Rule2025-00484
Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes; Phased Approach for Card-Based Enforcement
Primary source
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Published
January 14, 2025
Effective
January 14, 2025
Issuing agencies
Homeland Security DepartmentTransportation Security Administration
Abstract
This rule ensures that Federal agencies have appropriate flexibility to implement the card-based enforcement provisions of the REAL ID regulations after the May 7, 2025, enforcement deadline by explicitly permitting agencies to implement these provisions in phases. Under this rule, agencies may implement the card-based enforcement provisions through a phased enforcement plan if they determine it is appropriate upon consideration of relevant factors including security, operational feasibility, and public impact. The rule also requires agencies to coordinate their plans with DHS, make the plans publicly available, and achieve full enforcement by May 5, 2027.
Full Text
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[Federal Register Volume 90, Number 8 (Tuesday, January 14, 2025)]
[Rules and Regulations]
[Pages 3472-3503]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00484]
[[Page 3471]]
Vol. 90
Tuesday,
No. 8
January 14, 2025
Part V
Department of Homeland Security
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Transportation Security Administration
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6 CFR Part 37
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Phased Approach
for Card-Based Enforcement; Final Rule
Federal Register / Vol. 90 , No. 8 / Tuesday, January 14, 2025 /
Rules and Regulations
[[Page 3472]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
6 CFR Part 37
[Docket No. TSA-2023-0003]
RIN 1652-AA77
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes; Phased Approach
for Card-Based Enforcement
AGENCY: Transportation Security Administration (TSA), Department of
Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: This rule ensures that Federal agencies have appropriate
flexibility to implement the card-based enforcement provisions of the
REAL ID regulations after the May 7, 2025, enforcement deadline by
explicitly permitting agencies to implement these provisions in phases.
Under this rule, agencies may implement the card-based enforcement
provisions through a phased enforcement plan if they determine it is
appropriate upon consideration of relevant factors including security,
operational feasibility, and public impact. The rule also requires
agencies to coordinate their plans with DHS, make the plans publicly
available, and achieve full enforcement by May 5, 2027.
DATES: Effective January 14, 2025.
FOR FURTHER INFORMATION CONTACT: George Petersen, REAL ID Program,
Enrollment Services and Vetting Programs, Transportation Security
Administration, 6595 Springfield Center Drive, Springfield, VA 20598;
telephone: (571) 227-2215; email: <a href="/cdn-cgi/l/email-protection#3c5b59534e5b59124c5948594e4f59527c484f5d1258544f125b534a"><span class="__cf_email__" data-cfemail="d1b6b4bea3b6b4ffa1b4a5b4a3a2b4bf91a5a2b0ffb5b9a2ffb6bea7">[email protected]</span></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 ``General'' in
the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the
docket number of this rulemaking.
Abbreviations and Terms Used in This Document
APA--Administrative Procedure Act
DHS--Department of Homeland Security
DL/IDs--Driver's Licenses and Identification Cards
DMV--Departments of Motor Vehicles
EDL--Enhanced Driver's Licenses
NPRM--Notice of Proposed Rulemaking
TSA--Transportation Security Administration
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
C. Costs and Benefits
II. Background
A. Statutory and Regulatory History
B. Phased Enforcement Rulemaking
C. Broad DHS Approach
III. General Discussion of the Rulemaking
A. Rulemaking Objectives
B. Summary of Regulatory Provisions
C. Maintaining the May 7, 2025, Card-Based Enforcement Deadline
D. Phased Enforcement Guidance
IV. Discussion of Comments
A. General Opposition to REAL ID
B. Legal Authority
C. General Support for the Rulemaking
D. Immediate Transition to Full Enforcement
E. Extension of the Card-Based Enforcement Deadline
F. Confusion Associated With Phased Enforcement Generally
G. Public Availability of Agencies' Phased Enforcement Plans
H. Length of Phased Enforcement Period
I. Relevant Factors and Resources for Development and Approval
of Phased Enforcement Determinations by Federal Agencies
J. Phased Enforcement Implementation Concerns
K. Alternative Approaches to Phased Enforcement
L. Costs of the Rule
V. Statutory and Regulatory Analyses
A. Administrative Procedure Act
B. Paperwork Reduction Act
C. Economic Impact Analysis
D. Executive Order 13132 (Federalism)
E. Executive Order 13175 (Tribal Consultation)
F. Environmental Analysis
G. Energy Impact Analysis
H. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
I. Executive Summary
A. Purpose of the Regulatory Action
Secure driver's licenses and identification documents are a vital
component of our national security framework. The REAL ID Act,\1\
passed by Congress in 2005, enacted the 9/11 Commission's
recommendation that the Federal Government ``set standards for the
issuance of . . . sources of identification, such as drivers
licenses.'' \2\ The REAL ID Act and its implementing regulations set
minimum security standards for State-issued driver's licenses and
identification cards (DL/IDs), which are designed to improve the
security and reliability of those documents. These requirements allow
Federal agencies that accept State-issued DL/IDs for official purposes
to determine with greater accuracy whether individuals presenting a DL/
ID are who they say they are.
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\1\ Public Law 109-13, 119 Stat. 231, 302 (May 11, 2005)
(codified at 49 U.S.C. 30301 note).
\2\ The 9/11 Commission Report, Final Report of the National
Commission on Terrorist Attacks upon the United States (July 2004)
(9/11 Commission Report), p. 390, available at <a href="https://www.govinfo.gov/app/details/GPO-911REPORT">https://www.govinfo.gov/app/details/GPO-911REPORT</a> (last visited April 16,
2024).
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Pursuant to the REAL ID regulations, REAL ID card-based enforcement
begins on May 7, 2025. Card-based enforcement means that Federal
agencies may only accept DL/IDs for official purposes, defined in the
REAL ID Act and regulation, if the DL/IDs are issued in accordance with
REAL ID requirements.\3\ In order to fully realize the enhanced
security provided by the REAL ID requirements, DHS is committed to
beginning card-based enforcement on May 7, 2025. However, as of January
2024, only approximately 56 percent of DL/IDs in circulation nationally
are REAL ID-compliant.\4\ In 34 States,\5\ less than 60 percent of DL/
IDs in circulation are REAL ID-compliant, and, of those, in 22 States
less than 40 percent are REAL ID-compliant.\6\ Further, because of a
history of REAL ID deadlines being extended, DHS believes that the
public may continue to expect that additional extensions are likely and
not feel urgency to obtain a REAL ID-compliant card. DHS believes this
lack of urgency is likely to delay increased adoption in many States
despite best efforts to inform the public, potentially leading to
[[Page 3473]]
last-minute surges in demand for REAL ID-compliant IDs leading up to
the deadline.
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\3\ 6 CFR 37.5(b).
\4\ Based on REAL ID issuance data, as of January 2024,
voluntarily submitted monthly to DHS by the compliant states. While
REAL ID issuance data through October 2024 is available, based on
the most recent data, DHS expects the percentage of REAL IDs by the
card-based enforcement date to be on par with the forecasts
presented in the NPRM. As a result, the regulatory analyses (section
V(b)(2)(d) Adoption of REAL ID-Compliant DL/IDs) maintains the
values used in the NPRM which DHS published in September 2024.
\5\ DHS uses ``states'' and ``licensing jurisdictions''
interchangeably throughout this document to refer collectively to
the 56 different U.S. jurisdictions that issue DL/IDs that are
governed by the REAL ID regulations. These jurisdictions are the 50
states, the District of Columbia, and the territories of Puerto
Rico, U.S. Virgin Islands, Guam, the Commonwealth of the Northern
Mariana Islands, and American Samoa. 6 CFR 37.3.
\6\ See supra note 4.
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DHS believes this surge could overwhelm some States with low levels
of adoption and result in backlogs and delays in REAL ID issuance. In
light of this, DHS anticipates that a significant number of individuals
seeking to use their DL/ID for a REAL ID official purpose on and after
May 7, 2025, may not have a compliant DL/ID. DHS recognizes that this
could result in a situation where individuals are unable to present a
compliant DL/ID to access a Federal facility, board a federally
regulated commercial aircraft, or enter a nuclear power plant on a
large scale. For some agencies, this scenario may raise serious
concerns related to security, agency operations, and potential impact
to the public. While these concerns are especially acute in an airport
security environment, DHS anticipates that other Federal agencies that
operate facilities visited frequently by the general public \7\ may
also face similar concerns. This rule recognizes these concerns and
provides flexibility by permitting agencies to, for a period of up to 2
years, implement REAL ID card-based enforcement using a phased approach
tailored to their specific operations.
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\7\ The requirements of the REAL ID Act and regulation apply
only in contexts where individuals are required to present an
identification document to Federal agencies for official purposes.
Accessing a Federal facility that is normally open to the public and
does not require visitors to establish their identity to enter is
generally not an official purpose under the REAL ID Act and
regulation. See REAL ID Act of 2005 Implementation: An Interagency
Security Committee Guide (2019), p. 4-7, available at <a href="https://www.cisa.gov/resources-tools/resources/isc-guide-real-id-act-2005-implementation">https://www.cisa.gov/resources-tools/resources/isc-guide-real-id-act-2005-implementation</a> (last visited October 3, 2024).
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DHS believes that this approach will be more effective at achieving
full enforcement than further extensions of the enforcement deadline.
This rule demonstrates that the Government is preparing for and
planning to begin enforcement on May 7, 2025, and provides an
opportunity for States and the public to prepare for full enforcement.
After May 7, 2025, when agencies begin full enforcement or implement a
phased enforcement plan, as appropriate, the public will be further
incentivized to obtain a REAL ID as they realize and anticipate
consequences for presenting a non-compliant DL/ID. At the same time,
the rule is intended to allow a transition to full enforcement that
mitigates the potential negative impact to agencies and the public if
every agency was required to begin full enforcement immediately on the
card-based enforcement date. Given the current percentage of REAL ID-
compliant DL/IDs that have been issued (as a percentage of all DL/IDs),
the challenges many States are experiencing as they seek to increase
adoption of compliant DL/IDs, and the resulting concerns Federal
agencies may have, the rule provides important flexibility to agencies
to ensure a smooth transition to card-based enforcement. The rule
balances the increased security benefits of beginning card-based
enforcement with an understanding of the significant risks that some
Federal agencies may experience as a result of an immediate transition
to full enforcement.\8\
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\8\ ``Full enforcement'' or ``full card-based enforcement''
means that an agency will not accept noncompliant DL/IDs for REAL ID
official purposes.
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B. Summary of the Major Provisions of the Regulatory Action
Under the REAL ID regulations, Federal agencies may not accept non-
compliant DL/IDs for REAL ID official purposes on and after the card-
based enforcement of May 7, 2025. Under this rule, Federal agencies are
still required to commence REAL ID card-based enforcement on May 7,
2025. However, this rule provides agencies, for a period of up to 2
years, the flexibility to implement a phased approach to card-based
enforcement, after considering relevant factors including security,
operational feasibility, and impact to the public. The rule provides an
enforcement approach that allows agencies to maximize security gains in
contexts where a swift transition to full enforcement poses little
risk, while minimizing the risks in contexts where large numbers of
individuals seeking to use noncompliant DL/IDs raises serious concerns.
To ensure that agencies' phased enforcement plans consistently and
appropriately advance the objectives of the REAL ID regulations, this
rule requires agencies to coordinate their phased enforcement plans
with DHS and begin full enforcement no later than May 5, 2027. To
ensure transparency and public visibility, the rule requires agencies
that use a phased enforcement plan to make their plan publicly
available on their web page and require DHS to make publicly available
a list of agencies that have coordinated phased enforcement plans with
DHS. Finally, the rule's preamble provides guidance to Federal agencies
on types of phased enforcement plans that agencies may consider.
C. Costs and Benefits
As described in the notice of proposed rulemaking (NPRM) (89 FR
74137, September 12, 2024) and discussed below, DHS estimates the cost
of the rule, over 2 years, is $1.73 million undiscounted and $1.70
million discounted at 2 percent. DHS, as the agency administering the
REAL ID program, and other Federal agencies will largely bear the cost
of the rule related to facilitating phased enforcement while benefits
include flexibility to Federal agencies that may reduce operational
disruptions as well as to States and individuals associated with
additional time to obtain and process REAL IDs.
Specifically, DHS will incur costs to coordinate with Federal
agencies on their phased enforcement plans and provide guidance on
phased enforcement. DHS estimates the 2-year cost to DHS is $0.033
million undiscounted and $0.031 million discounted at 2 percent.
Federal agencies will incur costs to familiarize themselves with the
rule, assess whether to implement a phased enforcement plan, and if so,
develop a plan. DHS estimates the 2-year cost to Federal agencies is
$1.70 million undiscounted and $1.67 million discounted at 2 percent.
DHS also identifies other non-quantified costs that affected
parties may incur. A portion of the benefits associated with the REAL
ID rule will be delayed as a result of agencies implementing a phased
approach, with the full security benefit not realized until full
enforcement occurs. Federal agencies will also incur costs related to
phased enforcement plan implementation which may include training
personnel on the policies of the plan and efforts to inform the public
of the new identity verification policies related to plans. Individuals
may also incur costs to become aware of phased enforcement plans and
respond accordingly.
DHS identifies various non-quantified benefits associated with the
final rule. Federal agencies will have flexibility to enforce the REAL
ID card-based regulations in a phased manner that may reduce security
vulnerabilities, operational disruption and public impact but will not
unnecessarily delay REAL ID enforcement for those Federal agencies
ready to fully implement on the card-based enforcement deadline. A
phased approach will also allow individuals more time to obtain a REAL
ID-compliant DL/ID, reduce potential queuing and associated delays at
access points, and may help mitigate potential application backlogs at
State licensing agencies.
[[Page 3474]]
II. Background
A. Statutory and Regulatory History
The REAL ID Act sets minimum security requirements for the issuance
and production of DL/IDs issued by the States, territories, and the
District of Columbia in order for Federal agencies to accept these
documents for official purposes.\9\ Official purposes include: (1)
accessing Federal facilities, (2) boarding federally regulated
commercial aircraft, (3) entering nuclear power plants, and (4) any
other purposes that the Secretary of Homeland Security shall
determine.\10\
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\9\ Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13,
Div. B. title II, sections 201 to 207, May 11, 2005, as amended
(codified at 49 U.S.C. 30301 note).
\10\ Id. at section 201.
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On January 29, 2008, DHS published a final rule implementing the
REAL ID Act's requirements (2008 Final Rule).\11\ The regulations
include both a deadline for State compliance with the REAL ID
requirements and a separate deadline after which individuals must
present a REAL ID-compliant license or identification card in order for
Federal agencies to accept the document for official purposes.\12\ DHS
refers to these deadlines as ``state-based'' and ``card-based''
enforcement, respectively. Under the REAL ID regulations, card-based
enforcement begins on May 7, 2025.\13\ On and after this date, Federal
agencies may not accept for official purposes a DL/ID issued by a State
unless that DL/ID was issued in accordance with the REAL ID standards
by a REAL ID-compliant jurisdiction.\14\
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\11\ See 73 FR 5272 (Jan. 29, 2008) (codified as amended at 6
CFR part 37).
\12\ 6 CFR 37.51(a) and 37.5.
\13\ 6 CFR 37.5(b); 88 FR 14473 (Mar. 9, 2023) (extending the
REAL card-based enforcement deadline from May 3, 2023, to May 7,
2025). Additional background related to extensions of card-based
deadline as a result of the COVID-19 pandemic is provided in the
Notice of Proposed Rulemaking. 89 FR 74137.
\14\ Under the REAL ID Act and regulations, States may also
issue noncompliant licenses and identification cards, which will not
be acceptable by Federal agencies for official purposes after the
card-based deadline. 6 CFR 37.71; REAL ID Act sec. 202(d)(11). The
REAL ID regulations authorize, but do not require, Federal agencies
to accept these noncompliant cards until card-based enforcement
begins. 6 CFR 37.5(c).
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B. Phased Enforcement Rulemaking
Based on REAL ID data compiled by compliant licensing
jurisdictions, as of January 2024, DHS estimates that compliant States,
territories, and the District of Columbia have issued approximately 162
million REAL ID-compliant DL/IDs, which represents approximately 56
percent of the population possessing a State-issued DL/ID.\15\ Data
from the States also indicates that the States have approximately 110
million noncompliant marked DL/IDs and approximately 14 million legacy
licenses without any markings (issued before a State's REAL ID
compliance determination) still in circulation.\16\ Further, the
national adoption rate as of January 2024, stands at approximately 0.56
percent per month. As detailed in the regulatory analyses (section
IV(b)(2)(e) Adoption of REAL ID-Compliant DL/IDs) DHS estimates that
only about 61.2 percent of DL/IDs in circulation will be REAL ID-
compliant by the card-based enforcement deadline of May 7, 2025.\17\
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\15\ DHS began to collect data voluntarily submitted by
licensing jurisdictions including the total number of DL/IDs, number
of REAL IDs, number of non-compliant cards, and number of ``legacy''
cards in July 2019. Beginning in October 2019, DHS began to receive
the data on a monthly basis. While REAL ID issuance data through
October 2024 is available, based on the most recent data, DHS
expects the percentage of REAL IDs by the card-based enforcement
date to be on par with the forecasts presented in the NPRM. As a
result, the regulatory analyses (section V(b)(2)(d) Adoption of REAL
ID-Compliant DL/IDs) maintains the values used in the NPRM which DHS
published in September 2024.
\16\ Additional background regarding DHS' efforts to support
implementation of the REAL ID Act and factors impacting the pace of
REAL ID adoption, including the effect of the COVID-19 pandemic, is
provided in the Notice of Proposed Rulemaking. 89 FR 74137.
\17\ Over the twelve months between January 2023 and January
2024, the national compounded monthly growth rate for the adoption
of REAL IDs was 0.56 percent. DHS applied the 0.56 compounded growth
rate over the 16 months between January 2024 and May 2025 to
forecast the percentage of REAL IDs in circulation by May 2025,
relative to all DL/IDs in circulation.
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Even taking these estimates into account, DHS believes that
beginning card-based enforcement on May 7, 2025, is the most effective
path to achieve full implementation of the REAL ID Act and regulations.
The requirements of the REAL ID Act and regulations provide significant
security benefits by improving the accuracy of identity verification
processes.\18\ Beginning card-based enforcement will mark an important
step towards full realization of these increased security standards.
However, DHS recognizes that for some agencies, an immediate transition
to full enforcement may not be appropriate. On September 12, 2024, DHS
published an NPRM that proposed explicitly permitting agencies to
implement card-based enforcement in phases if an agency determines that
a phased approach is appropriate after considering relevant
factors.\19\
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\18\ See 73 FR 5325-5326, and accompanying Regulatory
Evaluation, Department of Homeland Security, January 17, 2008,
Regulatory Evaluation, Docket Number DHS-2006-0030; 9 H.R. Rep. No.
109-72, 176-185 (2005) available at <a href="https://www.congress.gov/109/crpt/hrpt72/CRPT-109hrpt72.pdf">https://www.congress.gov/109/crpt/hrpt72/CRPT-109hrpt72.pdf</a> (last visited June 17, 2024).
\19\ 89 FR 74137.
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C. Broad DHS Approach
This rulemaking represents one aspect of DHS' broad approach
towards transitioning to enforcement of the REAL ID requirements on May
7, 2025. Although this rule is critical to providing agencies with the
necessary flexibility to ensure a smooth transition to full card-based
enforcement, DHS is also engaged in a number of efforts to improve
adoption rates. This layered approach includes heavy engagement with
States that have low REAL ID adoption rates, a public advertising
campaign raising awareness of upcoming REAL ID enforcement and the
benefits of obtaining a REAL ID,\20\ and communication with the travel
industry. This rule, in combination with these other efforts, lays the
necessary foundation for transitioning the nation to enforcement of
REAL ID requirements on May 7, 2025.
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\20\ DHS Launches ``Be Your REAL ID Self[hairsp]'' Public
Awareness Campaign, January 15, 2021, <a href="https://www.dhs.gov/real-id/news/2021/01/15/dhs-launches-be-your-real-id-self-public-awareness-campaign">https://www.dhs.gov/real-id/news/2021/01/15/dhs-launches-be-your-real-id-self-public-awareness-campaign</a>.
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III. General Discussion of the Rulemaking
A. Rulemaking Objectives
DHS is issuing this rule in recognition that without a significant
increase in the adoption rate leading up to the May 7, 2025, deadline,
millions of noncompliant cards will still be in circulation on that
date. Even assuming a substantial increase in the adoption rate, it is
difficult to predict the number of people who will seek to use
noncompliant DL/IDs for Federal official purposes when enforcement
begins on May 7, 2025. Further, the population-wide adoption rate
likely will differ from the adoption rate of specific populations who
will need to present a REAL ID for official purposes including boarding
federally regulated commercial aircraft or entering a Federal facility.
The adoption rate also is likely to differ across geographic areas with
certain regions having relatively higher or lower concentrations of
individuals without a REAL ID-compliant DL/ID.
This rulemaking acknowledges the possible risks to Federal agencies
and potential public impact should a significant number of individuals
seek to use non-REAL ID-compliant DL/IDs for REAL ID official purposes
when enforcement begins on May 7, 2025. In
[[Page 3475]]
some cases, a sudden transition to full enforcement may impact how
agencies provide certain services or conduct business with the public.
If many individuals seek to use noncompliant DL/IDs at the same
location, this could result in significant backlogs at access points to
Federal facilities and TSA security checkpoints. In the example of TSA,
if large numbers of individuals arrived at an airport security
checkpoint with noncompliant DL/IDs,\21\ they will not be able use that
DL/ID to proceed through screening, potentially resulting in missed
flights. Additionally, long lines, confusion, and frustrated travelers
at the checkpoint may greatly increase security risks both to
passengers and TSA personnel by drawing the resources and attention of
TSA personnel away from other passengers, including those known to pose
an elevated risk. DHS anticipates that other Federal agencies may also
experience a negative impact if they begin full enforcement on May 7,
2025.
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\21\ Although a segment of the population may not possess a REAL
ID, they may have other forms of identification acceptable for
official purposes (e.g., a U.S. passport, U.S. passport card, or
military identification). TSA's acceptable ID list is available at
<a href="https://www.tsa.gov/travel/security-screening/identification">https://www.tsa.gov/travel/security-screening/identification</a>. Other
Federal agencies may also accept identification in addition to REAL
ID-compliant DL/IDs. Individuals who need to visit a Federal
facility should check in advance whether the agency requires
identification for access purposes and, if they do, review the
agency's access control policies.
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Given that approximately 56 percent of DL/IDs in circulation are
REAL ID-compliant as of January 2024, the low current adoption rates,
and DHS' estimate that 61.2 percent of REAL IDs, relative to all DL/IDs
in circulation, will be REAL ID-compliant by May 7, 2025, there is a
real possibility of disruptions like those described above could occur
if all agencies begin full enforcement on the deadline.\22\
Additionally, even if population-wide adoption rates are significantly
higher than they are currently, these outcomes may nonetheless unfold
if adoption rates remain low in specific States or amongst specific
groups of individuals. Operational disruptions could still occur at
locations in areas that have a high concentration of individuals
without REAL ID-compliant DL/IDs or during times of the year when large
numbers of people who do not fly frequently, and who may not possess a
REAL ID-compliant DL/ID seek to travel. DHS anticipates that other
agencies that operate facilities nationwide or experience substantial
shifts in the number of individuals presenting identification for
official purposes throughout the year may have similar concerns about
the possibility of disruption based on the current trend in REAL ID
adoption rates.
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\22\ Supra note 15.
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Recognizing these challenges and the uncertainty in the number of
individuals Federal agencies may encounter who do not have a REAL ID-
compliant DL/ID on May 7, 2025, this rule provides Federal agencies
added flexibility to implement enforcement of the REAL ID regulations
in a manner that takes into account relevant factors including
security, operational feasibility, and public impact. The ability to
implement the card-based requirements under a phased approach, for a 2-
year period, allows Federal agencies to start card-based enforcement in
a manner that limits potential disruption to operations, reduces
negative public impact, and supports a smooth transition to full card-
based enforcement and the increased security benefits of REAL ID. For
example, agencies will have the ability to begin enforcement by issuing
warning notices or through progressive consequences if they determine
that those measures would most effectively mitigate the risks of an
immediate transition to full enforcement. Without this flexibility, and
especially if the adoption rate remains low leading up to May 7, 2025,
DHS believes Federal agencies could face a serious risk of operational
disruption, negative public impact, and potential security
vulnerabilities.
Further, implementation of card-based enforcement through a phased
approach is consistent with DHS' approach to State-based
enforcement.\23\ DHS' approach to State-based enforcement demonstrated
that phased enforcement can be effective in achieving compliance with
REAL ID requirements. This rule provides Federal agencies the
flexibility to determine whether a phased plan to implement the REAL ID
card-based enforcement requirements beginning on May 7, 2025, is
appropriate in particular circumstances. This flexibility allows
agencies to begin card-based enforcement as part of a measured,
responsible, and achievable plan leading to full enforcement of the
REAL ID regulations.
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\23\ Beginning in January 2013, DHS incrementally enforced the
State-based regulatory deadline prohibiting agencies from accepting
licenses and cards issued by States that were not compliant with the
REAL ID standards. State-based enforcement concluded with the final
phase, boarding federally regulated commercial aircraft, going into
effect in 2018. DHS Releases Phased Enforcement Schedule for REAL ID
(Dec. 20, 2013), available at <a href="https://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id">https://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id</a>.
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Providing agencies the flexibility to begin enforcement using a
phased approach may also facilitate increased adoption of REAL ID-
compliant DL/IDs. DHS anticipates that agencies announcing concrete
plans for beginning enforcement on May 7, 2025, will demonstrate that
the deadline is not being extended and will likely incentivize
individuals to obtain a REAL ID-compliant DL/ID. An agency's specific
enforcement phase may also encourage increased adoption. For example,
agencies may choose to issue a written or verbal warning the first time
an individual attempts to use their non-compliant DL/ID after the May
7, 2025, enforcement deadline, letting that individual know they will
be denied entry if they attempt to use their non-compliant card at that
location another time. Individualized warnings like this may be more
effective at encouraging compliance than broad public messaging.
Finally, increased demand leading up to and after the deadline may
outpace the ability of licensing jurisdictions to meet that demand.
During DHS' engagement with States in preparation for the beginning of
card-based enforcement, some States have expressed concern with ability
to meet potential demand.\24\ Allowing agencies to use a phased
approach may also provide licensing jurisdictions the opportunity to
make adjustments to alleviate potential backlogs.
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\24\ For example, Oregon has recently approved an increase in
DMV staff dedicated to issuing REAL ID-compliant DL/IDs in
anticipation of the May 7, 2025, deadline. Oregon Department of
Transportation (ODOT), ODOT Operational Report to the Oregon
Transportation Commission (March 5, 2024), available at <a href="https://www.oregon.gov/odot/Get-Involved/OTCSupportMaterials/Agenda_F_Operational_Report_PACKET.pdf">https://www.oregon.gov/odot/Get-Involved/OTCSupportMaterials/Agenda_F_Operational_Report_PACKET.pdf</a> (last visited April 17,
2024).
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B. Summary of Regulatory Provisions
1. Agency Determination in Consideration of Relevant Factors
This rule permits agencies to make a determination that phased
enforcement is appropriate, in consideration of relevant factors
including security, operational feasibility, and public impact. The
rule recognizes that individual Federal agencies are in the best
position to determine how to ensure successful implementation of the
REAL ID requirements within their own unique operational contexts. It
allows individual agencies to use their own expertise to structure
enforcement plans in such a manner that will lead to successful
enforcement of the REAL ID regulations while mitigating potential
[[Page 3476]]
risks of immediately transitioning to full enforcement on May 7, 2025.
In making a determination of whether phased enforcement instead of
an immediate transition to full enforcement is appropriate, agencies
must, at a minimum, consider three relevant factors that will inform
their decision. DHS identified the three factors it believes are most
likely to impact efficient and successful implementation of card-based
enforcement: security, operational feasibility, and public impact. In
addition to these factors, agencies may consider other factors they
deem relevant and necessary to make their determination.
In considering security, agencies should weigh both the security
benefits that card-based enforcement provides as well as potential
security vulnerabilities that an immediate transition to full
enforcement might create. For many agencies, DHS anticipates that the
increased security provided by card-based enforcement weighs in favor
of an immediate transition to full enforcement. However, in certain
contexts, an immediate transition to full enforcement may result in
security vulnerabilities. For example, no longer accepting noncompliant
DL/IDs may lead to long lines and crowding at access points to Federal
facilities or airport security checkpoints \25\ creating soft targets
for terrorists or violent extremists.\26\ Additionally, an atmosphere
of confusion and frustrated individuals who are denied access risks
distracting security personnel from correctly executing their
procedures. Agencies should take a holistic approach in evaluating the
security implications of transitioning to full enforcement.
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\25\ The requirements of the REAL ID Act and regulations
specifically apply to Federal agencies accepting DL/IDs for official
purposes. As such, the official purpose of boarding a federally
regulated commercial aircraft is primarily operationalized at the
TSA security checkpoint rather than at an airport departure gate
where passengers physically board commercial aircraft.
\26\ See U.S. Department of Homeland Security Soft Targets and
Crowded Places Security Plan Overview, 5-6 (May 2018), available at
<a href="https://www.cisa.gov/sites/default/files/publications/DHS-Soft-Target-Crowded-Place-Security-Plan-Overview-052018-508_0.pdf">https://www.cisa.gov/sites/default/files/publications/DHS-Soft-Target-Crowded-Place-Security-Plan-Overview-052018-508_0.pdf</a> (last
visited October 9, 2024).
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Regarding operational feasibility, agencies should consider any
implications that transitioning to full enforcement may have on their
ability to continue effectively carrying out operations in support of
their mission. DHS anticipates that in many cases, immediately
transitioning to full enforcement would have little to no impact on
agencies' ability to execute their missions and would enhance security.
Agencies may have limited interactions with the general public that
necessitate individuals seeking to access Federal facilities to present
proof of identity for entry. In other circumstances, agencies may be
able to easily adjust the manner in which they interact with the public
or provide a service to alleviate the need for individuals to use their
DL/ID for a REAL ID official purpose. For example, agencies may be able
to hold meetings in facilities that do not require the presentation of
identification documents or hold virtual meetings. For certain agencies
whose missions include operations requiring frequent use of
identification documents for a REAL ID official purpose, an immediate
transition to full enforcement may challenge an agency's ability to
effectively carry out its mission if a large number of individuals seek
to use noncompliant DL/IDs after the May 7, 2025, deadline. For these
agencies, implementing card-based enforcement through a phased approach
would allow for the opportunity to observe changes in the number of
noncompliant cards they encounter after the deadline and transition to
full enforcement in a manner that ensures continuity of operations.
Finally, agencies should assess whether an immediate transition to
full enforcement would negatively impact the public and the provision
of services. The requirements of the REAL ID Act and regulation apply
only in contexts where individuals must present an identification
document to Federal agencies for REAL ID official purposes.\27\ Card-
based enforcement does not impact access to Federal facilities that do
not require identification (for example, public areas of the
Smithsonian museums). Card-based enforcement also does not impact
public services that require identification for purposes other than an
official purpose as defined by the Act and regulation (for example,
applying for or receiving Federal benefits is not a REAL ID official
purpose). However, in cases where a government function impacting the
public does involve a REAL ID official purpose (for example, boarding a
federally regulated commercial aircraft or providing a public service
that necessitates members of the public accessing a Federal facility
that requires proof of identity for entry), agencies should consider
the extent to which an immediate transition to full enforcement would
impact their ability to carry out that function.
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\27\ See REAL ID Act of 2005 Implementation: An Interagency
Security Committee Guide (2019), p. 4-7, available at <a href="https://www.cisa.gov/resources-tools/resources/isc-guide-real-id-act-2005-implementation">https://www.cisa.gov/resources-tools/resources/isc-guide-real-id-act-2005-implementation</a> (last visited October 9, 2024).
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DHS anticipates that agencies' consideration of all relevant
factors will be informed by changes in the adoption rate leading up to
the card-based enforcement deadline. Certain factors may be given more
or less weight depending on the number of noncompliant DL/IDs agencies
are likely to encounter on and after the deadline. For agencies that
determine that beginning full card-based enforcement on May 7, 2025,
would not pose significant risks after considering security,
operational feasibility, public impact, and other relevant factors,
this rule maintains the current regulatory default of an immediate
transition to full enforcement. Agencies that determine that commencing
full card-based enforcement on May 7, 2025, is not appropriate after
considering the relevant factors, may utilize a phased approach. A
phased approach would allow them to facilitate continued secure and
orderly operations and minimize impacts to the public while
implementing enforcement phases that lead to full enforcement. This
flexibility allows these agencies to maintain operational efficiency;
reduce security risks born from long lines, incidents, and distractions
caused by additional identity verification procedures or turning away
individuals who do not have acceptable identification; decrease
potential public backlash to security personnel enforcing REAL ID; and
limit potential negative impacts to the public.
2. Coordination of Phased Enforcement Plans With DHS
Should an agency determine that phased enforcement is appropriate,
DHS also recognizes that the individual agency is best positioned to
structure its enforcement plan to account for its particular
operational setting. The rule therefore allows agencies to develop
individual phased enforcement plans best suited for specific contexts.
Although this rule does not prescribe the form that phased enforcement
plans must take in incrementally implementing enforcement of the
requirements, DHS does provide some options that agencies may
consider.\28\ For example, agencies' plans may include an initial phase
during which warning notices are issued and/or a phase involving
progressive enforcement measures--such as a ``three-strikes'' system or
other methods--that enable agencies to begin
[[Page 3477]]
enforcement without immediately denying access to individuals with
noncompliant identification on the card-based enforcement deadline.
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\28\ More detailed discussion of these options is provided in
section D. below.
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In order to ensure that agencies' enforcement plans appropriately
advance the objectives of the REAL ID regulations and maintain
consistent progress towards full enforcement, the plans must be
coordinated with DHS. The REAL ID Act grants DHS authority to implement
the Act's requirements.\29\ Requiring agencies that make a
determination to implement the REAL ID regulations through a phased
enforcement plan to coordinate their plan with DHS ensures consistency,
as appropriate. It also maintains DHS oversight of successful
implementation of the Act and regulatory requirements. Agencies seeking
to use a phased enforcement plan are required to coordinate with DHS
through the TSA REAL ID Program Office.\30\
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\29\ 49 U.S.C. 30301 note; 73 FR 5271.
\30\ On December 29, 2022, the Consolidated Appropriations Act,
2023 (Pub. L. 117-328), was signed into law, authorizing the
transfer of the REAL ID Program from the DHS Office of Strategy,
Policy, and Plans to TSA. On May 22, 2023, the Secretary of Homeland
Security approved a delegation formally vesting in TSA the authority
to manage, administer, and coordinate DHS actions necessary for
implementation of the REAL ID Act.
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DHS strongly encourages agencies to make a determination of whether
a phased enforcement plan is appropriate and, where appropriate,
develop their plan in advance of the May 7, 2025, deadline. However,
DHS recognizes that while agencies may seek to begin full enforcement
on the deadline, they may encounter unanticipated challenges.
Similarly, agencies that developed a phased enforcement plan may
encounter or have unforeseen issues in implementing the plan they
developed. In such cases, agencies may coordinate a new or modified
phased enforcement plan with DHS after the enforcement deadline.
Additional information regarding how agencies should coordinate with
DHS will be provided on the DHS REAL ID web page.\31\
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\31\ <a href="https://www.dhs.gov/real-id">https://www.dhs.gov/real-id</a>.
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3. Public Notice
DHS acknowledges the potential for some confusion resulting from
the possibility of agencies implementing phased enforcement plans that
vary across agencies. The rule seeks to mitigate that potential
confusion by (1) requiring agencies using a phased approach to make
their plan publicly available on their web page, and (2) requiring DHS
to post a list of agencies that have coordinated phased enforcement
plans with DHS on the DHS REAL ID web page \32\ to provide public
notice of the agencies implementing phased approaches. Agencies should
also clearly provide their policies for access control, including other
acceptable forms of identification.
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\32\ Id.
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4. Two-Year Phased Enforcement Period
Under the rule, any agency that chooses to implement card-based
enforcement under a phased approach must fully enforce the card-based
requirements no later than May 5, 2027. On and after that date,
agencies may not accept noncompliant marked DL/IDs or legacy DL/IDs for
official purposes. As mentioned above, DHS anticipates that shortly
before, and as REAL ID card-based enforcement begins on May 7, 2025,
individuals' urgency to obtain a compliant DL/ID will likely increase
as they realize that they will need a compliant DL/ID when they seek to
use their DL/ID for REAL ID official purposes. In States with low
adoption rates, large numbers of individuals may rapidly seek to obtain
REAL ID-compliant DL/IDs. This potential increase in demand may
challenge the capacity of licensing jurisdictions and may create
backlogs in issuance of REAL ID-compliant cards. The 2-year window
during which agencies may implement enforcement in phases is designed,
in part, to provide States additional time to meet increases in demand
for REAL ID-compliant cards. Agencies that decide to use a phased
enforcement plan may choose to implement plans that reach full
enforcement in less than 2 years, but all phased plans must conclude,
reaching full card-based enforcement, no later than May 5, 2027.
DHS also considered setting the maximum phased enforcement period
for other durations between at 1 and 5 years. DHS chose 2 years as the
maximum period during which agencies may implement phased enforcement
plans to balance delay in fully realizing the security benefits of REAL
ID with allowing sufficient time for Federal agencies' phased
enforcement plans to incentivize greater adoption rates, limit negative
enforcement impacts (where appropriate), and provide States time to
meet increased demand.
DHS believes that a 1-year timeframe may not provide agencies
sufficient flexibility to develop a phased enforcement plan with a long
enough duration time to leverage the anticipated effects of phased
enforcement, reflected in increased adoption rates. Many individuals
may only seek to use their DL/ID for official purposes once or twice a
year (for example, boarding a commercial flight to travel for a holiday
or vacation). If agencies were limited to a 1-year phased enforcement
period, they would not be able to design a plan that would account for
individuals who learn of the need to obtain a REAL ID-compliant DL/ID
towards the end of that 1-year period--possibly through a warning
notice as part of an agency's phased enforcement plan--and who may not
have sufficient time to obtain a compliant DL/ID before full
enforcement begins. Additionally, if increased demand for compliant DL/
IDs leading up to and right after the deadline results in backlogs at
State Departments of Motor Vehicles (DMVs),\33\ 1 year may not be
sufficient time for States to make any necessary adjustments to process
potential backlogs. Although a 1-year phased enforcement period would
provide a shorter delay in obtaining the full security benefits of REAL
ID,\34\ DHS believes it may not provide a long enough period for
agencies to leverage the effects of phased enforcement as individuals
and States both apprehend the need for action as a result of card-based
enforcement and take the necessary actions.
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\33\ Throughout this rule DHS uses ``DMV'' to generally refer to
licensing jurisdictions' motor vehicle licensing agencies.
\34\ The regulatory evaluation for the Minimum Standards for
Driver's Licenses and Identification Cards Acceptable by Federal
Agencies for Official Purposes Final Rule identifies the primary
benefit of REAL ID as improving security and lessening the
vulnerability of Federal buildings, nuclear facilities, and aircraft
to terrorist attacks. Department of Homeland Security, January 17,
2008, Regulatory Evaluation, Docket Number DHS-2006-0030. <a href="https://www.regulations.gov/document/DHS-2006-0030-10704">https://www.regulations.gov/document/DHS-2006-0030-10704</a>. pgs. 129-130.
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DHS did not select 3, 4, or 5 years because DHS believes a maximum
time period longer than 2 years would unduly delay the security
benefits of REAL ID and is unlikely to provide the same incentive for
individuals to prioritize obtaining a complaint DL/ID. DHS believes
that 2 years after the card-based enforcement deadline strikes the
appropriate balance and provides a sufficient amount of time for
individuals to obtain and States to provide REAL ID-compliant DL/IDs to
any eligible individual who seeks to obtain one. DHS believes that
allowing more time for phased enforcement beyond 2 years is unlikely to
offer a meaningful additional opportunity for individuals and States to
take necessary action and could further delay the security benefits of
REAL ID. Additionally, allowing for phased enforcement for more than 2
years may
[[Page 3478]]
discourage individuals and States from prioritizing necessary action.
5. Acceptance of Noncompliant Marked DL/IDs
Finally, to avoid any confusion about the ability of Federal
agencies to continue to accept noncompliant marked DL/IDs issued under
Sec. 37.71, the rule clarifies that Federal agencies may continue to
accept these licenses past May 7, 2025, if they are doing so pursuant
to an enforcement plan coordinated with DHS. Although some agencies may
accept noncompliant marked DL/IDs for official purposes as part of a
phased enforcement plan, other agencies may choose not to accept
noncompliant marked DL/IDs as part of their phased enforcement plan;
may determine that phased enforcement is not appropriate; or currently
do not accept noncompliant marked DL/IDs for official purposes.\35\
Individuals who need to visit a Federal facility should check in
advance whether the agency requires identification for access purposes
and, if they do, review the agency's access control policies.
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\35\ For example, the U.S. Department of Defense (DoD) recently
finalized an update to its DoD-Wide installation security policy and
is in the process of no longer accepting noncompliant marked cards
across all of its facilities and installations.
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C. Maintaining the May 7, 2025, Card-Based Enforcement Deadline
During the development of this rule, DHS also considered further
extending the REAL ID card-based enforcement deadline to allow for more
time for the adoption rate to increase. However, based on DHS'
observation of public behavior following prior extensions, DHS has
concluded that many individuals will continue to delay obtaining a REAL
ID in part due to a perceived lack of need. DHS believes that
maintaining the deadline of May 7, 2025, while providing agencies the
flexibility to implement the requirements through a phased enforcement
plan where appropriate, will allow for a faster and smoother transition
to full card-based enforcement than another extension of the deadline.
DHS prefers this rule's approach rather than an extension for
several reasons. By maintaining the current deadline, agencies that do
not determine that phased enforcement is appropriate will immediately
transition to full card-based enforcement on May 7, 2025. This allows
the security benefits of REAL ID to be fully realized in contexts where
full enforcement is unlikely to create other security risks, interfere
with operational feasibility, or disrupt public services. If DHS had
extended the deadline, agencies that could have immediately
transitioned to full enforcement on May 7, 2025, would likely have
waited until the new deadline, delaying security benefits that were
otherwise available. DHS expects that a significant number of agencies
will begin full enforcement on the deadline because doing so is
appropriate within their operational context.
Further, DHS believes that this rulemaking's approach is likely to
have a positive impact on the REAL ID adoption rate, while an extension
would not have incentivized an increase in demand for REAL ID-compliant
DL/IDs. Since the most recent extension in March 2023, DHS has observed
the rate of growth in adoption of compliant DL/IDs remains very low
(0.56 percent).\36\ Because of the history of extensions related to
REAL ID enforcement, DHS expects that there is some confusion, lack of
awareness, and apathy associated with the May 7, 2025, deadline. Given
this prior history, DHS believes that the public may continue to expect
that additional extensions are likely and not feel urgency to obtain a
REAL ID-compliant DL/ID. As a result, DHS believes that an extension of
the card-based enforcement date would not have been an effective means
of incentivizing changed behavior.
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\36\ Supra note 17.
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Conversely, DHS expects that allowing agencies to enforce the May
7, 2025, deadline through a phased approach will incentivize increased
demand for REAL ID-compliant DL/IDs in at least two ways. First, it
will incentivize increased adoption rates as the deadline approaches.
In part due to concerns related to low adoption rates, DHS has
previously extended the card-based deadline several months before the
enforcement date, limiting the effect of urgency to obtain a compliant
DL/ID related to the deadline. As the May 7, 2025, deadline approaches,
and DHS does not issue an extension, DHS expects individuals that were
otherwise relying on another extension will obtain a compliant DL/ID.
This rule demonstrates that DHS is planning for enforcement to begin on
May 7, 2025, and not extending the deadline. DHS expects that as this
becomes apparent to the public, more individuals will prioritize
obtaining a REAL ID.
Second, DHS expects individuals who may not be aware of the
deadline to be incentivized to obtain a compliant DL/ID when they
experience the consequences of enforcement. During the phased
enforcement period, individuals will experience varying levels of
consequences including warning notices and progressive enforcement (as
part of a phased enforcement plan), or full enforcement (where agencies
transition to full enforcement on the deadline). These consequences
will incentivize individuals who experience them to obtain a REAL ID-
compliant DL/ID. Further, because the individuals who most frequently
use their DL/ID for REAL ID purposes will be the most likely to
experience consequences, DHS expects that phased enforcement will
especially incentivize increased adoption amongst this population. A
phased approach will in turn lessen the likelihood of disruption when
agencies transition to full enforcement because the individuals who
most often use DL/IDs for REAL ID official purposes will have been
motivated to obtain a REAL ID during the phased enforcement period.
Additionally, individuals may share their experience with personal
contacts, potentially incentivizing others to obtain a compliant DL/ID.
DHS expects that as awareness that REAL ID is being enforced becomes
widespread, individuals who intend to use their DL/ID for official
purposes will be motivated to obtain a REAL ID-compliant DL/ID.
D. Phased Enforcement Guidance
Under this rule, agencies have broad discretion to determine the
structure of their phased enforcement plan so long as they comply with
the requirements in the rule to:
(1) Make a determination that a phased enforcement plan is
appropriate in consideration of relevant factors including security,
operational feasibility, and public impact;
(2) Coordinate the phased enforcement plan with DHS;
(3) Make the phased enforcement plan publicly available on the
agency's web page; and
(4) Achieve full enforcement of the card-based REAL ID requirements
no later than May 5, 2027.
The required coordination with DHS will provide DHS with visibility
on Government-wide implementation of REAL ID. It will also allow DHS to
serve in a liaison role between agencies where there may be overlapping
equities. During the coordination process, DHS will seek to provide
agencies guidance on how best to use their phased plan to transition to
full enforcement. DHS may offer feedback or suggestions related to an
agency's plan during this process. However, as long as agencies comply
with the requirements in this rule, they
[[Page 3479]]
have broad discretion as to how they structure their plans.
As guidance to Federal agencies and to promote consistency, DHS
provides the below examples of enforcement models as options agencies
may consider if they determine that a phased approach to REAL ID card-
based enforcement on May 7, 2025, is appropriate. DHS anticipates that
informed compliance would be the enforcement model best suited to most
agencies that decide to implement through a phased enforcement plan.
Federal agencies that do not make a determination that phased
enforcement is appropriate and do not coordinate a phased enforcement
plan with DHS must begin full card-based enforcement on May 7, 2025.
Under full card-based enforcement, Federal agencies may only accept a
State-issued DL/ID for official purposes if that DL/ID is issued in
accordance with REAL ID requirements by a REAL ID-compliant State.
Informed Compliance Model. Under an informed compliance model,
agencies would provide written and verbal notice to any individual that
seeks to use a noncompliant DL/ID for an official purpose on or after
the card-based enforcement date of May 7, 2025. Individuals would then
be permitted to continue the process for accessing a Federal facility
or boarding a commercial aircraft. The written notice agencies provide
should inform the individual that their DL/ID is noncompliant with REAL
ID requirements, that they should contact their DMV for further
information regarding obtaining a REAL ID-compliant DL/ID, and what to
expect if the individual presents a noncompliant DL/ID and no other
acceptable form of identification in the future. An accompanying verbal
notice should briefly summarize the written notification and, at a
minimum, inform the individual they are not in compliance with REAL ID
requirements and direct the individual to reference the written notice.
Under this model, agencies would not maintain a record of individuals
who have presented a noncompliant DL/ID and have been issued a notice.
Individuals who present an alternate acceptable form of identification
(for example, a passport at the TSA checkpoint) would not receive a
noncompliance notification. Under this model, agencies would continue
to employ existing security and identity verification processes to
confirm the authenticity and validity of the noncompliant DL/ID
presented.\37\
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\37\ As an example, the NPRM discussed DHS' use of an Informed
Compliance model to enforce the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users. See 89 FR
74145.
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Informed Compliance with Limits. Under an Informed Compliance with
Limits model, agencies would limit the number of times an individual
may present a noncompliant DL/ID for an official purpose. Once an
individual exceeds the prescribed number of allowable attempts, they
would be denied the ability to use their noncompliant DL/ID for the
REAL ID official purpose (e.g., use the noncompliant DL/ID for purposes
of accessing a Federal facility) if they have no other acceptable form
of identification. Employing this model would likely create significant
requirements and obligations for the agency. Specifically:
1. The agency would collect personally identifiable information
(PII), including name, DL/ID State, and DL/ID number, as well as other
information necessary to reliably identify the individual. This PII
would need to be collected, maintained, and used in accordance with all
applicable Federal guidelines and policy requirements related to
collection of PII. This would likely require agencies to obtain an
Office of Management and Budget (OMB)-approved Paperwork Reduction Act
(PRA) information collection and prepare a Privacy Threshold Analysis,
Privacy Impact Assessment, System of Records Notice, and other
documentation for collection, storage, and use of PII.
2. The individual would attest that the PII provided is theirs and
accurate.
3. The agency would need to be able to demonstrate that they
delivered a notification of noncompliance to the individual (i.e.,
record of transmittal).
4. The agency may wish to obtain the individual's acknowledgement
of receipt of the noncompliance notification at the time the individual
presents the noncompliant DL/ID.
5. The agency would need to develop a system to track the number of
instances the individual presented a noncompliant DL/ID and no other
acceptable ID.
6. The agency would need to determine a limit on the number of
times an individual may be authorized access after presenting a
noncompliant DL/ID and no other acceptable form of identification.
7. The agency would need to define an appropriate period of time
(in days/weeks) during which the individual may continue to use a
noncompliant DL/ID for purposes of accessing the agency, after which
the applicant would be given another notification of noncompliance if
they again presented a noncompliant DL/ID (in other words, how long
individuals may continue to use their noncompliant DL/ID on the same
``strike'' or ``warning'' before incurring a subsequent ``strike'' or
``warning'').
Agencies would need to choose an appropriate time period during
which individuals would continue to use their noncompliant DL/ID
without it being treated as an additional instance of noncompliance
(``strike'' or ``warning''). Agencies should choose a time period
appropriate to their operations. For agencies where the identity
verification for official purposes is rare or isolated, it may be
appropriate to treat each time an individual presents a noncompliant
DL/ID as an instance of noncompliance. However, DHS believes that in
certain cases individuals may need to use their DL/ID for a REAL ID
official purpose for multiple instances within a short period of time
(e.g., boarding a return flight from a destination or returning to a
Federal facility to follow-up on the purpose of the initial visit).
Individuals may not be able to obtain a REAL ID in between such related
instances, so in these cases agencies may choose a time period that
allows for multiple uses of a noncompliant DL/ID as part of the same
instance of noncompliance. After the allotted time period expires, the
presentation of a noncompliant DL/ID would be treated as another
instance of noncompliance.
Agencies employing an Informed Compliance with Limitations model
should provide individuals who present a noncompliant DL/ID with
specific notice whenever an instance is being counted towards that
individual's limit. The notice should reference the agency's overall
policy and how the particular instance would affect the individual in
the future. Agencies may choose to adopt different nomenclature for
initial and subsequent instances of an individual presenting a
noncompliant DL/ID. This may include language or consequences of
subsequent notifications under this that progress in seriousness. For
example, an agency may choose to permit access on the first two
instances of noncompliance and deny access on the third (and any
subsequent instance). Upon the third instance, the individual would be
issued a ``final'' notification that their State-issued DL/ID is
noncompliant and can no longer be accepted by that agency for the REAL
ID official purpose. The Federal agency would not accept the
individuals noncompliant DL/ID at that time and on all future instances
unless the individual obtains a REAL ID
[[Page 3480]]
or presents an alternative, acceptable form of identification.
DHS acknowledges that an Informed Compliance with Limitations
enforcement plan would likely demand significant agency resources. DHS
expects many agencies to begin full enforcement on the May 7, 2025,
deadline. Of the agencies that do determine a phased approach is
appropriate, DHS expects most will use a simple plan that provides a
time-limited warning period (i.e., ``Informed Compliance''). Given the
resources required, including the need for secure systems, DHS expects
very few agencies to choose an enforcement plan that tracks individual
instances of noncompliance.
Additional considerations. Agencies may determine to implement a
phased approach that employs only one of these models followed by full
enforcement. For example, an agency may choose to begin enforcement
with an Informed Compliance Phase or Informed Compliance with Limits
Phase for a set period of time (e.g., 3 months, 6 months, 1 year)
followed by a transition to full enforcement at the end of that period.
Alternatively, agencies may develop a plan that combines both models
before transitioning to full enforcement. For example, an agency may
begin enforcement with an initial Informed Compliance Phase for a set
period of time, followed by an Informed Compliance with Limits Phase
for an additional period of time, before beginning full enforcement.
Agencies have the flexibility to determine the model(s) and timing that
best suit their operational environment.
Although DHS believes the models discussed above are likely to be
the most common and effective, they are not exclusive. Agencies may
develop plans based on other models. However, all phased enforcement
plans, whether based on the above models or a different model must be
coordinated with DHS and must conclude, and agencies must fully enforce
REAL ID card-based requirements, no later than May 5, 2027. For
agencies that make a determination that phased enforcement is
appropriate, the same factors that they considered to make that
determination should inform their determination of how to structure
their plan.
Finally, although REAL ID adoption rates should inform agencies
when developing their enforcement plans, agencies' plans should be
consistent across all States and territories. In other words, agencies
should have a consistent national policy and individuals should not be
subject to different consequences based on the adoption rate of a
particular jurisdiction. To reduce the potential for confusion, ensure
fair and equitable treatment of residents of all States, and ensure
operational consistency, agencies that have operations or facilities
spanning multiple States and territories should have one plan for all
their facilities. Agencies' plans may make distinctions based on the
types of facilities they operate (e.g., agencies may wish to begin full
enforcement at certain types of facilities but use a phased approach at
another type of facility) as long as the same policies apply to the
same types of facilities nationwide and treat all DL/ID holders
similarly. For example, agencies may choose to begin full enforcement
at their headquarters facility while implementing a phased approach at
field offices where the public more frequently seeks to use DL/IDs for
official purposes, but (in this example) the same phased enforcement
policy should apply to all field offices no matter where they are
located. Agencies should provide information regarding their plans on
their website and take other appropriate measures to inform the public
and provide notice regarding their plan.
DHS acknowledges that some agencies may maintain offices in or
conduct operations out of leased facilities or multi-tenant facilities
where the agency does not have direct control over the access control
policies of the facility. Agencies leasing space in their facilities to
other agencies and lead tenants as part of facility security committees
determining physical security polices for multi-tenant facilities
should develop plans that take into account the operations of tenant
agencies and potential public impact associated with those operations
when developing phased enforcement plans. As previously discussed,
agencies may make distinctions based on the types of facilities they
operate. Depending on the context, it may be appropriate for an agency
developing a phased enforcement plan to draw a distinction between
facilities that are shared by with agencies and facilities that are
used solely by the agency developing the plan.
IV. Discussion of Comments
DHS published the NPRM on September 12, 2024,\38\ and the deadline
for public comments was October 15, 2024.\39\ During the 30-day comment
period, DHS received over 11,000 comments on the NPRM. DHS carefully
considered every comment received as part of the official record. DHS
also received 103 comments submitted after the comment period closed.
Although DHS did not consider comments submitted after the comment
period closed, DHS determined that these comments were substantively
similar to other comments received within the comment period and are
addressed by DHS' response to those comments.
---------------------------------------------------------------------------
\38\ 89 FR 74137.
\39\ The NPRM provided for a comment period of 30 days. The
<a href="http://Regulations.gov">Regulations.gov</a> system was unavailable on October 12th and 13th due
to a planned outage, so the comment period closed on October 15th to
provide the public with the full 30 days to comment.
---------------------------------------------------------------------------
DHS received several comments suggesting that the 30 days provided
for comment was not long enough. DHS considered these comments and
determined not to extend the comment period for the NPRM. As discussed
above, under the REAL ID regulations, Federal agencies may only accept
compliant State-issued DL/IDs for official purposes beginning on May 7,
2025, which at the time of publication, is less than 6 months away.
Given the importance of providing clarity for Federal agencies and to
the public on agencies' authority to implement card-based enforcement
through a phased approach, extending the comment period beyond 30 days
would delay issuance of this final rule, thereby depriving Federal
agencies certainty and valuable time as they plan to begin card-based
enforcement. Further, suggestions that a longer comment period would be
appropriate did not articulate any particular reason why the 30-day
comment period was insufficient, and instead provided generalized
statements that additional time would allow for greater public
awareness. Moreover, the regulatory changes made by this rule are not
overly complex, and DHS believes that 30 days provided sufficient time
for the public to provide meaningful comments.
A. General Opposition to REAL ID
Comments: Many commenters expressed general opposition to the
requirements of the REAL ID Act and implementing regulations. Several
commenters asserted that the REAL ID Act and implementing regulations
are generally unconstitutional, including under the 1st (individual
freedoms), 4th (search and seizure), 5th (criminal procedures), 6th
(criminal procedures), 7th (jury trial), 9th (rights not enumerated),
10th (rights reserved to states or people), and 14th (due process and
equal protection) amendments to the U.S. Constitution. In making these
claims, commenters asserted that the
[[Page 3481]]
REAL ID Act and regulations violate privacy or put personal information
at risk, including by establishing a national ID or social credit
reporting system; mandating a digital ID, collecting biometrics
unlawfully; intruding on citizens privacy and facilitating government
surveillance; creating a vast collection of sensitive personal data
that makes citizens more vulnerable to identity theft; or allowing for
sharing of individuals' information with foreign governments and
international organizations. Other comments asserted that the REAL ID
Act and regulations interfere with a constitutionally protected right
to interstate travel. Some commenters asserted that the REAL ID Act and
implementing regulations are unauthorized, including claims that they
exceed the Federal government's statutory jurisdiction; create a system
whereby the Secretary of DHS has unilateral authority to add new
official purposes and curtail constitutional rights; waste taxpayer
money; or constitute Government overreach. Regarding the impact on
States, commenters asserted that the REAL ID Act and regulations are
inconsistent with State authority, including by encroaching on state
sovereignty; undermining principles of federalism; imposing significant
costs on States, which would require increased Federal funding and
technical support; and imposing these costs as an unfunded mandate on
states.
Commenters also state that the REAL ID Act and regulations
negatively affect individuals by burdening certain populations
unjustly, including non-citizens, who may not have sufficient
documentation to obtain a REAL ID, which would thereby limit their
access to essential services and travel; by constituting a significant
financial burden to obtain a REAL ID-compliant DL/ID; or by imposing an
undue burden on individuals that have changed their name (for example,
in relation to marriage or divorce). Additionally, commenters suggested
that indefinite phased enforcement be used to nullify the REAL ID act
and regulations, or that the phased enforcement rule be revised to
instead provide an individual opt-out mechanism from the REAL ID
requirements. Finally, commenters assert that the REAL ID Act and
implementing regulations are outdated, do not actually provide
increased security benefits, and will not make the nation safer. On a
related issue, several commenters raised concerns that DHS takes for
granted that DHS has certified all 56 licensing jurisdictions when, in
the commenter's view, all DHS certifications erroneously determine the
states to comply; and that the rulemaking will result in inconsistent
DL/ID issuance procedures across the states.
DHS response: DHS appreciates the many comments received regarding
the REAL ID Act and regulations. Although these concerns are sometimes
represented as directed at the current rulemaking, DHS did not propose
substantive amendments to the REAL ID requirements, and comments
expressing opposition to those underlying requirements or their
implementation by current State implemented REAL ID issuance processes
are outside of the scope of this rulemaking. Congress passed the REAL
ID Act in 2005, enacting the 9/11 Commission's recommendation that the
Federal government set minimum standards for the issuance of sources of
identification, such as drivers' licenses, and charged DHS with
implementing the statutory requirements.\40\ DHS went through notice
and comment rulemaking and published a final rule on January 29, 2008,
implementing the REAL ID Act's requirements. In 2020, Congress
reaffirmed its commitment to REAL ID by passing the REAL ID
Modernization Act, which updated certain provisions of the original
statutory language.\41\ The Phased Enforcement NPRM did not propose
changes to the existing regulatory requirements that provide the
substantive standards for REAL ID issuance. Under the REAL ID
regulations card-based enforcement begins on May 7, 2025. This rule
only modifies provisions related to the enforcement deadline to provide
Federal agencies with the flexibility to implement card-based
enforcement through a phased enforcement plan where appropriate. This
final rule does not alter any of the substantive requirements of the
REAL ID regulations and only amends the provisions related to the
deadline for card-based enforcement. As DHS did not propose substantive
amendments to REAL ID requirements, comments expressing opposition to
those underlying requirements are outside the scope of this rulemaking.
---------------------------------------------------------------------------
\40\ 49 U.S.C. 30301 note.
\41\ Title X of Division U of the Consolidated Appropriations
Act, 2021, Public Law 116-260, 134 Stat. 2304.
---------------------------------------------------------------------------
B. Legal Authority
Comments: Some commenters stated that the REAL ID Act does not
provide authority for this rulemaking. Another commenter expressed the
view that the flexibility provided by this rule constitutes an improper
delegation of authority to DHS components and other agencies and
exceeds DHS' authority under the REAL ID Act. The commenter suggests
that, through this rule, DHS is redelegating its regulatory authority
to other agencies. The commenter noted that instead of setting
standards for the acceptance of IDs, this rule allows agencies to make
decentralized and nonstandard determinations regarding the acceptance
or rejection of noncompliant DL/IDs. Additionally, the commenter stated
that agencies' phased enforcement plans, themselves, would constitute
Federal regulations.
DHS response: DHS disagrees that the REAL ID Act does not provide
authority for this rulemaking, as the statute explicitly authorizes DHS
to promulgate regulations to implement the Act's requirements. Section
205 of the REAL ID Act provides that ``[a]ll authority to issue
regulations . . . shall be carried out by the Secretary.'' \42\ In
issuing this rule, DHS is exercising its rulemaking authority to
implement the REAL ID requirements in consideration of Federal
agencies' authority to make agency-specific decisions about enforcement
actions affecting individuals presenting DL/IDs which are not compliant
with the READ ID Act and regulations.\43\ Under the REAL ID Act and
regulations, all agencies are still required to begin card-based
enforcement on May 7, 2025, but the rule provides a formal structure
under which agencies may flexibly exercise their existing enforcement
authority. The rule clarifies and reinforces that the general
principles underpinning agencies' enforcement authority apply to the
prohibition on Federal agency ``acceptance'' of noncompliant DL/IDs.
---------------------------------------------------------------------------
\42\ Sec. 205(a) of the REAL ID Act.
\43\ 49 U.S.C. 30301 note, section 202(a)(1).
---------------------------------------------------------------------------
DHS further disagrees with the position that this rule
inappropriately delegates rulemaking authority to other agencies. This
rule does not provide agencies with any authority or discretion to
modify the substantive requirements of the REAL ID regulations.
Agencies' phased enforcement plans cannot alter the standards that
govern whether a DL/ID is REAL ID-compliant. DHS also disagrees with
the notion that REAL ID authority was provided solely to DHS, and that
agencies' phased enforcement plans constitute regulations. Although the
REAL ID Act generally granted DHS authority to implement the Act's
provisions, Congress vested the authority to enforce acceptance of REAL
ID-compliant DL/IDs with each
[[Page 3482]]
individual agency.\44\ This rule acknowledges the statutory authority
of other agencies to enforce acceptance of REAL ID-compliant DL/IDs in
matters under their purview. The rule enhances agencies' existing
enforcement authority by explicitly providing temporary, limited
flexibility for agencies to begin card-based enforcement in a manner
that takes into account relevant factors, allowing agencies to more
smoothly transition to full card-based enforcement. The rule also
provides DHS oversight of phased enforcement plans by requiring
agencies to coordinate such plans with DHS, which mitigates the
commenter's concern by allowing DHS to ensure that plans advance the
objectives of the REAL ID regulations and maintain consistent progress
towards full enforcement and to ensure consistency, as appropriate.
---------------------------------------------------------------------------
\44\ 49 U.S.C. 30301 note, section 202(a)(1), ``Beginning 3
years after the date of the enactment of this division, a Federal
agency may not accept, for any official purpose, a driver's license
or identification card issued by a State to any person unless the
State is meeting the requirements of this section'' (emphasis
added).
---------------------------------------------------------------------------
Comments: One commenter stated that this rule purports to impose a
new ID requirement for airline passengers because it implies that
passengers who do not present a REAL ID-compliant DL/ID or acceptable
alternative would not be able to board federally regulated commercial
aircraft.
DHS response: This rule only relates to Federal agency, including
TSA, acceptance of State-issued DL/IDs for defined REAL ID official
purposes. Boarding federally regulated commercial aircraft is an
official purpose under the REAL ID Act and regulations. Upon full card-
based enforcement, TSA may not accept noncompliant State-issued DL/IDs
at security screening checkpoints for the purpose of boarding federally
regulated commercial aircraft.\45\ This rule does not otherwise effect
TSA's policies related to acceptable forms of identification and
identity verification.
---------------------------------------------------------------------------
\45\ 6 CFR 37.5(b).
---------------------------------------------------------------------------
C. General Support for the Rulemaking
Comments: Several commenters expressed general support for the
proposed rule. Commenters wrote that they agreed that a phased roll out
was a necessary step to begin enforcement and that this approach is a
blend of practicality and foresight that benefits everyone. One
commenter noted that the rule balances the purpose of the REAL ID Act
and regulations with practical considerations. The commenter stated
that by allowing agencies to gradually implement enforcement, the rule
may alleviate potential disruptions at airports and Federal facilities.
Other commenters noted that allowing agencies to use a phased
enforcement plan is a practical and thoughtful approach that will
ensure security while giving agencies the opportunity to address
challenges associated with enforcement. Another commenter shared that
this approach allows some agencies to quickly transition to full
enforcement where they do not anticipate challenges while allowing
other agencies flexibility to make necessary plans to enforce the
requirements efficiently.
DHS response: DHS agrees with these comments and believes that this
rule provides appropriate flexibility that will enable Federal agencies
to help ease the transition to full implementation of the card-based
enforcement provisions of the REAL ID regulations. DHS believes this
rule appropriately balances the security benefits that card-based
enforcement provides with the negative effects that some Federal
agencies may experience if they were to immediately transition to full
enforcement on May 7, 2025.
D. Immediate Transition to Full Enforcement
Comments: Several commenters expressed opposition to agencies using
a phased approach and any delay to full card-based enforcement.
Commenters pointed to a number of reasons supporting the position that
full enforcement should begin on May 7, 2025, including: that the
public has had ample time to obtain REAL ID-compliant DL/IDs; that
agencies have had twenty years to determine how to enforce REAL ID; and
that allowing phased enforcement will serve as a disincentive to
adoption if the public delays obtaining a REAL ID because they either
(1) expect agencies to use a phased approach and not enforce
immediately or (2) simply perceive this as an extension of the
deadline; and that many individuals can provide alternative, acceptable
identification, such as passports to reduce operational impacts.
Commenters also noted that REAL ID requirements help protect the
aviation transportation system and that phased enforcement would delay
the security benefits of card-based enforcement. One commenter stated
DHS' estimate that only 4 percent of agencies may determine that a
phased enforcement plan is appropriate implies that the rule is
unnecessary. Yet another commenter suggested that in lieu of a
regulation allowing phased enforcement, DHS should conduct a public
awareness campaign to inform the public about the card-based
enforcement deadline and to understand to what degree individuals are
aware of REAL ID.
DHS response: DHS considered not issuing this rule and allowing
card-based enforcement to begin across all Federal agencies as an
alternative and agrees with the comments about the important security
benefits that REAL ID provides. However, DHS believes that providing
agencies flexibility to consider relevant factors and make a
determination to, in some cases, begin implementation through phased
enforcement will facilitate a smoother transition to full card-based
enforcement and mitigate potential risks associated with an immediate
transition across all agencies.
Given the current number of DL/IDs that are non-compliant, DHS
anticipates that a significant number of individuals seeking to use
their DL/ID for a REAL ID official purpose on and after May 7, 2025,
may not have a REAL ID-compliant DL/ID. DHS delayed implementation of
the REAL ID deadline for a number of years to allow for more
individuals to obtain REAL-ID compliant DL/ID. Despite the Federal
government's years of preparation for REAL ID, the adoption rate
remains low and instances of individuals seeking to use a noncompliant
DL/ID for a defined official purpose may occur on a large scale,
raising concerns related to security, agency operations, and potential
impact to the public. In contexts where agency operations involve large
numbers of individuals presenting DL/IDs for REAL ID official purposes
or where agencies have limited capacity to conduct identity
verification processes where REAL ID is required, this may result in
longer lines, general delays, confusion, and frustration. Disruptions
to agency operations caused by large numbers of individuals attempting
to use noncompliant DL/IDs are also likely to have broader effects and
impact individuals who bring a valid form of identification. Such
disruptions pose potential security risks at access points to TSA
security checkpoints or other Federal facilities. DHS believes that the
potential risks an immediate transition to full enforcement would cause
for some agencies will be mitigated by the flexibility provided by
phased enforcement.
In addition, some commenters may have misunderstood this rule as an
extension of the card-based deadline until May 5, 2027. As explained
above,\46\ this rule is not an extension of
[[Page 3483]]
the deadline. The rule maintains an immediate transition to full
enforcement on May 7, 2025, for those agencies that do not determine
that a phased approach to enforcement is appropriate. Recognizing the
security benefits provided by REAL ID, this rule provides an
enforcement approach that allows agencies to realize security gains in
contexts where a swift transition to full enforcement poses little
risk, while reducing the risks in contexts where large numbers of
individuals seeking to use noncompliant DL/IDs raises serious concerns.
Under this rule, agencies must specifically consider security when
determining whether a phased enforcement plan is appropriate. DHS
anticipates that for many agencies, phased enforcement will not be
appropriate where the benefits of beginning full card-based enforcement
on May 7, 2025, outweigh the other factors and benefits of phased
enforcement. A phased approach will be more likely for those agencies
where potential risks related to security, operational feasibility, and
public impact strongly weigh in favor of and support implementing a
phased enforcement plan. In this way, the rule appropriately balances
obtaining the security benefits of REAL ID with the need to mitigate
potential risks.
---------------------------------------------------------------------------
\46\ Supra III.C.
---------------------------------------------------------------------------
DHS also does not agree that allowing agencies to enforce through a
phased approach will disincentivize the public in obtaining a REAL ID-
compliant DL/ID. Rather, implementation of this rule and enforcing the
regulatory deadline beginning May 7, 2025, will incentivize the public
to obtain compliant DL/IDs while considering the need of some agencies
to enforce through a phased approach to address security and public
interest concerns. Beginning May 7, 2025, DHS anticipates that many
agencies will begin full enforcement, and not accept non-compliant DL/
ID. Those agencies that choose to implement the regulatory deadline
using a phased approach will decide the timeline and conditions
appropriate for their agency to implement within the 2-year period. DHS
expects the public to see the tangible results of attempting to use a
non-compliant ID/ID for official purposes, either directly, through
media coverage, or via DHS and agency public messaging, and decide to
obtain a compliant DL/ID.
DHS' estimate that only 4 percent of agencies may ultimately
determine that a phased enforcement plan is appropriate does not
indicate that the rule is unnecessary. The frequency and volume of
Federal agencies' interactions with the public that may require
presentation of a DL/ID for a REAL ID official purpose varies
significantly. Based on its stakeholder engagements with Federal
agencies, DHS believes that the vast majority of agencies do not handle
a significant volume of individuals presenting DL/IDs for an official
purpose under the REAL ID Act and regulation. However, other agencies
(for example, TSA) encounter a much larger volume of individuals on a
daily basis that must present an identification document for a REAL ID
official purpose. Although DHS estimates that only 4 percent of
agencies will make a determination to use a phased enforcement plan,
this rule acknowledges that each individual agency is in the best
position to consider the relevant factors and make a determination
based on the agency's own mission and operational context. DHS believes
it is important for all agencies to have the flexibility provided by
this rule as they prepare to begin card-based enforcement on May 7,
2025.
Finally, DHS also appreciates the value of increasing public
awareness of REAL ID requirements. TSA has undertaken efforts to
conduct surveys on the public's awareness of REAL ID and is engaged in
public awareness campaigns through multiple media outlets. Given the
modest changes to the REAL ID adoption rate over the past year
notwithstanding DHS' significant public outreach, DHS does not believe
a public awareness campaign on its own would sufficiently increase the
adoption rate of compliant DL/IDs by May 7, 2025, to effectively
mitigate the risks some agencies may face if they immediately
transitioned to full enforcement.
E. Extension of the Card-Based Enforcement Deadline
Comments: Some commenters suggested that rather than beginning
card-based enforcement on May 7, 2025, DHS should issue an extension of
the card-based enforcement deadline. Commenters wrote that the deadline
should be extended because of low rates of adoption of REAL ID-
compliant DL/IDs, the impact of the COVID-19 pandemic on States'
ability to issue REAL ID-compliant DL/IDs, and a lack of public
awareness. One commenter wrote that an extension of 2 or 3 years would
be appropriate. Other commenters suggested that REAL ID enforcement
should be extended for 5 years, 7 years, 10 years or more. Some
commenters stated that individuals had encountered challenges in
obtaining a REAL ID due to complexity in meeting eligibility
requirements or unequal access to DMVs due to physical distance from
DMV locations, work schedules, and lack of transportation. Another
commenter stated that REAL ID enforcement should not begin until the
Federal government or State governments provide funding such that the
cost of obtaining a REAL ID-complaint DL/ID is not passed on to
individuals.
DHS response: DHS considered an extension to the card-based
enforcement deadline but chose the approach provided by this rule for
several reasons. As discussed above,\47\ DHS believes that maintaining
the deadline of May 7, 2025, will continue to encourage REAL ID
adoption whereas an extension of the deadline would reduce adoption
incentives. Maintaining the deadline while providing agencies the
flexibility of phased enforcement where appropriate will allow for a
faster and smoother transition to full card-based enforcement than
another extension of the deadline.
---------------------------------------------------------------------------
\47\ Supra III.C.
---------------------------------------------------------------------------
This approach maintains the current deadline, facilitating an
immediate transition to full enforcement for agencies that do not
determine phased enforcement is appropriate. In this way, the security
benefits of REAL ID can be fully realized in contexts where full
enforcement poses little risk of creating other security risks,
interfering with operational feasibility, or disrupting public
services. Further, DHS believes that this approach will encourage REAL
ID adoption by maintaining the urgency to obtain a compliant DL/ID
prior to the deadline and after the deadline, when individuals
experience the consequences of card-based enforcement. As individuals
learn that their noncompliant DL/ID can no longer be used for defined
official purposes, they will be incentivized to obtain a REAL ID-
compliant DL/ID.
DHS appreciates concerns raised that an extension is necessary due
to the current REAL ID adoption rate and the impact of COVID-19 to
State's ability to issue REAL ID-compliant IDs. DHS has previously
issued a number of extensions to account for slow growth in the REAL ID
adoption rate, as well as COVID-19 impact, however, even given these
prior extensions the rate of REAL ID issuance remains low. To increase
adoption and realize the benefits of the REAL ID Act, the REAL ID
deadline must be enforced. DHS believes that maintaining the
enforcement date along with measures encouraging adoption as part of
phase enforcement plans will help increase adoption rates thereby
providing the security benefits of REAL ID while also addressing
concerns about low adoption rates and State's ability to
[[Page 3484]]
issue REAL ID-compliant IDs. Specifically, DHS recognizes that many
individuals still do not have a compliant DL/ID, and beginning full
enforcement on May 7, 2025, may not be practical for all Federal
agencies. As such, the rule allows for agencies to determine, after
considering relevant factors including security, operational
feasibility, and public impact that they should implement the deadline
through a phase approach.
DHS does not agree that the date should be extended due to the lack
of public awareness. DHS, in close coordination with States, airlines,
airports, and other industry partners, has messaged the importance of
obtaining a REAL ID-compliant DL/ID for a number of years. DHS believes
that continued messaging alone will not result in a substantial
increase in adoption rates. DHS believes that beginning enforcement,
with the flexibility phased enforcement provides, will increase public
awareness and increase REAL ID adoption rates more quickly than an
extension of the deadline.
DHS recognizes some individuals have encountered challenges in
obtaining a REAL ID-compliant DL/ID due to an inability to meet
eligibility requirements. DHS recommends that individuals contact their
State licensing agency directly to determine if they are able to meet
issuance requirements. In addition, many agencies allow for individuals
to provide other acceptable forms of identification or allow
individuals to proceed using alternative access control procedures. DHS
recommends that individuals without a REAL ID-compliant ID contact the
Federal agency in question to determine that agency's unique access
control requirements.
DHS also does not agree that the deadline should be extended
because of challenges that individuals may face in obtaining a REAL ID-
compliant DL/ID due to unequal access to DMVs. DHS recognizes that some
individuals may have a more difficult time traveling to a DMV to obtain
a REAL ID-compliant DL/ID than others. However, to realize the security
benefits of REAL ID, DHS believes that beginning card-based enforcement
on May 7, 2025, is appropriate and that individuals will have had
sufficient time to obtain a REAL ID-compliant DL/ID before that date.
To the extent agencies implement card-based enforcement through phased
enforcement plans, this rule may provide additional time after the
deadline for individuals to obtain REAL ID-compliant DL/IDs.
Finally, DHS disagrees with the comment that DHS should delay card-
based enforcement until Federal or State funding reduces the costs of
obtaining a REAL ID compliant-DL/ID. Congress passed the REAL ID Act in
2005 and DHS issued a final rule implementing the Act's requirements in
2008. The Act and regulations provide for the statutory and regulatory
framework for REAL ID. Under this framework, neither Congress nor DHS
set parameters on the cost to individuals to obtain a REAL ID-compliant
DL/ID. Therefore, DHS believes enforcement of REAL ID requirements
should not be tied to the cost of obtaining a REAL ID-compliant DL/ID.
Comment: One commenter suggested extending the deadline because
Washington state does not issue REAL ID DL/IDs.
DHS response: The State of Washington issues Enhanced Driver's
Licenses (EDLs), which are designated as acceptable border-crossing
documents by DHS under the Western Hemisphere Travel Initiative and are
an acceptable form of identification for REAL ID official Federal
purposes such as accessing a Federal facility or boarding a commercial
aircraft. Michigan, Minnesota, New York, Vermont, and Washington are
the only States that currently issue EDLs. For more information on
EDLs, please visit the DHS website.\48\
---------------------------------------------------------------------------
\48\ <a href="https://www.dhs.gov/enhanced-drivers-licenses-what-are-they">https://www.dhs.gov/enhanced-drivers-licenses-what-are-they</a>.
---------------------------------------------------------------------------
F. Confusion Associated With Phased Enforcement Generally
Comments: Multiple commenters stated that the REAL ID requirements,
delays, and shifting deadlines were already confusing, and that a
phased approach will only add more confusion and complexity. Some
commenters noted that the proposed rule could cause confusion through
inconsistent enforcement timelines across Federal agencies. Another
commenter noted that DHS did not prescribe the form that agencies'
plans must take, claiming it would cause unspecified harm, which DHS
assumes refers to confusion related to inconsistent enforcement plans
across agencies. Other commenters also expressed concerns over public
awareness of the proposed rule. These commenters suggested that a lack
of public awareness could impede the effectiveness of the rule in
encouraging REAL ID adoption, and result in demand surges at DMVs at
the end of the phased enforcement period.
There were also comments about public awareness of the REAL ID
requirements and enforcement plans. Specifically, some commenters
expressed concerns that people who do not fly often may not see
postings by TSA and may not be aware of REAL ID requirements. Others
who supported the rule emphasized the importance of an expansive public
campaign.
DHS response: DHS appreciates that some commenters are concerned
that REAL ID messaging, to date, has been confusing, and that the
phased implementation plans allowed through this rule could add to that
confusion. To mitigate potential confusion regarding the REAL ID dates
changes in the regulation, DHS has worked closely with States, industry
and media partners to ensure the public was aware of the REAL ID
extensions. DHS will continue its current messaging that the REAL ID
deadline will not be extended past May 7, 2025, and that individuals
should obtain a REAL ID-compliant ID, or other acceptable form of
identification, as soon as possible. To ensure public visibility and
reduce confusion regarding individual enforcement plans, agencies that
implement card-based enforcement using a phased approach must make
their plan publicly available on their web page. DHS must also make
publicly available a list of agencies that have implemented a phased
enforcement plan. Additionally, to prepare the public for REAL ID
enforcement, DHS is conducting public awareness campaigns through
internet, currently, and television and radio campaigns starting in
2025, which will continue through the card-based enforcement date.
TSA's REAL ID Program is also working closely with States and the
travel industry to support efforts to raise awareness among their
citizens and customers. This includes a media campaign ``toolkit,''
which provides stakeholders with digital, print, social media, and
audio/video materials, that can be used by stakeholders in their own
media campaigns.\49\ DHS has also collaborated with States and other
stakeholders on media events designed to increase public awareness of
the REAL ID deadline. DHS believes these public awareness efforts will
help mitigate, but not eliminate, the risk of demand surges towards the
end of the phased enforcement period. DHS believes that despite public
awareness campaigns, many individuals will choose to wait until the
last minute to obtain a REAL ID compliant-DL/ID, so it may not be
possible to eliminate all risk
[[Page 3485]]
of a demand surge. However, by targeting messaging at individuals more
likely to need a compliant DL/ID (e.g., domestic commercial air
travelers) media campaigns will likely encourage some individuals to
obtain a compliant DL/ID, mitigating a potential surge approaching the
deadline.
---------------------------------------------------------------------------
\49\ ``Be Your REAL ID Self[hairsp]'' Campaign Toolkits, <a href="https://www.dhs.gov/real-id/campaign-toolkits">https://www.dhs.gov/real-id/campaign-toolkits</a> (last visited November 20,
2024).
---------------------------------------------------------------------------
DHS acknowledges that this rule could potentially create confusion
due to the possibility of inconsistent enforcement timelines, with some
agencies implementing full enforcement and other agencies implementing
varying phased enforcement plans. The rule's requirement that agencies
post their plans publicly on their web page is intended to provide
transparency and mitigate potential confusion. To the extent variation
in enforcement across Federal agencies still results in some confusion,
DHS believes that the approach offered by this rule will be more
effective than other alternatives that may offer more straightforward
messaging. Although immediately beginning full card-based enforcement
across all agencies or extending the deadline for card-based compliance
might present a simpler message to communicate to the public, as
explained above in DHS' response to other comments,\50\ DHS believes
the approach provided in this rule will better enable a smooth
transition to full card-based enforcement. DHS believes that the
benefit of allowing enforcement to begin with the flexibility for
phased enforcement, where appropriate, outweighs the risk of potential
confusion, particularly with the mitigation through public
communication.
---------------------------------------------------------------------------
\50\ Supra IV.D., IV.E.
---------------------------------------------------------------------------
Finally, DHS acknowledges that a successful implementation of REAL
ID enforcement relies on public awareness of the REAL ID requirements,
upcoming deadline, and phased enforcement plans. For years, DHS has
made significant efforts to raise public awareness of REAL ID
enforcement, to include providing information at the TSA security
checkpoint about the upcoming REAL ID deadline, and will continue to do
so through May 7, 2025. To continue DHS's commitment to transparency
and public awareness regarding REAL ID requirements, as discussed
below, this final rule requires agencies to post their phased
enforcement plans, if they choose to use them, on their agency website.
G. Public Availability of Agencies' Phased Enforcement Plans
Comment: One commenter expressed concern that online publication of
agency phased enforcement plans may not provide sufficient public
awareness or adequately prepare the public for what to expect when
seeking to use a noncompliant DL/ID for a defined official purpose. The
commenter suggested that agencies should also be required to maintain
information regarding their phased enforcement plans on site at
locations where individuals may need to use a DL/ID for a defined
official purpose.
DHS response: DHS appreciates this comment highlighting the
importance of ensuring that information regarding agencies' phased
enforcement plans is available to the public. Given the scope of
potential phased enforcement plans, which range from full enforcement
to non-enforcement through the 2-year period, DHS does not believe it
is appropriate to prescribe specific means by which the individual
agency must inform members of the public about their plan, beyond the
general requirement to make it publicly available on an agency website.
One of DHS' goals in requiring agencies to make their plans available
on their websites is to allow individuals to prepare in advance of
arriving at an agency location and seeking to use to a noncompliant DL/
ID for a REAL ID official purpose. This requirement does not prevent
agencies from also providing their plan, or information about their
plan, ``on-site'' for individuals who arrive and seek to use a
noncompliant DL/ID.
As a component of the individual agency plan, that agency may
choose to engage in a variety of outreach and engagement activities
relevant to their specific goals; but imposition of general
requirements in this rule cannot effectively account for the specific
needs of the plan, variation in agency location and operations, and
relevant audience. For example, in the informed compliance phased
enforcement model described above,\51\ agencies could provide a notice
to individuals presenting a noncompliant DL/ID. The notice could inform
the individual that their DL/ID is noncompliant with REAL ID
requirements and that they should contact their DMV for further
information regarding obtaining a REAL ID-compliant DL/ID. The notice
could also tell the individual what to expect if the individual
presents a noncompliant DL/ID and no other acceptable form of
identification in the future.
---------------------------------------------------------------------------
\51\ Supra III.D.
---------------------------------------------------------------------------
As noted above, DHS is engaged in a layered approach to improve
adoption, including heavy engagement with States that have low REAL ID
adoption rates, a public advertising campaign raising awareness of
upcoming REAL ID enforcement and the benefits of obtaining a REAL
ID,\52\ and communication with the travel industry.
---------------------------------------------------------------------------
\52\ DHS Launches ``Be Your REAL ID Self[hairsp]'' Public
Awareness Campaign, January 15, 2021, <a href="https://www.dhs.gov/real-id/news/2021/01/15/dhs-launches-be-your-real-id-self-public-awareness-campaign">https://www.dhs.gov/real-id/news/2021/01/15/dhs-launches-be-your-real-id-self-public-awareness-campaign</a>.
---------------------------------------------------------------------------
H. Length of Phased Enforcement Period
Comments: Multiple commenters expressed support for a phased
approach but highlighted concerns over the timeframe for the phased
enforcement period. Some commenters believe a phased enforcement period
of 2 to 3 years is appropriate. Other commenters expressed that DHS did
not provide sufficient data or evidence to support a 2-year phased
enforcement period. One commenter states a 2-year period is not long
enough based on adoption rates to date and the current proportion of
DL/ID holders that have a REAL ID-compliant DL/ID. The commenter notes
that 2 years might not allow for a significant increase in the
proportion of REAL ID-compliant DL/IDs and that Federal agencies may
experience the same operational risks at the end of the 2-year
enforcement period in the presence of significant REAL ID
noncompliance. Another commenter noted that many individuals have
obtained noncompliant marked DL/ID with validity periods of up to 8
years, depending on the state, and that these individuals would need to
visit a DMV in advance of the expiration of their current DL/ID in
order to obtain a REAL ID-compliant DL/ID. This commenter suggested
that DHS should, at a minimum, extend the phased enforcement period to
4 years, which would align with shortest validity period amongst most
populous states. Still other commenters proposed that Federal agencies
should be permitted to specify their own dates for achieving full
enforcement, that the phased enforcement period should be indefinite,
or that DHS consider future rulemaking to modify the phased enforcement
period if necessary.
DHS response: DHS appreciates the thoughtful comments it received
regarding the appropriate length of the phased enforcement period. In
determining the length of the phased enforcement period, DHS balanced
factors supporting a shorter period of phased enforcement with those
possibly warranting a longer period. In support of providing a shorter
phased enforcement period, DHS seeks to reduce the delay in realizing
the
[[Page 3486]]
security benefits associated with REAL ID, and additionally seeks to
ensure that imminent enforcement provides a compelling rationale for
members of the public to obtain a REAL ID-compliant DL/ID. In support
of a longer phased enforcement period, DHS seeks to provide sufficient
time for phased enforcement plans to exert an effect on public
perception, to limit negative enforcement impacts on agency operations
and the public, and to provide sufficient time for States to meet
increased demand. DHS has balanced these factors to arrive at an up to
2-year period available for phased enforcement. The 2-year period
allows agencies to develop plans that adjust for operational impacts
and provides individuals and States time to take necessary action. This
period allows States to adjust or reallocate resources to meet
increased demand over annual budgeting cycles, while still maintaining
a level of urgency necessary to prioritize such action. Allowing for
more than 2 years for phased enforcement would potentially further
delay the security benefits of REAL ID and would likely not provide
members of the public a compelling reason to prioritize obtaining a
REAL ID compliant DL/ID.
DHS also does not believe that it would be appropriate to allow
each Federal agency to specify the duration of their own phased
enforcement period beyond the 2 years permitted by this rule. Doing so
would permit agencies to use a phased approach indefinitely, avoiding
the implementation of the legal requirements associated with the REAL
ID act and regulations. Allowing a more lengthy phased enforcement
period than 2 years would also unnecessarily delay realization of the
security benefits of REAL ID. Finally, a common defined available
period for phased enforcement ensures consistent, accountable, and
transparent national action, while still allowing agencies to balance
operational needs, security benefits, and public impact to determine
the individualized timeframe of their own enforcement, within those
bounds.
As described above, one comment suggested that DHS should base the
phased enforcement period on the minimum length of the validity period
for DL/IDs in some states, rather than balancing various factors to
determine the enforcement. The commenter recommended 4 years because
this is the shortest validity period amongst more populous States.
Since there is not a single common validity period among all states,
the choice of a 4-year period rather than the many longer periods in
other States implicitly acknowledges the interests DHS has described
above compelling shorter phased enforcement periods. The diversity in
length of validity periods across States also suggests that there is
highly limited benefit to tying the phased enforcement period to one
particular validity period, as it would not be common to most members
of the public. In addition, the length of validity of DL/IDs has
limited utility in light of states ability to continue issuance of non-
REAL ID compliant DL/IDs. While DHS acknowledges that some individuals
who have recently obtained noncompliant DL/IDs may need to obtain a
REAL ID-compliant DL/ID before their noncompliant DL/ID expires, the
avoidance of this circumstance in some limited instances (namely, the
class of persons who have a DL/ID which would specifically expire
between 2 and 4 years from the REAL ID enforcement date) is not
compelling when compared to the broader interests DHS has considered in
providing a shorter period of phased enforcement, as described above.
Individuals may also continue to choose to obtain a noncompliant
DL/ID, even after the enforcement date, because they do not anticipate
needing an acceptable form of identification to verify their identity
for a defined official purpose or because they had another identity
document, such as a passport, that is widely accepted. DHS does not
believe it is appropriate to further delay the security benefits of
REAL ID based on individual's decisions to obtain noncompliant-marked
cards. For any individual holding a noncompliant DL/ID, who realizes
that they need to obtain a compliant DL/ID, a 2-year phased enforcement
period provides sufficient time for them to do so.
Additionally, some commenters discussing the appropriate maximum
phased enforcement period appear to assume that 100 percent of state-
issued DL/IDs in circulation must be REAL ID-compliant before the
Federal Government begins full card-based enforcement. This is
incorrect. In the 2008 final rule DHS assumed, in response to public
comments, that only 75 percent of DL/ID holders may ever obtain a REAL
ID-compliant DL/ID.\53\ Individuals may choose not to obtain a REAL ID-
compliant DL/ID for a number of reasons, including that they do not
anticipate needing identification for a REAL ID official purpose or
that they have another form of acceptable identification (e.g., a
passport). Although the balance point that the actual percentage of
REAL ID-compliant DL/IDs will eventually reach is uncertain (i.e., it
could be more or less than 75 percent), DHS anticipates that the number
of individuals presenting noncompliant DL/IDs for REAL ID official
purposes at the time agencies transition from phased enforcement to
full enforcement will have fallen and thereby reduce potential security
risks, operational disruption, or significant public impact.\54\
---------------------------------------------------------------------------
\53\ 73 FR 5272, 5322.
\54\ See infra table 5. DHS forecasts that the number of DL/IDs
that are REAL ID-compliant may rise to 83 percent by May 2027.
---------------------------------------------------------------------------
Finally, DHS appreciates the recommendation that DHS consider
future rulemaking to modify the phased enforcement period if necessary.
As with this rulemaking, DHS will leverage its rulemaking authority as
necessary to ensure successful implementation of the REAL ID
requirements.
I. Relevant Factors and Resources for Development and Approval of
Phased Enforcement Determinations by Federal Agencies
Comments: Some commenters expressed that the relevant factors DHS
identified and that the rule requires agencies to consider when
determining whether a phased approach is appropriate are overly broad
and allow Federal agencies too much discretion in determining whether
to implement a phased enforcement plan and what form the plan would
take, resulting in widely varying policies that may hinder compliance
and enforcement by individuals and agencies, respectively. These
commenters also expressed concern that with this discretion, agencies
may transition to full enforcement prior to the end of the 2-year
maximum phased enforcement period, arguing instead that REAL ID should
be repealed or extended outright for 2 years, citing general concerns
regarding the REAL ID Act unrelated to this rulemaking. One commenter
expressed concern about the adequacy of the TSA REAL ID Program's
resources to support the required DHS coordination of agencies' phased
enforcement plans. The commenter suggested that DHS should work to
achieve a common understanding of the REAL ID regulations across all
Federal agencies.
DHS response: Under this rule, DHS intentionally provides Federal
agencies significant discretion and flexibility to implement the REAL
ID requirements using an approach that is best suited to their
operations and contexts. Given the large number of Federal agencies,
their variety of missions and operational settings, and significant
variation in the
[[Page 3487]]
frequency and volume of interactions with the public in the context of
a defined REAL ID official purpose, DHS believes that attempting to
develop a uniform phased enforcement approach or more specific list of
factors is not feasible. Further, DHS believes that each individual
agency is in a better position than DHS to weigh factors and make
judgments regarding whether phased enforcement is appropriate and, if
so, what form an agency's phased enforcement plan should take. The rule
requires that agency plans be coordinated with DHS, which will allow
DHS to ensure a level of consistency, as appropriate, and oversight of
successful implementation of the REAL ID requirements.
As discussed above,\55\ this rule maintains the card-based
enforcement deadline and a regulatory default of full enforcement on
May 7, 2025, absent an affirmative determination by an agency to use a
phased enforcement plan. The rule is structured in this way to
facilitate each agency's transition to full implementation of REAL ID
requirements as soon as practicable. DHS anticipates that many agencies
will determine that a phased approach is not necessary or appropriate
and will transition to full enforcement immediately on May 7, 2025. For
agencies that do determinate that phased enforcement is appropriate,
DHS does not expect that all phased enforcement plans will take the
entire 2-year period. In some cases, agencies' phased enforcement plans
may provide for reaching full enforcement well in advance of May 5,
2027.
---------------------------------------------------------------------------
\55\ Supra III.C.
---------------------------------------------------------------------------
Finally, DHS notes that the TSA REAL ID Program is well-prepared to
support DHS coordination of agencies' phased enforcement plans. Since
Fall 2023, the TSA REAL ID Program Office has been hosting monthly
stakeholder engagement sessions with Federal agencies. During these
sessions, DHS has briefed Federal agencies on the REAL ID regulations'
card-based enforcement requirements and this rulemaking to allow
agencies the flexibility to implement card-based enforcement through a
phased approach, if appropriate. Through interagency discussion during
these sessions, DHS has built an understanding of which agencies may
consider phased enforcement plans and what form those plans may take.
Although the rule provides agencies broad discretion to structure their
phased enforcement plans in a manner best suited to their operations,
the rule requires agencies to coordinate their plans with DHS to ensure
that plans advance the objectives of the REAL ID regulations and
maintain consistent progress towards full enforcement. Through this
coordination, DHS will maintain oversight of successful implementation
of the REAL ID Act and ensure consistency, as appropriate.
J. Phased Enforcement Implementation Concerns
Comments: DHS received some comments related specifically to the
official purpose of boarding a federally regulated commercial aircraft
and card-based enforcement at TSA security screening checkpoints. These
commenters expressed concerns that beginning card-based enforcement at
TSA security checkpoints may increase passenger wait times and
congestion in the public areas of airports, potentially increasing the
burden on law enforcement officers who respond to issues arising at
airports. One commenter suggested that TSA should develop a plan that
clearly provides criteria for incidents that rise to level requiring
notification to law enforcement. Another commenter suggested that, as
part of phased enforcement, TSA should require individuals enrolled in
TSA Precheck[supreg] to present a REAL ID-compliant DL/ID to use the
TSA Precheck[supreg] lane. Multiple commenters recommended that TSA
develop a ``contingency'' plan to address travelers who may be unable
to use their noncompliant DL/ID to proceed through the screening
checkpoint.
DHS also received comments asserting that the proposed phased
approach would exacerbate costs to individuals and to the Federal
Government, for example, because individuals may need to update their
identification multiple times to comply with evolving standards. Other
commenters asked that DHS provide more detail about the consequences of
the rule; and concerns that phased enforcement will be ``increasingly
painful'' on the public and is thus not in their best interests.
DHS response: DHS appreciates the thoughtful comments received
regarding TSA's implementation of card-based enforcement. This rule
allows TSA to make a determination, after considering relevant factors,
that a phased approach to card-based enforcement may be appropriate.
Consistent with this rule, TSA is planning for a number of scenarios,
including considering a phased approach to enforcement. In making its
determination, TSA will take into account the relevant factors of
security, operational feasibility, and public impact, including TSA
checkpoint operations that involve interaction with law enforcement and
potential impact to travelers and transportation stakeholders.
Concerns regarding costs associated with compliance with
requirements of the REAL ID Act and regulation were addressed in the
2008 final rule and are outside the scope of this rulemaking. Regarding
the concern that a phased approach will add additional costs to
implementation because of a need to update identification multiple
times, DHS notes that the REAL ID card-based requirements, issued
through the 2008 final rule, were not amended by this rulemaking.
Further, nothing in this rule will impact the requirements for
issuance. The rule instead provides individuals potentially more time
to obtain a REAL ID compliant license if they plan to present their DL/
ID to an agency that is implementing the May 7, 2025, enforcement
deadline through a phased approach.
Regarding commenters' questions about the consequences of the rule,
if an individual attempts to provide a non-compliant DL/ID after May 7,
2025, and the agency does not have a phased enforcement plan in place,
the Federal agency may not accept that non-compliant DL/ID. Each
individual agency is responsible for determining access control
procedures at their facilities, and what alternatives may be available,
such as other acceptable forms of identification. If the agency does
have a phased enforcement plan in place, that plan must be posted on
the agency website. For example, an agency may only accept a non-
compliant DL/ID from an individual twice before it is rejected. In that
instance, the individual will be subject to the agency's published
plan.
DHS understands that some commenters are concerned that the phased
enforcement plans may be ``increasingly painful'' on the public.
However, without the flexibility for a phased approach, no Federal
agencies may accept non-compliant DL/IDs for REAL ID official purposes
on and after May 7, 2025. This rule provides flexibility to agencies,
allowing them to implement phased enforcement plans that provide more
time for individuals to obtain a REAL ID-compliant DL/ID.
Comments: Some commenters expressed concern that agencies' phased
enforcement plans may involve the collection of personal information
and privacy issues, particularly if agencies implement a phased
enforcement plan using the informed compliance with limits model. One
commenter expressed
[[Page 3488]]
the need for transparency and clear policies to protect PII.
DHS response: DHS appreciates these comments and acknowledges the
importance of privacy protections and safeguarding of personally
identifiable information. This rule only provides agencies with the
flexibility to implement the card-based enforcement deadline through a
phased approach and, as noted above.\56\ Any PII collected as part of
an agency's phased enforcement plan must be collected, maintained, and
used in accordance with all applicable Federal guidelines and
requirements related to collection of PII. Depending on the type and
manner of information collected, this will likely require agencies to
obtain an OMB-approved PRA information collection, or to prepare a
Privacy Threshold Analysis, Privacy Impact Assessment, System of
Records Notice, and other documentation to ensure adequate protections
are in place regarding the collection, storage, and use of PII.
---------------------------------------------------------------------------
\56\ Supra III.D.
---------------------------------------------------------------------------
Comments: One commenter expressed concern that Federal agencies'
implementation of phased enforcement plans may result in a burden on
States because individuals will seek information from State DMVs
regarding Federal card-based enforcement.
DHS response: DHS appreciates concerns related to increasing the
burden on States. Overall, DHS believes this rule lessens the burden on
States by allowing agencies to implement card-based enforcement using a
phased approach. In the event of backlogs at State DMVs due to
increased demand leading up to and after the deadline, this rule may
provide States additional time to make adjustments to meet increases in
demand for REAL ID-compliant cards. DHS acknowledges that States,
including DMV personnel, may receive inquiries regarding Federal
agencies' phased enforcement plans. To mitigate potential confusion
associated with phased enforcement, this rule requires agencies using a
phased approach to make their plans available on their website. It also
requires DHS to make available on the DHS REAL ID web page a list of
agencies that have coordinated phased enforcement plans. DHS welcomes
States to direct individuals with questions regarding Federal card-
based enforcement to the DHS REAL ID web page.
K. Alternative Approaches to Phased Enforcement
Comments: One commenter suggested an alternative approach to phased
enforcement based on the issuance date of the identification document.
In the suggested alternative, Federal agencies could choose to accept,
for a period up to 2 years after the card-based enforcement deadline,
noncompliant DL/IDs with issuance dates before May 7, 2025. After the
phased enforcement period, Federal agencies would only accept REAL ID-
compliant identification for official purposes.
DHS response: DHS appreciates this comment suggesting an
alternative to the phased enforcement approach taken by this rule. DHS
believes that if an agency determines that phased enforcement is
appropriate, the agency is in the best position to structure a phased
enforcement plan that meets the needs of its operational context. While
the rule requires agencies to coordinate phased enforcement plans with
DHS, the rule provides agencies broad discretion to design a plan that
will achieve a smooth transition to full enforcement within their
context. DHS provides some phased enforcement models that agencies may
consider,\57\ but agencies have discretion to develop their own models.
---------------------------------------------------------------------------
\57\ Supra III.D.
---------------------------------------------------------------------------
A phased enforcement plan based on DL/ID issuance date would be
compatible with the broad scope of discretion given to individual
agencies under this rule. That is, individual agencies could adopt such
a model of enforcement if they choose to do so based on their specific
circumstances. It is, however, not appropriate to adopt universally,
because DHS believes that each individual agency is in the best
position a phased enforcement plan that meets their own particular
circumstances. In light of agencies' varying operational contexts and
interaction with REAL ID requirements, DHS believes that providing
agencies broad discretion is preferable to universally mandating a
specific phased enforcement plan for every agency.
L. Costs of the Rule
Comment: One commenter expressed opposition to the rule, citing the
financial implications and estimated costs of the REAL ID Act. The
commenter stated an additional delay in card-based enforcement will
only exacerbate costs and demand further financial backing for the
eventual enforcement in a decades old policy, without citing specific
amounts in additional costs.
DHS response: The rule results in an estimated $1.73 million in
quantifiable costs over 2 years to Federal agencies and DHS, which are
separate, and a fraction of the estimated costs related to the REAL ID
Act. In addition, the rule will help individuals without REAL ID-
compliant identification, or an acceptable alternative, avoid costs
that they may face when attempting to use a DL/ID for an official
purpose during the phased enforcement period.
DHS does not possess data on State expenditures, but as all States
have met the state-based deadline for compliance, many of the costs
associated with implementation of the REAL ID Act have already been
incurred and will not be impacted by this rule. States and individuals
would continue to incur costs related to obtaining REAL IDs; with or
without this rule, which may be impacted by the rate at which they
occur. As stated in the rule, DHS anticipates providing the opportunity
for a phased approach may actually reduce and/or spread overall costs
(rather than processing a higher number of REAL ID requests in a
shorter period of time and consequences of a large portion of the
population not having acceptable ID).
V. Statutory and Regulatory Analyses
A. Administrative Procedure Act
The Administrative Procedure Act (APA), 5 U.S.C. 553(d) requires
publication of an amendment in the Federal Register at least 30 days
before the effective date of the final rule, unless good cause, as
prescribed in the APA, is found. Here, DHS has concluded there is good
cause to make this rule effective immediately. In determining whether
the good cause exception of section 553(d) may be invoked to allow an
immediate publication date, an agency is required to balance the
necessity for immediate implementation against principles of
fundamental fairness which require that all affected persons be
afforded reasonable time to prepare for the effective date of the
rule.\58\ Agencies may also dispense with the delayed effective date
requirement for rules that ``recognize an exemption or relieve[ ] a
restriction.'' \59\
---------------------------------------------------------------------------
\58\ United States v. Gavrilovic, 551 F.2d 1099 (8th Cir. 1977)
(noting that the ``legislative history of the APA'' indicates that
the waiting period ``was not intended to unduly hamper agencies from
making a rule effective immediately,'' but intended ``to `afford
persons affected a reasonable time to prepare for the effective date
of a rule . . . or to take other action which the issuance may
prompt' '' (citing S. Rep. No. 752, 79th Cong., 1st Sess. 15 (1946);
H.R. Rep. No. 1980, 79th Cong., 2d Sess. 25 (1946))).
\59\ 5 U.S.C. 553(d)(1). See Independent U.S. Tanker Owners
Commission v. Skinner, 884 F.2d 587, 591 (D.C. Cir. 1989).
---------------------------------------------------------------------------
Here, finalizing the provisions of this rule immediately may serve
to lessen a burden on the public by providing agencies more time before
the May 7,
[[Page 3489]]
2025, enforcement date to determine whether to implement phased
enforcement plans and, if using a phased enforcement plan, to develop
and communicate that plan to the public. If agencies choose to
implement card-based enforcement using phased enforcement plans, the
public may be provided with additional time beyond the enforcement date
to obtain a REAL ID-compliant DL/ID, reducing potential negative
impacts on May 7, 2025. Further an immediate effective date would not
result in unfairness because the REAL ID requirements of the 2008 final
rule are already in effect and this rule does not alter any of the
substantive REAL ID requirements or the enforcement date. Therefore,
there are no new requirements that States or the public need to prepare
to meet because of this final rule. The purpose of the waiting period
is ``to give affected parties time to adjust their behavior before the
final rule takes effect.'' \60\ As this rule does not alter the
substantive REAL ID requirements or enforcement date, a waiting period
is not necessary because this rule does not change the date by which
the public must adjust their behavior. Allowing this rule to become
immediately effective does not alter the May 7, 2025, date on which
agencies will begin card-based enforcement, so finalizing the
provisions in this rule does not require anyone to change their conduct
or to take any particular steps in advance of the effective date.\61\
---------------------------------------------------------------------------
\60\ Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th
Cir. 1992).
\61\ See United States v. Gavrilovic 551 F.2d 1099 (8th Cir.
1977).
---------------------------------------------------------------------------
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DHS consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of 44 U.S.C. 3507(d), obtain approval from the OMB for each
collection of information it conducts, sponsors, or requires through
regulations. This final rule itself does not directly call for new
collection of information under the PRA as the rulemaking relates to
Federal agency submission of phased enforcement plans which are not
covered under the PRA. However, agencies that utilize a phased
enforcement plan, depending on the requirements associated with their
respective plan, will likely need to submit or modify an OMB
information collection request.
C. Economic Impact Analyses
1. Regulatory Impact Analysis Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order (E.O.) 12866 (Regulatory Planning and
Review),\62\ as affirmed by E.O. 13563 (Improving Regulation and
Regulatory Review),\63\ and as amended by E.O. 14094 (Modernizing
Regulatory Review) \64\ directs each Federal agency to propose or adopt
a regulation only upon a reasoned determination that the benefits of
the intended regulation justify its costs. Second, the Regulatory
Flexibility Act of 1980 (RFA) requires agencies to consider the
economic impact of regulatory changes on small entities.\65\ Third, the
Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies to
prepare a written assessment of the costs, benefits, and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local, or Tribal governments, in
the aggregate, or by the private sector, of $100 million ($183 million
in 2023 dollars) or more annually (adjusted for inflation).\66\
---------------------------------------------------------------------------
\62\ 58 FR 51735 (Oct. 4, 1993).
\63\ 76 FR 3821 (Jan. 21, 2011).
\64\ 88 FR 21879 (Apr. 11, 2023).
\65\ Public Law 96-354, 94 Stat. 1164 (Sept. 19, 1980) (codified
at 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA)).
\66\ Public Law 104-4, 109 Stat. 66 (Mar. 22, 1995) (codified at
2 U.S.C. 1181-1538).
---------------------------------------------------------------------------
2. Executive Orders 12866, 13563, and 14094 Assessment
Executive Order 12866 (Regulatory Planning and Review), as affirmed
by Executive Order 13563 (Improving Regulation and Regulatory Review)
and amended by Executive Order 14094 (Modernizing Regulatory Review),
directs agencies to assess the costs and benefits of available
regulatory alternatives and, if regulation is necessary, select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasizes the importance
of quantifying costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
DHS summarizes the findings:
<bullet> In accordance with E.O. 12866, the OMB has designated this
rulemaking a ``significant regulatory action'' as defined under section
3(f)(1) of E.O. 12866, as amended by E.O. 14094. Accordingly, the rule
has been reviewed by OMB.
<bullet> The Secretary, pursuant to 5 U.S.C. 605(b), certifies that
the final rule will not have a significant economic impact on a
substantial number of small entities. The final rule is only applicable
to Federal Government agencies, who under the RFA are not considered
small entities.
<bullet> This final rule is not likely to result in the expenditure
by State, local, or Tribal governments, in the aggregate, or by the
private sector, of $100 million ($183 million in 2023 dollars) or more
annually (adjusted for inflation) such that a written statement is not
required under UMRA.
a. OMB A-4 Statement
The OMB A-4 Accounting Statement presents the annualized costs and
benefits, as well as the qualitative benefits of the final rule.
Table 1--OMB Circular A-4 Accounting Statement
[$ Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimates Units
--------------------------------------------------------------------
Category Year Discount Time Notes
Primary Low High dollar rate horizon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized......................... N/A N/A N/A N/A 2% N/A Not Quantified.
Annualized Quantified, But Non-Monetized..... N/A N/A N/A N/A 2% N/A Not Quantified.
[[Page 3490]]
Unquantified................................. The final rule will provide Federal agencies the flexibility to
decide whether to enforce the REAL ID card-based regulations in a
phased manner that may reduce security vulnerabilities,
operational disruption and public impact related to official
Federal purposes. A phased approach will not unnecessarily delay
REAL ID enforcement for those Federal agencies ready to fully
implement on the card-based enforcement deadline. A phased
approach will also allow individuals more time to obtain a REAL ID
and may help mitigate potential application backlogs at State
licensing agencies. Furthermore, a phased approach may reduce
potential queuing and associated delays at access points.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized......................... $0.87 N/A N/A 2023 2% 2 Years
Annualized Quantified, But Non-Monetized..... N/A N/A N/A N/A 2% N/A Not Quantified.
----------------------------------------------------------------------------------------------------------
Unquantified................................. Full security benefits associated with REAL ID rule will not be
realized, as a result of agencies implementing a phased approach,
until full enforcement occurs. Federal agencies will also incur
costs related to plan implementation, including, but not limited
to training personnel on the policies of the plan, and efforts to
inform individuals of the new identity verification policies
related to plans. Individuals may also incur costs to become aware
of phased enforcement plans and respond accordingly.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized Federal Budgetary N/A N/A N/A N/A 2% N/A Not Quantified.
Transfers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
From/To...................................... From:
To:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other Annualized Monetized Transfers......... N/A N/A N/A N/A 2% N/A Not Quantified.
--------------------------------------------------------------------------------------------------------------------------------------------------------
From/To...................................... From:
To:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Net Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized Net Benefits............ N/A N/A N/A N/A 2% N/A Not Quantified.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects
--------------------------------------------------------------------------------------------------------------------------------------------------------
State, Local, and/or Tribal Government....... None.
Small Business............................... None.
Wages........................................ None.
Growth....................................... Not measured.
--------------------------------------------------------------------------------------------------------------------------------------------------------
b. Need for regulation
In January 2008, DHS published the Minimum Standards for Driver's
Licenses and Identification Cards Acceptable by Federal Agencies for
Official Purposes Final Rule to implement the requirements of the Act.
Since the publication of the original Final Rule, DHS extended the
original compliance date multiple times in response to challenges in
REAL ID adoption, including but not limited to, the COVID-19 pandemic.
In accordance with the Final Rule published in March 2023, Federal
agencies are required to commence card-based enforcement on May 7,
2025, at which point Federal agencies may not accept for official
purposes a license or identification card issued by a State unless that
license or card was issued in accordance with the REAL ID standards by
a REAL ID-compliant jurisdiction.\67\
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\67\ See 88 FR 14473 (Mar. 9, 2023), codified at 6 CFR 37.5.
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DHS does not intend to extend the card-based enforcement deadline
further and intends to commence enforcement of the REAL ID card-based
requirements on May 7, 2025. However, based on current adoption rates
of REAL ID-compliant DL/IDs and the projected number of compliant DL/
IDs in circulation by the card-based enforcement date (discussed in the
succeeding section), DHS believes this rulemaking is necessary to
provide flexibility to mitigate potential risks related to security,
operational feasibility, and public impact.
Without the flexibility the final rule permits, agencies may be
faced with serious concerns that immediate implementation of full
enforcement may create including security vulnerabilities, operational
challenges, and disruption of Government services. For instance, there
could be cases where an agency needs to conduct work with a subject-
matter expert or specialist that does not have REAL ID-compliant
identification and is therefore unable to access the Federal facility.
Barring a phased enforcement plan, the agency may need to come up with
alternate accommodations, which could include holding meetings or
presentations offsite or standing up a virtual option. These options
may result in additional costs that would otherwise not be incurred if
the agency was operating under a phased enforcement plan. Additionally,
absent a phased enforcement plan, individuals without a REAL ID-
compliant DL/ID or acceptable alternative will not have an acceptable
form of identification to board federally regulated aircraft upon card-
based enforcement. This represents a large use
[[Page 3491]]
case for REAL ID. These individuals will not have an acceptable form of
identification to access the security checkpoint which could result in
backlogs and other negative outcomes on travel (e.g., delayed or missed
flights). This may also have a potential impact on the customer
experience and air travel. Long lines, confusion, and frustrated
travelers at the checkpoint may also increase security risks.\68\ Given
the current level of REAL ID adoption across various States, the start
of card-based enforcement may also create an increased demand on States
to issue REAL IDs, which could result in strained resources and a
potential delay of application processing time or backlog. Additional
disruptive impacts to those who currently rely upon non-REAL ID-
compliant DL/IDs for official Federal purposes may also occur.
---------------------------------------------------------------------------
\68\ The requirements of the REAL ID Act and regulations
specifically apply to Federal agencies accepting DL/IDs for official
purposes. To the extent air carriers also require individuals to
present a compliant DL/ID for check-in or to drop off luggage, lines
and crowding may also occur at ticket counters and baggage drop-off
locations at airports. See U.S. Department of Homeland Security.
``Soft Targets and Crowded Places Security Plan Overview'' (May
2018). Available at <a href="https://www.cisa.gov/sites/default/files/publications/DHS-Soft-Target-Crowded-Place-Security-Plan-Overview-052018-508_0.pdf">https://www.cisa.gov/sites/default/files/publications/DHS-Soft-Target-Crowded-Place-Security-Plan-Overview-052018-508_0.pdf</a>. Accessed on Apr. 17, 2024.
---------------------------------------------------------------------------
Federal agencies that determine an immediate transition to full
enforcement would raise concerns related to security, operational
feasibility, or negatively impact the public, will benefit from phased
enforcement, and will be able to implement a phased enforcement plan,
coordinated with DHS, to provide a smoother transition to full card-
based enforcement.\69\ This final rule will also enable these agencies
to minimize negative impact to individuals who do not have REAL ID-
compliant DL/IDs and provide States time to issue and individuals time
to obtain REAL ID-compliant DL/IDs during initial phases of
enforcement.
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\69\ Card-based enforcement should not impact access to Federal
facilities that do not require identification (e.g., public areas of
the Smithsonian). Card-based enforcement also should not impact
public services that require identification for purposes other than
an official purpose as defined by the Act and regulation (e.g.,
applying for or receiving Federal benefits is not a REAL ID official
purpose). However, in cases where provision of a public service does
involve a REAL ID official purpose, agencies should consider the
extent to which an immediate transition to full enforcement will
impact their ability to provide that service.
---------------------------------------------------------------------------
c. Baseline Summary
The baseline represents DHS' best assessment of what the world will
be like absent this regulatory action.\70\
---------------------------------------------------------------------------
\70\ Office of Information and Regulatory Affairs. Circular No.
A-4. November 9, 2023. <a href="https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf</a>. Accessed February 12, 2024.
---------------------------------------------------------------------------
Absent this regulatory action, beginning on May 7, 2025 (card-based
enforcement date), all Federal agencies will be prohibited from
accepting non-REAL ID-compliant State-issued DL/IDs for REAL ID
official purposes.\71\ If an individual does not have a REAL ID-
compliant DL/ID, the individual may use another acceptable form of
identification as determined by individual agencies' identity
verification and access policies.\72\ In accordance with the 2008 Final
Rule, enforcement on the card-based enforcement date will be applied
unilaterally, across all respective agency locations in the United
States and its territories including, accessing Federal facilities,
boarding federally regulated commercial aircrafts (i.e., TSA airport
security checkpoints), and entering nuclear power plants.
---------------------------------------------------------------------------
\71\ The Act does not require individuals to present
identification where it is not currently required to access a
Federal facility (such as to enter the public areas of the
Smithsonian).
\72\ Alternate acceptable forms of identification may include,
and are not limited to, U.S. passports, and passport cards.
---------------------------------------------------------------------------
DHS estimates that by the card-based enforcement date,
approximately between 61 and 66 percent of all State-issued DL/IDs will
be REAL ID-compliant based on adoption data provided by States, to DHS,
through January 2024. The lower-end values represent a monthly adoption
rate similar to current rates through card-based enforcement.\73\
However, DHS expects that the adoption rate may also increase ahead of
the card-based enforcement date as a result of both natural adoption
prior to enforcement and efforts by DHS to drive awareness and action.
Ahead of the card-based enforcement deadline, DHS plans to launch
additional phases of its public service campaign ``Be Your REAL ID
Self[hairsp]'', which in part, provides toolkits for Government and
industry partners. To account for this increased rate of adoption, DHS
uses a Compounded Monthly Growth Rate of 1.03 percent (compared to a
current 0.56 percent CMGR) for its higher-end value of 66 percent of
REAL ID compliant DL/IDs by the card-based enforcement date.
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\73\ In section IV(B)(2)(d)(4), Forecast of REAL ID Compliance
Under Phased Enforcement, DHS estimates 61.2 percent of REAL ID
Compliant DL/IDs by applying a 0.56 percent compounded monthly
growth rate which represents the adoption of REAL IDs between
January 2023 and January 2024. This represents a lower-end forecast
where DHS assumes the monthly adoption rate of REAL IDs remains
unchanged leading up to the card-based enforcement date of May 7,
2025. DHS also presents a high-end forecast of 66.0 percent of REAL
ID compliant DL/IDs that uses a compounded monthly growth rate of
1.03 percent and represents the adoption of REAL IDs between January
2020 and January 2024 which captures periods of high and low
adoption of REAL IDs.
---------------------------------------------------------------------------
As a result, approximately between 34 percent and 39 percent of DL/
IDs in circulation will be non-compliant (either legacy or non-
compliant marked DL/IDs). Individuals with non-REAL ID-compliant DL/IDs
will not be permitted to use those DL/IDs to access Federal facilities
nationwide, including the security checkpoint at airports, unless they
are able to present an approved alternate form of identification such
as a passport.\74\
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\74\ In 2008, DHS issued the Minimum Standards for Driver's
Licenses and Identification Cards Acceptable by Federal Agencies for
Official Purposes Final Rule. In the Regulatory Evaluation for the
Final Rule, DHS noted that 25 percent of the population already held
a valid passport and that in a few years' time the Department of
State anticipated that the figure would increase to approximately 33
percent. As of 2023, the Department of State reports that
160,668,889 valid passports (including passport books) are in
circulation (<a href="https://travel.state.gov/content/travel/en/about-us/reports-and-statistics.html">https://travel.state.gov/content/travel/en/about-us/reports-and-statistics.html</a>). Over the 10-year period of 2014 to
2023, approximately 13.24 percent of passports issued were passports
cards. The Department of State notes that one customer may also have
both a passport book and card which counts as two valid passports.
To prevent double counting for individuals that hold both a passport
book and a passport card, DHS multiplies 160,668,889 by 1 minus
13.24 percent to estimate 139,396,328 passports. Using the Census
Bureau's projected population for 2023, DHS estimates that
approximately 41 percent of the population has a passport. DHS
acknowledges that some percentage of individuals with REAL-ID
compliant DL/IDs may also hold a passport and thus there is
uncertainty with how many individuals with non-compliant IDs will be
able to use a passport as an alternate form of identification.
---------------------------------------------------------------------------
d. Adoption of REAL ID-Compliant DL/IDs
Prior to the onset of the COVID-19 pandemic in the United States in
October 2019, DHS estimated that approximately 33 percent, or 90.9
million of the 274.8 million DL/IDs in circulation, were REAL ID-
compliant.\75\ In April 2020, DHS issued an amended final rule to
further delay the card-based enforcement date from October 1, 2020, to
October 1, 2021. DHS noted that the COVID-19 pandemic had caused
significant disruption citing that State and local government offices,
including the DMV, have restricted all but the most essential services,
and that in some cases, had been temporarily closed to the public. In
October 2020, national REAL ID compliance was approximately 41
percent.\76\ Three years later, in
[[Page 3492]]
October 2023, the national REAL ID compliance rate increased to
approximately 56 percent.\77\ Despite a modest increase in the number
of compliant REAL IDs between October 2023 and January 2024, the
percentage of REAL ID DL/ID remains unchanged at 56 percent over this
time period, with the remaining 44 percent of State-issued DL/IDs being
noncompliant.\78\
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\75\ DHS began to collect data from the states including, total
number of DL/IDs, number of REAL IDs, number of non-compliant cards,
and number of ``legacy'' cards in July 2019. Monthly reporting
subsequently began in October 2019.
\76\ 41.08 Percent of REAL ID-compliant IDs in October 2020 =
112,807,718 REAL IDs / 274,611,013 Total IDs in Circulation.
\77\ 56.11 Percent of REAL ID-compliant IDs in October 2023 =
160,039,272 REAL IDs / 285,246,641 Total IDs in Circulation.
\78\ 56.42 Percent of REAL ID-compliant IDs in January 2024 =
162,111,658 REAL IDs / 287,321,596 Total IDs in Circulation.
---------------------------------------------------------------------------
However, individual State compliance includes a wider range of
rates. Table 2 presents REAL ID compliance over time based on the 56
licensing jurisdictions percentage of REAL IDs issued relative to the
total number of IDs in circulation for each jurisdiction. As shown in
the table, State compliance rates have generally increased over time.
For instance, the number of licensing jurisdictions where the
percentage of REAL IDs, relative to all DL/IDs in circulation, is
greater than 75 percent has increased from eight jurisdictions in
October 2019 to 17 in January 2024. Similarly, the number of licensing
jurisdictions where the percentage of REAL IDs, relative to all DL/IDs
in circulation, is less than 25 percent has decreased from 31 in
October 2019 to 9 in January 2024.
Table 2--REAL ID Compliance Over Time
----------------------------------------------------------------------------------------------------------------
Number of licensing jurisdictions
Range (REAL IDs as a percentage of total IDs in circulation ---------------------------------------------------
by jurisdiction) October October October January
2019 2020 2023 2024
----------------------------------------------------------------------------------------------------------------
0%-24%...................................................... 31 22 12 9
25%-49%..................................................... 11 15 16 18
50%-74%..................................................... 6 9 12 12
75%-100%.................................................... 8 10 16 17
----------------------------------------------------------------------------------------------------------------
1. Compounded Monthly Growth Rates (CMGR)
DHS began receiving monthly data on the number of REAL IDs for each
of the 56 licensing jurisdictions in October 2019 (and has monthly data
through early 2024). Using this data, DHS calculates the growth, or
increase, in number of REAL IDs month over month, relative to the total
number of DL/IDs in circulation. Using the historic adoption data, DHS
calculates CMGRs which represents growth over various intervals of
time. In subsequent sections, DHS uses CMGRs to forecast REAL ID
compliance.
In the first 6 months that DHS began to receive monthly data,
between October 2019 and March 2020, the CMGR of REAL IDs was
approximately 2.5 percent. Between April and May of 2020, the CMGR of
REAL IDs had decreased to 0.5 percent. The CMGR later increased to
approximately 2.0 percent between June 2020 and October 2020. Over the
3 years following October 2020, the CMGR of REAL IDs was 1.3 percent
between October 2020 and September 2021, 0.9 percent between October
2021 and September 2022, and 0.8 percent between October 2022 and
September 2023. Over the 12-month period, between January 2023 and
January 2024, the national CMGR for the adoption of REAL IDs was 0.56
percent.\79\
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\79\ 0.56 percent CMGR (January 2023 through January 2024) =
((162,111,658 REAL IDs in January 2024 / 151,652,714 REAL IDs in
January 2023) [supcaret] (1 / 12) - 1).
---------------------------------------------------------------------------
2. Projection of Total Number of DL/IDs
DHS leverages monthly data received from the 56 licensing
jurisdictions to estimate the total number of DL/IDs in future months.
The report provides DHS with the total number of DL/IDs in circulation,
including the proportions of REAL-ID compliant, ``legacy'' cards, and
non-compliant cards. Based on the January 2024 data from the licensing
jurisdictions, there were 287,321,596 DL/IDs in circulation.
DHS uses this value as a starting overall DL/ID population. Next,
DHS leverages the U.S. Census Bureau's Monthly Population Estimates for
the United States to estimate the total U.S. population and proportion
with a DL/ID. DHS first estimates the total population using Census
Bureau annual population data to calculate a compound annual growth
rate (CAGR) of 0.60 percent in the U.S. population from 2012 to
2022.\80\ DHS divides the CAGR of 0.60 percent by 12 to calculate a
simple compound monthly growth rate (CMGR) of 0.05 percent. DHS then
uses Census Bureau monthly population estimates through December 2023,
and applies the simple CMGR of 0.05 percent to forecast the population
for each month through October 2027.\81\ DHS estimates a total
population of 355,966,451 in January 2024.
---------------------------------------------------------------------------
\80\ U.S. Census Bureau (December 2019). Annual Estimates of the
Resident Population for the United States: April 1, 2010, to July 1,
2019 (NST-EST2019-01). Retrieved from <a href="https://www.census.gov/data/tables/time-series/demo/popest/2010s-national-total.html">https://www.census.gov/data/tables/time-series/demo/popest/2010s-national-total.html</a>. Accessed
on May 12, 2023.
\81\ U.S. Census Bureau (December 2023). Monthly Population
Estimates for the United States: April 1, 2020, to December 1, 2024
(NA-EST2023-POP). Retrieved from <a href="https://www.census.gov/data/tables/time-series/demo/popest/2020s-national-total.html">https://www.census.gov/data/tables/time-series/demo/popest/2020s-national-total.html</a>. Accessed on
January 4, 2024.
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Last, DHS divides the total number of DL/IDs by the total
population. As of January 2024, 85.5 percent of the population held a
driver's license or identification card.\82\ DHS assumes this
proportion of the population holds true through October 2027 (some
portion of the adult population may not need a DL/ID, along with most
of the population under the legal driving age). DHS multiplies the 85.5
percent proportion by the projected population each month to estimate
the total number of DL/IDs in circulation.
---------------------------------------------------------------------------
\82\ 85.5 percent of the population as DL/ID holders in January
2024 = 287,321,596 (DL/IDs in circulation as of January 2024) /
355,966,451 (total population in January 2024).
---------------------------------------------------------------------------
3. Forecast of REAL ID Compliance Under Status Quo
If full card-based enforcement, absent phased enforcement, were to
take place on May 7, 2025, DHS assumes that the adoption of REAL ID-
compliant DL/IDs will spike leading up to, and continuing for a period
of time past, the card-based enforcement date as individuals, who may
otherwise have held off on acquiring a REAL ID-compliant DL/IDs, will
take steps to ensure they will not be turned away from Federal
facilities where a REAL ID will be required for official purposes.
DHS assumes such a spike will be similar to a 23 percent increase
that the Department of State experienced in
[[Page 3493]]
passport applications after implementation of the first phase of the
Western Hemisphere Travel Initiative (WHTI).\83\ Specifically, in
fiscal year 2007, the Department of State experienced an influx of
passport applications prior to, and after, the implementation of its
first phase of the WHTI, which established new document requirements
for travelers entering the United States from within the Western
Hemisphere. At the time, the Department of State forecasted it would
receive approximately 15 million passport applications in the 2007
fiscal year, however, it ended up receiving approximately 18.6 million
passport applications, an approximate 23 percent increase over the
original estimate.\84\
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\83\ The populations affected by WHTI and REAL ID, while not
exact, are similar in the sense that both initiatives affect
identity documentation required by the traveling public and are not
intended to represent the population of those who are obtaining
government services. DHS believes WHTI represents a situation
similar enough to REAL ID to serve as a proxy absent better
information. See 71 FR 68412 (November 24, 2006).
\84\ Government Accountability Office (GAO) (July 2008). State
Department: Comprehensive Strategy Needed to Improve Passport
Operations. GAO-08-891, page 16. Retrieved from <a href="https://www.gao.gov/assets/gao-08-891.pdf">https://www.gao.gov/assets/gao-08-891.pdf</a>. Accessed on March 15, 2024.
---------------------------------------------------------------------------
As aforementioned, in January 2024, 56.42 percent or 162.1 million
of the 287.3 total IDs in circulation are REAL ID-compliant. Based on
the data range of January 2023 through January 2024, DHS expects that
through April 2024, the 0.56 percent CMGR for the adoption of REAL IDs
to remain unchanged,\85\ bringing the percentage of REAL IDs relative
to all IDs in circulation to 57.3 percent. In the year leading up to
the card-based enforcement deadline, DHS considers a similar situation
as the influx of passports leading up to, and through, the
implementation of WHTI, and applies a 23 percent increase in the
adoption of REAL IDs (equivalent to a CMGR of 1.61 percent).\86\ Using
this methodology,\87\ by May 2025, approximately 70 percent or 202.7
million of the total 289.6 million IDs in circulation would be REAL-ID
compliant.\88\
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\85\ See footnote 63.
\86\ Based upon the WHTI scenario, DHS assumes a 23 percent
increase to the total number of REAL IDs in April 2024 (164,837,213
REAL IDs), approximately one-year prior to card-based enforcement.
TSA assumes the 23 percent increase will be spread across the 13
months leading up to card-based enforcement on May 7, 2025.
202,749,772 REAL IDs in May 2025 = 164,837,213 REAL IDs in April
2024 x (1 + 23 Percent). Since the 23 percent increase is spread out
over the year leading up to the card-based enforcement date, DHS
uses the resulting number of REAL IDs in May 2025 to calculate a
1.61 Percent CMGR. 1.61 Percent CMGR = (202,749,772 REAL IDs in May
2025 / 164,837,213 REAL IDs in April 2024) [supcaret] (1 / 13)-1).
\87\ Under the status quo, which would result in full, and
immediate, card-based enforcement on May 7, 2025, DHS estimates a 23
percent increase in the adoption of REAL IDs in the year leading up
to card-based enforcement, adopted based on the implementation of
WHTI. Absent this influx, and under Phased Enforcement beginning May
7, 2025, DHS evaluates two scenarios in section IV(B)(2)(d)(4),
Forecast of REAL ID Compliance Under Phased Enforcement. First, a
lower estimate which assumes no changes to the 0.56 percent CMGR
which results in 61.2 percent of all DL/IDs in May 2025 being REAL
ID compliant. Second, a higher estimate which uses a 1.03 percent
CMGR resulting in 66 percent of all DL/IDs being REAL ID compliant
in May 2025.
\88\ 70.00 Percent of REAL IDs in May 2025 = 202,749,772 REAL
IDs in May 2025 / 289,641,636 IDs in Circulation in May 2025.
---------------------------------------------------------------------------
Following the card-based enforcement date, DHS expects the spike to
remain in place for approximately 4 to 5 months as individuals work to
secure appointments with their local DMV.\89\ DHS applies the 1.61
percent CMGR to estimate the percentage of REAL IDs in October 2025.
DHS estimates approximately 75 percent of DL/IDs in circulation would
be REAL ID-compliant.\90\
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\89\ The WHTI was implemented in two phases with the second
impacting land and seaports beginning at the end of January 2008
(2008 fiscal year). As such, following the initial spike in passport
applications within fiscal year 2007, the Department of State also
issued a higher than historical number of passports in fiscal year
2008 despite the total number of passports issued being lower than
the preceding year. (Department of State. Reports and Statistics.
U.S. Passports Issued Per Fiscal Year (1996-2023). Retrieved from
<a href="https://travel.state.gov/content/travel/en/about-us/reports-and-statistics.html">https://travel.state.gov/content/travel/en/about-us/reports-and-statistics.html</a>. Accessed on March 15, 2024.) Absent the final rule,
following the card-based enforcement date, full enforcement would
begin so there would be no similar resurgence as seen with WHTI
implementation. However, a similar spike may be seen with the
implementation of the phased enforcement rule. Under which,
following the initial spike, there will likely be a decrease in
adoption rates, before a second spike leading up to the May 2027
full compliance date.
\90\ 75.09 Percent of REAL IDs Compliant in October 2025 =
218,052,964 REAL IDs in October 2025 / 290,370,483 IDs in
Circulation in October 2025.
---------------------------------------------------------------------------
To forecast beyond October 2025, under the status quo of full
enforcement beginning May 2025, DHS assumes a 50-percent decrease of
the initial spike in the adoption of REAL IDs between October 2025 and
October 2026.\91\ DHS estimates that by October 2026, one and a half
years after the card-based enforcement deadline, approximately 83
percent of DL/IDs in circulation would be REAL ID-compliant.\92\
Subsequently, to estimate the percentage of REAL IDs relative to all
DL/IDs in circulation, 2 years after the card-based enforcement date,
DHS assumes an additional 50-percent decrease in the adoption of REAL
IDs between October 2026 and October 2027.\93\ Under this assumption,
DHS estimates that approximately 87 percent of DL/IDs would be REAL ID-
compliant by October 2027.\94\
---------------------------------------------------------------------------
\91\ 11.5 Percent Increase in REAL IDs (One Year After Card-
Based Enforcement) = (23 Percent Initial Surge / 2) x 100.
Equivalent to a 0.91 Percent CMGR. 0.91 Percent CMGR = ((243,121,919
REAL IDs in October 2026 / 218,052,964 REAL IDs in October 2025)
[supcaret] (1 / 12)-1).
\92\ In the Regulatory Evaluation for the 2008 Final Rule, DHS
assumed 75 percent of the population that hold DL/IDs would seek to
obtain a REAL ID. DHS describes this assumption further in the
subsequent section, however, the 83 percent compliance rate by
October 2026, roughly over one-and-a-half-years post card-based
enforcement exceeds the 75 percent assumption. DHS notes that the
adoption rate for REAL ID may decrease when REAL ID reaches a
natural adoption threshold.
\93\ 5.75 Percent Increase in REAL IDs = (11.5 Percent Initial
Surge / 2) x 100. Equivalent to a 0.47 Percent CMGR. 0.47 Percent
CMGR = ((257,101,923 REAL IDs in October 2027 / 243,121,919 REAL IDs
in October 2026) [supcaret] (1 / 12)-1).
\94\ Supra note 76.
---------------------------------------------------------------------------
DHS assumes that once the percentage of REAL IDs, relative to all
DL/IDs in circulation reach a natural adoption threshold or equilibrium
\95\ (with all those who want/need a REAL ID largely have them or an
alternate form of identification), which DHS currently assumes as 75
percent, the increase in the proportional value over subsequent months
and years would be minimal.\96\ In 2008, DHS issued the Minimum
Standards for Driver's Licenses and Identification Cards Acceptable by
Federal Agencies for Official Purposes Final Rule. The NPRM which
preceded the 2008 Final Rule included DHS's assumption that 100 percent
of the population that hold DL/IDs would seek to obtain a REAL ID.
However, in the 2008 Final Rule, the assumption was revised to 75
percent.\97\ DHS noted that the 100 percent assumption was unrealistic
if States do not require all applicants to obtain REAL IDs. DHS further
cited, that if States offer a choice of either compliant or non-
compliant licenses to applicants, that some portion of the population
will choose to receive non-compliant licenses because they may not need
a REAL ID for Federal
[[Page 3494]]
official purposes or they may already possess a compliant alternate
form of identification.\98\ While DHS maintains the 75 percent
assumption from the 2008 Final Rule, DHS acknowledges the uncertainty
and that the natural threshold for REAL ID compliance may be above or
below 75 percent.
---------------------------------------------------------------------------
\95\ The natural adoption threshold or equilibrium is the
estimated proportion at which TSA assumes most people who want a
REAL ID largely have them, and it is unlikely to change much in the
absence of any changes in conditions. This accounts for some portion
of the population that chooses not to obtain a REAL ID (as States
continue to offer non-compliant DL/IDs).
\96\ DHS anticipates future renewal surges associated with
existing REAL-ID holders, and additional initial adoptions
associated with population growth.
\97\ In 2008, DHS noted that approximately 25 percent of the
population held a valid passport. Furthermore, DHS noted that 20
percent of the population has never flown on a commercial plane, and
47 percent flies rarely or never. Combining the two groups, at least
40 percent of the population would not need to obtain a REAL ID.
However, DHS assumed some proportion of the combined grouping would
obtain a REAL ID regardless, reducing the estimate to 25 percent.
Subtracting this 25 percent estimate from the initial 100 percent
assumption results in 75 percent that would obtain a REAL ID.
\98\ Department of Homeland Security. April 28, 2008. Regulatory
Evaluation for REAL ID Program. Docket DHS-2006-0030. <a href="https://www.regulations.gov/document/DHS-2006-0030-10704">https://www.regulations.gov/document/DHS-2006-0030-10704</a>.
---------------------------------------------------------------------------
In subsequent sections, DHS refers to the 75 percent assumption as
the 75 percent threshold. The threshold represents an assumed natural
point where REAL ID adoption will slow and essentially not grow in
proportion as all those willing to get a REAL ID have done so. While
DHS assumed this value to be approximately 75 percent, the actual rate
could be higher or lower.\99\
---------------------------------------------------------------------------
\99\ DHS believes there is a greater likelihood of the actual
REAL ID threshold being greater than 75 percent rather than lower
than 75 percent.
---------------------------------------------------------------------------
4. Forecast of REAL ID Compliance Under Phased Enforcement
To estimate the percentage of REAL ID-compliant DL/IDs by the card-
based enforcement date, May 7, 2025, DHS uses the 0.56 percent CMGR
estimated from January 2023 to January 2024.\100\ Next, DHS applies the
0.56 CMGR over the 16 months between January 2024 and May 2025 to
forecast the percentage of REAL IDs in circulation by May 2025,
relative to all IDs in circulation. Using this methodology, DHS
estimates that approximately 61 percent of all IDs in circulation would
be REAL ID-compliant by the card-based enforcement date.
---------------------------------------------------------------------------
\100\ Supra note 76.
---------------------------------------------------------------------------
The aforementioned methodology assumes that the 16 months between
January 2024 and May 2025 will be similar to the trends seen between
January 2023 and January 2024.\101\ Accordingly, DHS provides an
alternate forecast on the percentage of REAL ID-compliant DL/IDs in May
2025 using the 1.03 percent CMGR for the adoption of REAL ID over last
4-years.\102\ DHS applies the 1.03 percent CMGR over the 16 months
between January 2024 and May 2025 to forecast that approximately 66
percent of IDs in circulation by May 2025 would be REAL ID-compliant by
the card-based enforcement date.
---------------------------------------------------------------------------
\101\ DHS acknowledges that there is a level of uncertainty with
compliance rates. For instance, closer to the card-based enforcement
date, the adoption rate may increase. Furthermore, the final rule,
and by extent, subsequent phased enforcement plans adopted by some
agencies may provide individuals additional time to become compliant
and thus result in lower or stagnant adoption rates.
\102\ 1.03 percent CMGR (January 2020 through January 2024) =
((162,111,658 REAL IDs in January 2024 / 99,076,573 REAL IDs in
January 2020) [supcaret] (1 / 48)-1). DHS uses the last 4 years of
data reported by all licensing jurisdictions to represent a more
comprehensive timeframe, capturing periods of high and low adoption
of REAL IDs.
---------------------------------------------------------------------------
Using the aforementioned CMGRs, 0.56 percent and 1.03 percent, DHS
estimates that approximately 61 percent (lower-end of forecast) and 66
(upper-end of forecast) of all DL/IDs in circulation by May 2025 would
be REAL ID-compliant, respectively. Table 3 reflects the forecasted
number of REAL IDs using the two CMGR described in this section.
Table 3--Forecasted Number, and Percentage of, REAL IDs in May 2025
----------------------------------------------------------------------------------------------------------------
Last 12 month trend Last 4 year trend
(0.56 percent CMGR) (1.03 percent CMGR)
----------------------------------------------------------------------------------------------------------------
Approx. IDs in Circulation.................................... 289,641,636
-------------------------------------------------
Forecasted Number of REAL IDs................................. 177,187,465 191,027,256
REAL IDs as a Percentage of All IDs........................... 61.2% 66.0%
----------------------------------------------------------------------------------------------------------------
As shown in table 3, under both the 0.56 percent CMGR and the 1.03
percent CMGR, the forecasted percentage of REAL IDs relative to all DL/
IDs in circulation for May 2025, 61.2 percent and 66.0 percent,
respectively, falls below the 2008 assumption that 75 percent of all
holders would seek to obtain a REAL ID. In table 4, DHS illustrates the
breakdown of how many DL/IDs would need to be REAL ID-compliant by the
card-based enforcement date to meet the 75 percent threshold. Applying
the 75 percent assumption from the 2008 Rule results in approximately
217.2 million of the 289.6 million IDs in circulation, in May 2025,
would be REAL ID-compliant. As shown, in addition to the 25 percent of
DL/IDs in circulation that DHS assumes would be non-compliant, an
additional 40.0 million and 26.2 million DL/IDs that would have been
assumed to be REAL ID-compliant, respectively, would not be able to be
used for official purposes beginning May 7, 2025.
Next, DHS estimates the CMGR needed to reach the 75 percent of REAL
ID-compliant licenses and identification cards by the card-based
enforcement date using the January 2024 national compliance rate for
REAL ID of 56 percent. In the sixteen months between January 2024 and
May 2025, the average monthly CMGR for the adoption of REAL ID would
need to increase to 1.85 percent.\103\
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\103\ 1.85 percent CMGR = ((217,231,227 REAL IDs to Achieve 75
Percent Threshold in May 2025 / 162,111,658 REAL IDs in January
2024) [supcaret] (1 / 16)-1).
Table 4--Number of REAL IDs in May 2025 to Achieve 75 Percent Threshold
----------------------------------------------------------------------------------------------------------------
Last 12 month trend Last 4 year trend 75% assumption (1.85
(0.56 percent CMGR) (1.03 percent CMGR) percent CMGR)
----------------------------------------------------------------------------------------------------------------
Approx. IDs in Circulation........... 289,641,636
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Number of REAL IDs Needed to Achieve 217,231,227 (75.0%)
75% Threshold.
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DHS Forecasted REAL IDs.............. 177,187,465 (61.2%).... 191,027,256 (66.0%).... 217,231,227
Difference Between Threshold and 40,043,762 (13.8%)..... 26,203,971 (9.0%)...... 0 (0.0%)
Forecasted.
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[[Page 3495]]
Next, DHS uses two scenarios to forecast the national compliance
rate following the card-based enforcement date. First, DHS assumes the
61.2 percent and 66.0 percent REAL ID adoption trends presented in
table 3 remain unchanged after the start of card-based enforcement.
Under this scenario, 2 years after card-based enforcement, in May 2027,
which is when phased approach plans would need to commence full
enforcement by, the national REAL ID rate would be 69.1 percent and
83.4 percent.\104\
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\104\ The 83.4 percent compliance rate by May 2027, 2 years
after the card-based enforcement deadline, exceeds the 75 percent
assumption from the 2008 Regulatory Evaluation. DHS notes that the
adoption rate for REAL ID may dampen as it approaches or starts to
exceed 75 percent of the population.
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Following the card-based enforcement date, DHS expects a change in
the rate of adoption. Phased enforcement plans could result in REAL ID
compliance being spread over time compared to continued increases in
compliance if full card-based enforcement went into effect across all
agencies. Phased enforcement may also incentivize some portion of the
public to obtain a REAL ID as DHS begins card-based enforcement in May
2025 without further extensions and as non-compliant DL/ID holders
attempt to use non-compliant identification for official purposes
during the period of phased enforcement. For this second scenario, DHS
uses the midpoint of the two CMGRs (0.56 percent and 1.03 percent) used
to estimate the national REAL ID rate in May 2025 to estimate the
national REAL ID rate after the card-based enforcement date. Using this
methodology, DHS calculates a 0.79 percent CMGR which would likely
capture a balance between potential high and low adoption rates for
REAL IDs.\105\ Next, DHS applies the 0.79 percent CMGR to the 61.2
percent and 66.0 percent estimates for May 2025. Two years after the
commencement of card-based enforcement, by May 2027, DHS estimates
approximately 73.1 percent and 78.8 percent of DL/IDs issued would be
REAL ID-compliant, respectively.\106\ Depending on the scenario, the 75
percent threshold may be reached as early as July 2026. However, under
a lower CMGR, in which the CMGR stays at 0.56 percent, the 75 percent
threshold may not be reached until October 2028.
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\105\ 0.79 Percent CMGR = (0.557 Percent CMGR (Last Twelve
Months) + 1.031 Percent CMGR (Last 48 Months)) / 2.
\106\ In the Regulatory Evaluation for the 2008 Final Rule, DHS
assumed 75 percent of the population that hold DL/IDs would seek to
obtain a REAL ID. However, the 78.8 percent compliance rate by May
2027, roughly 2 years post card-based enforcement exceeds the 75
percent assumption. DHS notes that the adoption rate for REAL ID may
decrease when REAL ID reaches a natural adoption threshold.
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5. Summary of REAL ID Compliance
Table 5 describes the proportion of all DL/IDs that are REAL ID-
compliant under the baseline scenario and phased enforcement at 6-month
intervals leading up to, and after, the card-based enforcement date. In
the baseline scenario, as discussed in section IV.B.2.d.3, DHS assumes
a spike in REAL ID compliance in the year leading up to the card-based
enforcement date (1.61 percent CMGR). DHS then assumes a reduction in
the CMGR to 0.91 percent from October 2025 to October 2026 and to 0.47
percent after October 2026. This accounts for anticipated increases
leading up to and through enforcement including natural adoption prior
to a deadline, additional informational campaigns, and increased
incentives for those without REAL ID compliant DL/IDs that would be
denied when using non-compliant DL/IDs for official purposes.
DHS also presents two phased enforcement scenarios that each
include a lower and upper bound range, as discussed in section
IV.B.2.d.4. Under the first phased enforcement scenario, DHS assumes
trend growth rates remain the same before and after the card-based
enforcement date (0.56 percent CMGR for the lower bound estimate, 1.03
percent CMGR for the upper bound estimate). This scenario assumes no
change in identified trends leading up or after enforcement where the
lower value represents current adoption rates (unchanged) and the
higher value accounts for enforcement and phased enforcement impacts on
adoption rates. Under the second phased enforcement scenario, DHS
assumes the 0.56 percent CMGR for the lower bound estimate and 1.03
percent CMGR for the upper bound estimate up to the card-based
enforcement date. After the card-based enforcement date, DHS assumes a
change in the CMGR to 0.79 percent, the midpoint of the lower bound and
upper bound trend rates to represent possible changes in behavior post
enforcement date. Specifically, that in the lower end, more individuals
will get REAL DL/IDs and on the higher end, less will seek REAL DL/IDs.
However, DHS acknowledges there is a level of uncertainty with such
adoption rates.
Table 5--REAL ID Compliance by Scenario
----------------------------------------------------------------------------------------------------------------
Phased enforcement scenario 1 Phased enforcement scenario 2
(constant rates) (post enforcement change)
Month Baseline (%) -------------------------------------------------------------------
Lower bound Upper bound
(%) (%) Lower bound (%) Upper bound (%)
----------------------------------------------------------------------------------------------------------------
May 24...................... 58.2 57.6 58.7 57.6 58.7
Nov 24...................... 63.8 59.3 62.2 59.3 62.2
May 25...................... 70.0 61.2 66.0 61.2 66.0
Nov 25...................... 75.7 63.1 69.9 64.0 69.0
May 26...................... 79.7 65.0 74.1 66.9 72.1
Nov 26...................... 83.6 67.0 78.6 69.9 75.4
May 27...................... 85.7 69.1 83.4 73.1 78.8
----------------------------------------------------------------------------------------------------------------
The baseline and phased enforcement scenarios present different
trade-offs. Under the baseline scenario, the REAL ID compliance rate
grows and increases more quickly as a result of more rapid surges in
adoption. Such a surge in application for REAL IDs, may lead to
potential backlogs at State DMVs and provide individuals reduced
options after the enforcement date (e.g., denied DL/ID use for official
purpose). This may serve as a strong motivator but may also have
negative consequences (e.g., not allowed to board a commercial flight
for a critical matter).
Under a phased approach, DHS forecasts a slower adoption of REAL
ID, as compared to the baseline, with
[[Page 3496]]
compliance increases being spread over the 2-year phased enforcement
period. This approach provides individuals more time to obtain a REAL
compliant DL/ID and allows individuals who possess non-compliant DL/IDs
to use such DL/IDs for official purposes while also creating
opportunities for enforcement mechanisms (e.g., warnings) that may
serve to incentivize the public to obtain a REAL ID without, or
reduced, negative consequences.
DHS notes that differences in compliance rates between the baseline
and scenarios could have large impacts. For example, TSA screens
approximately 2.5 million passengers a day.\107\ If one percent of
those passengers were to present a noncompliant DL/ID at a checkpoint,
it would result in 25,000 passengers being unable to use the
noncompliant DL/ID at the checkpoint in just a single day. If this was
extrapolated out a week the number increases to 175,000, then 750,000
in a month and 2,250,000 in three months all of which may result in
operational and security concerns. DHS recognizes TSA is a large use
case, but also recognizes that impacts on a smaller scale could apply
to other Federal agencies. If TSA chooses to employ phased enforcement
at security screening checkpoints, the impacts associated with
travelers presenting non-compliant DL/IDs would be reduced and spread
out over the course of the phased enforcement plan, rather than
absorbed in the initial days of enforcement. TSA may also employ other
actions to limit or address concerns and mitigate any impediments on
the traveling public associated with enforcement, but any such actions
and associated impacts are separate from this rule. Regardless, DHS
believes a phased enforcement approach will help reduce challenges that
large numbers of non-compliant DL/ID holders could present compared to
full and immediate enforcement under the baseline.
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\107\ Transportation Security Administration. TSA checkpoint
travel numbers (current year versus prior year/same weekday).
Passenger Volumes. Retrieved from: <a href="https://www.tsa.gov/travel/passenger-volumes">https://www.tsa.gov/
[…truncated; see source link]Indexed from Federal Register on January 14, 2025.
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.