and timeframes
given to States to conform to any updated standards.
Other commenters questioned the validity of the standards-
development processes followed by ISO/IEC, AAMVA, and others.
Commenters asserted that these bodies are secretive, unaccountable to
the public, have onerous membership criteria, are influenced by foreign
authoritarian governments, among other deficiencies.
Some commenters asserted that the documents incorporated by
reference in Sec. 37.4 of the proposed rule were insufficient because
they provided only partial requirements to address security and
operational issues. Commenters also criticized some of the references
for their absence of protections to address: emerging threats from
quantum computing, evolving risks from digital identification, outdated
encryption algorithms, and digital wallet design, user experience,
among other deficiencies.
TSA Response: Under applicable legal requirements, Federal agencies
must seek approval from the OFR for a specific version, edition, or
date of a publication that an agency seeks to IBR in a final rule.\77\
Revisions or updates to a publication already IBR'd in a final rule
require re-approval from the OFR, and rules therefore do not update
``dynamically'' to reflect future versions.\78\ Therefore, the rule
cannot exclude publication version or date information, or update
dynamically to reflect future versions. States will be expected to
comply with the standards as published in the final rule. TSA actively
monitors evolving standards and guidelines, and may consider whether to
IBR those publications (pending review of the final documents) through
subsequent rulemaking.
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\77\ See 1 CFR 51.5(b) & 51.9; IBR Handbook, <a href="http://www.archives.gov/federal-register/write/handbook/ibr/">http://www.archives.gov/federal-register/write/handbook/ibr/</a>.
\78\ See IBR Handbook, <a href="http://www.archives.gov/federal-register/write/handbook/ibr/">http://www.archives.gov/federal-register/write/handbook/ibr/</a>.
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Regarding criticisms of standards-development bodies and their
deliberations generally, the standards development process for
international technology standards, particularly those intended to be
interoperable globally, is developed by membership-based bodies
comprised of interested parties representing participants from
international governmental entities, educational organizations,
research groups, non-profit organizations, commercial entities, and the
public at large. Each standards-development organization sets its own
criteria for membership, fees, standards development processes, and
publication structure.
With respect to the criticism that the chosen standards and
guidelines provide insufficient protections and lack future-proofing to
address unknown threats, TSA notes that due to the nature of innovation
and evolving technology, and legal constraints of Federal rulemaking,
it is not possible to develop ``future-proofed'' regulations. TSA
acknowledged in the NPRM that this is a nascent market experiencing
rapid innovation, and that many key standards and guidelines are
currently being developed. Although imperfect, the chosen standards
reflect industry

[[Page 85361]]

state-of-the-art ahead of publication of emerging standards that likely
will support the subsequent Phase 2 rulemaking. TSA made a risk-based
determination that the 19 standards provide the key security, privacy,
and interoperability requirements necessary for trusted Federal
acceptance, and are commensurate with existing REAL ID standards for
physical cards. The two-phased rulemaking approach is intended to
address the near-term need for established security, privacy, and
interoperability requirements, while accommodating the medium-term
evolution of technology and standardization.
With respect to comments regarding specific deficiencies in some of
the chosen standards, TSA offers the following responses. TSA
acknowledges that ISO/IEC 18013-5:2021(E) was developed broadly for
international consumption and does not fully address the needs for REAL
ID use cases in the U.S. The waiver application criteria set forth in
Sec. 37.10(a), therefore, adapt ISO/IEC 18013-5:2021(E) for REAL ID
use cases by supplementing this standard with requirements from other
references as set forth in this rule. For example, Sec. Sec.
37.10(a)(1) and (a)(3) address the provisioning and privacy
requirements not covered by ISO/IEC 18013-5:2021(E). Other issues
relevant to mDL transactions that are not addressed in ISO/IEC 18013-
5:2021(E), such as device user experience and digital wallet design are
beyond the scope of this rule and intentionally omitted.

M. TSA's Identity Verification Policies

Comments: A public interest organization raised questions regarding
TSA's identity verification policies at the screening checkpoint.
TSA Response: This rulemaking is focused on allowing Federal
agencies to accept mDLs for Federal official purposes as defined by the
REAL ID Act. Issues regarding TSA's identify verification processes
unrelated to mDLs are beyond the scope of this rulemaking.:

N. Paperwork Reduction Act

Comments: A public interest organization argued that every mDL
transaction with a Federal agency is a collection of information
subject to the Paperwork Reduction Act (PRA), and that no exemptions
apply. The organization further contended that because neither TSA nor
any other Federal agency has sought approval from the Office of
Management and Budget (OMB) for these collections, any use of mDLs
violates the PRA. Without an approved information collection, the
commenter noted that it is not able to determine the costs or purposes
of this information collection.
TSA Response: TSA disagrees with the commenter's assertion that
every mDL transaction with a Federal agency is a collection of
information subject to the PRA because a request for identify
verification is not the ``soliciting . . . of facts or opinions . . .
calling for . . . answers to identical questions.'' 44 U.S.C. 3502(3)
(defining ``collection of information''); cf. 5 CFR 1320.3(h)(1)
(excepting from the definition information affirmations or
certifications that ``entail no burden other than that necessary to
identify the respondent''). This final rule establishes a process for
States to apply to TSA for a temporary waiver that enables Federal
agencies to accept mDLs issued by those States when REAL ID enforcement
begins on May 7, 2025. This rule does not, however, require any mDL
transactions with a Federal agency or set requirements for the use of
mDL information. Therefore, this comment is beyond the scope of this
rulemaking.

O. Legal Authority

Comments: A public interest organization questioned the legality of
DHS's delegation of authority to TSA to administer the REAL ID program
because the public was deprived of an opportunity to comment on it. The
commenter further argued that it is improper for TSA, a transportation-
focused agency, to regulate use of mDLs by other Federal agencies for
non-transportation uses.
Other public interest organizations posited that neither the REAL
ID Act, nor subsequent amendments in the REAL ID Modernization Act,
authorize issuance of the waiver as set forth in the NPRM. The
commenters argued that DHS is statutorily authorized only to prescribe
standards, certify State compliance, and extend time to facilitate
compliance, and the implementing regulations prevent DHS from waiving
any mandatory minimum standards.
TSA Response: Generally, Federal agencies' delegations of duties
and authority are exempt from notice-and-comment requirements of the
Administrative Procedure Act because they are matters of ``agency
management'' and ``rules of agency organization, procedure or
practice.'' \79\ Matters involving internal agency organization,
procedure, practice, and delegations of duties and authority are
directed primarily towards improving the efficiency and effectiveness
of agency operations, and therefore are not required to be posted for
public comment. DHS's delegation of authority to TSA to administer the
REAL ID program falls within this exemption, obviating the need for
public comment.
---------------------------------------------------------------------------

\79\ 5 U.S.C. 553(a)(2), (b)(A).
---------------------------------------------------------------------------

TSA further clarifies that the REAL ID Act, as amended, authorizes
the Secretary to promulgate regulations to implement the requirements
under the REAL ID Act.\80\ And the REAL ID Modernization Act amended
the definitions of ``driver's license'' and ``identification card'' to
specifically include mDLs that have been issued in accordance with
regulations prescribed by the Secretary of Homeland Security.\81\ TSA
is adopting the waiver process established in this final rule pursuant
to its authority to implement the requirements of the REAL ID Act as
amended, and the final rule is consistent with all statutory
requirements.'' The waiver application criteria specify issuance-
related security and privacy requirements that are commensurate with
requirements for physical cards. The final rule further provides that
these are temporary requirements that will be superseded by a
subsequent rulemaking setting forth more comprehensive requirements
after emerging industry standards are published over the next few
years.
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\80\ Sec. 205 of the REAL ID Act.
\81\ Sec. 1001 of the REAL ID Modernization Act, 134 Stat. 2304.
---------------------------------------------------------------------------

P. Economic Impact Analysis

1. Alternatives
Comments: Several commenters, including a State, associations, and
an individual, commented on various aspects of the assessment regarding
the costs and benefits of available regulatory alternatives.\82\ Some
commenters recommended that TSA should accept Alternatives 1, 3, or 4
compared to the proposed rule. The commenter recommending acceptance of
Alternative 1 stated the proposed rule does not address the market
failures associated with a lack of common standards, such as increased
complexity of mDL use across States, and may result in larger costs in
the long run when formal mDL standards are finalized. The commenter
supporting Alternative 3 recommended that TSA promulgate comprehensive
mDL regulations that enable States to develop and issue REAL ID-
compliant mDLs, as well as a process for Federal agencies to accept
them. The commenter recommending acceptance of Alternative 4 stated it
would eliminate the time and expense required to

[[Page 85362]]

prepare and submit a waiver application and audit report, and another
commenter sought clarification on how the scope of Alternative 4
differs from the proposed rule.
---------------------------------------------------------------------------

\82\ See NPRM, 88 FR at 60079-80.
---------------------------------------------------------------------------

TSA Response: Regarding Alternative 1, TSA reiterates that this
rule establishes requirements for States to issue mDLs that provide
specified levels of security, privacy, and interoperability, which
provides guidance and direction for State mDL issuance systems and
reduces the complexity of mDL use across different jurisdictions. The
mDL waiver application criteria would likely form the foundation of the
more comprehensive requirements in the Phase 2 rulemaking. While States
may have to incur cost to alter their mDL programs when more
comprehensive requirements are issued, they are less likely to have to
make significant changes and incur larger costs under this rule than
under Alternative 1.
The final rule provides benefits to States and mDL users. The
waiver process will allow the continued use of mDLs for official
purposes when REAL ID enforcement begins on May 7, 2025. An mDL is more
secure than a physical card, affords users privacy controls over the
information transmitted to the relying party, and enables contact-free
transactions. TSA does not believe the waiver process delays
development of industry standards and Federal guidelines. Many such
standards and guidelines are in development that would inform
requirements in the Phase 2 rulemaking, and this final rule will
facilitate, not impede, this process. For these reasons, TSA recommends
the final rule over Alternative 1.
Regarding Alternative 3, TSA believes it is premature to promulgate
comprehensive mDL regulations, given that several important industry
standards and Federal guidelines are in development and would likely
inform future requirements in the Phase 2 rulemaking, such as
requirements related to mDL provisioning. Until the subsequent
rulemaking is published, this final rule sets requirements based on
current, available industry standards and guidelines that serve as a
basis for, and bridge towards, more comprehensive requirements.
Alternative 4 would establish interim minimum requirements, similar
to the waiver application criteria, for States to issue REAL ID
compliant mDLs instead of a wavier process that enables Federal
agencies to accept mDLs from States that meet the waiver criteria. TSA
clarifies that Alternative 4 would largely convert the waiver
application criteria to requirements for the issuance of REAL ID-
compliant mDLs. If States could meet those requirements, under
Alternative 4, States' mDLs would be deemed REAL ID compliant. In
contrast, the final rule, through the waiver process, enables Federal
agencies to accept for official purposes States' mDLs that meet the
waiver criteria.
As discussed further in Part VI.A.4., below, TSA rejects this
alternative because it effectively would codify standards that may
become obsolete in the near future, thereby implying a degree of
certainty that TSA believes is premature given emerging standards that
are still in development. Although Alternative 4 eliminates the waiver
process, TSA would continue to require a mechanism to validate that a
State's mDLs complies with the established standards under Alternative
4. Thus, States would still need to provide information to TSA similar
to the waiver process, including audit reports, to demonstrate
compliance with the requirements. TSA believes the time and expense to
provide such information under Alternative 4 would be similar to the
waiver process under the final rule, and a waiver process provides more
flexibility and allows States and TSA to gain insight and experience in
the mDL environment.
2. Familiarization and Training Costs
Comments: A vendor recommended inclusion in Table 2 of the NPRM
(Total Costs of the Rule to States) of States' Familiarization Cost in
years 2-5 to reflect evolving standards, and a similar inclusion in
Table 3 (Total Cost of the Rule to DHS) for DHS, but did not provide
any cost estimates.\83\ The vendor further recommended inclusion of
States' training or continuing education costs in Table 2, which the
vendor believes should be similar to DHS's training costs set forth in
Table 3 ($5 million over 10 years). The commenter also requested
clarification of the definition of training costs in Table 3, and
whether it includes State training related to certificate systems and
record maintenance.
---------------------------------------------------------------------------

\83\ See NPRM, 88 FR at 60074-76.
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An association posited that the economic analysis did not address
TSA's costs, training requirements, and process changes to adapt to an
mDL system.
TSA Response: TSA does not believe a State's familiarization or
training cost estimates require modification. The familiarization cost
estimate represents the cost and time burden for States to review the
final rule. All State driver's licensing agencies would incur this cost
in the first year after the publication of the rule. Although
familiarization costs do not include time spent reviewing new
standards, the NPRM does discuss, qualitatively, potential State costs
to monitor and study mDL technology as it evolves including standards
development and other relevant factors. TSA did not receive any cost
estimates related to reviewing new standards.
The training costs in Table 3 relate to costs TSA would incur to
train Transportation Security Officers (TSOs) to verify mDLs for
identification purposes at airport security checkpoints. As such,
States would not incur similar costs of roughly $5 million for such
training. TSA is unclear as to the type of or specific training or
continuing education the commenter refers and what may be needed in the
future. However, for clarification, any such training and
certifications have been added to the qualitative discussion of
potential additional State costs (section 3.1.5 of the RIA).
TSA believes the costs related to training and process changes to
adapt to an mDL system are accounted for and quantified where
available. TSA quantifies the costs for TSOs to undertake training to
verify mDLs for identification purposes at the security checkpoint, and
for additional clarity, TSA has also added the cost to TSA to provide
such training for TSOs. TSA also quantifies the costs related to the
equipment that must be acquired to integrate the use of mDLs for
identity verification in section 2.6 of the RIA. In addition, TSA added
a qualitative discussion in the economic analysis (section 3.2.5)
regarding costs TSA may incur related to process changes to adapt to an
mDL system, such as changes to standard operating procedures and
informational campaigns.
3. Estimated Time To Complete Waiver Applications; Estimated Costs for
mDL Readers
Comments: An industry vendor recommended increasing the estimated
time to complete waiver applications from 20 hours, as set forth in the
NPRM, to 80 hours, and increasing the estimated cost for mDL readers by
35 percent, for both DHS and other Relying Parties.
TSA Response: TSA clarifies that the total time burden to complete
a waiver application does not require modification because the estimate
includes two components: (1) the time to complete the application and
provide the information required under Sec. 37.10(a), and (2) the time
to gather all supporting documentation. TSA estimates completing the
application

[[Page 85363]]

will require an average of 20 hours. Separately, the time burden
estimate for gathering supporting documentation can range from 40 to
120 hours. TSA estimates States with existing mDL solutions (15 States)
will require a total of 40 hours, while States considering mDLs but
lacking mDL solutions (25 States) will require a total 120 hours for
their initial waiver application submission. Thus, TSA estimates an
average time burden of 110 hours to complete a waiver application, by
adding the time to complete application materials (20 hours) and a
weighted average time to gather supporting documentation (90
hours).\84\ TSA also estimates States will incur an average time burden
of 47.5 hours to complete a waiver resubmission, which is separate from
the initial waiver application. See Section 2.4 of the Regulatory
Impact Analysis (RIA) for additional details.
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\84\ Weighted average time to gathering supporting documentation
of 90 hours = ((15 States x 40 hours) + (25 States x 120 hours)) /
(15 States + 25 States).
---------------------------------------------------------------------------

The cost of mDL readers is uncertain given evolving technology, and
could vary up or down by 35 percent compared to TSA's current estimate.
For example, within TSA specifically, TSA may integrate mDL readers in
existing infrastructure, and TSA's costs are different than other
relying parties (other Federal agencies that choose to accept mDLs for
official purposes). For TSA mDL reader costs, TSA structures its
estimate around internal data on actual procurement to quantify the
cost of its mDL reader equipment, which also includes the cost of
quarterly updates. Given the uncertainty of mDL reader costs, the final
rule expands the range of possible reader costs for relying parties up
and down by the comment suggested 35 percent of the TSA internal
estimate which results in a range of about $260 to $540 with a midpoint
of $400. While TSA does not change its primary estimate based on the
estimated cost of a smartphone which is assumed to be used in
combination with an application to serve as the mDL reader, it does
recognize that such costs could range from $2.1 million to $4.4 million
over 10 years.\85\
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\85\ DHS multiplies the total number of mDL readers relying
parties will procure over 10 years of 8,174.9 (Table 2-11: Relying
Party mDL Reader Procurement in the Final Regulatory Impact
Analysis) by a low mDL reader cost of $261.30 and high mDL reader
cost of $542.70.
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4. Cost-Benefit Analysis Generally
Com

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.