[Federal Register Volume 85, Number 81 (Monday, April 27, 2020)]
[Rules and Regulations]
[Pages 23205-23208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08481]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 81 / Monday, April 27, 2020 / Rules
and Regulations
[[Page 23205]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 37
RIN 1601-AA97
Minimum Standards for Driver's Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes
AGENCY: Office of the Secretary, DHS.
ACTION: Final rule.
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SUMMARY: This rule delays the date for card-based enforcement of the
REAL ID regulations from October 1, 2020 until October 1, 2021.
Beginning on that date, federal agencies may not accept a state-issued
driver's license or identification card for official purposes from any
individual unless such license or card is a REAL ID compliant driver's
license or identification card issued by a state that DHS has
determined is in full compliance as defined under this part. The
regulations also permit federal agencies to accept for official
purposes until September 30, 2020, certain non-compliant driver's
licenses and identification cards. This rule extends that date,
authorizing federal agencies to continue to accept non-compliant
driver's licenses and identification cards until the new card-based
enforcement deadline.
DATES: Effective on April 27, 2020.
FOR FURTHER INFORMATION CONTACT: Steve Yonkers, Director, Biometrics
and Credentialing/REAL ID Program; telephone (202) 447-3274; email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. The REAL ID Act, Implementing Regulations, and Phased Enforcement
The REAL ID Act (the Act) sets minimum security requirements for
the issuance and production of driver's licenses and identification
cards issued by the states, territories, and the District of Columbia
in order for federal agencies to accept these documents for official
purposes.\1\ Official purposes include: (1) Accessing federal
facilities, (2) boarding federally regulated commercial aircraft, (3)
entering nuclear power plants, and (4) any other purposes that the
Secretary of Homeland Security shall determine.\2\
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\1\ 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).
\2\ Id.
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On January 29, 2008, DHS published a final rule implementing the
Act's requirements.\3\ The regulation includes both a deadline for
state compliance with the REAL ID requirements and a deadline by which
individuals must obtain a REAL ID compliant license or identification
card in order to use that document for official purposes.\4\ DHS refers
to these deadlines as ``state-based'' and ``card-based'' enforcement,
respectively.
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\3\ See 73 FR 5272 (Jan. 29, 2008) (codified as amended at 6 CFR
part 37).
\4\ 6 CFR 37.51(a) and 37.5.
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For state-based enforcement, the Act and regulation prohibits
federal agencies from accepting licenses and cards issued by states
that are not compliant with the REAL ID standards as determined by DHS.
On March 7, 2011, DHS changed the state-based enforcement deadline from
May 11, 2011 to January 15, 2013.\5\
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\5\ 76 FR 12269 (Mar. 7, 2011) (codified as amended at 6 CFR
37.51(a)).
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DHS then incrementally enforced this deadline through a phased-
enforcement schedule, pursuant to which enforcement began at DHS
headquarters, followed by enforcement at federal facilities and nuclear
power plants.\6\ On January 8, 2016, DHS announced that the final phase
of the enforcement schedule, applicable to individuals boarding
federally-regulated commercial aircraft, would begin on January 22,
2018.\7\ Thus, since January 22, 2018, the Transportation Security
Administration (TSA) has accepted driver's licenses and identification
cards only if issued by compliant states (or states with an extension
from DHS) at screening checkpoints. In practice, TSA currently accepts
driver's licenses and identification cards from all states and
territories, as all are compliant or have an extension from DHS.
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\6\ Cf. 6 CFR 37.51(a); DHS Releases Phased Enforcement Schedule
for REAL ID (Dec. 20, 2013), available at https://www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id.
\7\ See Statement By Secretary Jeh C. Johnson on the Final Phase
of REAL ID Act Implementation (Jan. 8, 2016), available at https://www.dhs.gov/news/2016/01/08/statement-secretary-jeh-c-johnson-final-phase-real-id-act-implementation.
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Under existing regulations, card-based enforcement is scheduled to
begin on October 1, 2020.\8\ Beginning on the card-based enforcement
date, federal agencies are prohibited from accepting for official
purposes a license or identification card issued by a state unless the
license or card itself was issued in accordance with the REAL ID
standards by a REAL ID compliant jurisdiction.
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\8\ 6 CFR 37.5(b).
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In addition to compliant licenses and identification cards, states
may issue, to individuals who are unable or unwilling to present the
documents and information necessary to obtain a REAL ID compliant
license, licenses and cards that are not acceptable by federal agencies
for official purposes. These non-compliant licenses and cards must (1)
clearly state that the card is not acceptable for official purposes,
and (2) have a unique design or color indicator that clearly
distinguishes them from compliant licenses and identification cards.\9\
The REAL ID regulations authorize, but do not require, federal agencies
to accept these non-compliant cards up until the October 1, 2020, card-
based enforcement deadline.\10\
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\9\ 6 CFR 37.71; REAL ID Act Sec. 202(d)(11).
\10\ See 84 FR 55017 (Oct. 15, 2019) (clarifying that the
October 1, 2020 deadline by which Federal agencies may no longer
accept non-compliant driver's licenses and identification cards for
official purposes applies to all non-compliant cards, including
state-issued driver's licenses and identification cards marked to
indicate that they may not be used for official Federal purposes).
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B. Progress Towards Full Implementation
Since its enactment in 2005, DHS has worked with the states to
implement the requirements of the REAL ID Act. DHS has provided
funding, technical assistance, outreach, and engagement. DHS has
awarded over $263 million in grant funding to assist in enhancements to
driver's license security programs.\11\ DHS and the states have
collectively built the technical infrastructure to
[[Page 23206]]
support systems to verify identity and lawful status information, which
is a key security component of the Act and regulation. DHS, the states,
and other stakeholders have conducted broad outreach and engagement to
inform the public of REAL ID requirements and upcoming enforcement
deadlines. These efforts have yielded significant progress towards full
REAL ID implementation. Fifty-two of the 56 jurisdictions subject to
REAL ID have achieved compliance with the REAL ID standards and are
currently issuing REAL ID-compliant licenses and identification
cards.\12\ Together, compliant states, territories and the District of
Columbia have issued more than 100 million compliant licenses and
cards, which represent approximately 36 percent of the population
eligible for these documents.\13\ Data from the states also indicates
that states have issued approximately 72 million non-compliant marked
licenses and identification cards. Together, this data suggests
approximately two-thirds of the population does not currently possess a
REAL ID-compliant license or identification card that such individuals
may need for official purposes, including to use as identification at
TSA airport security checkpoints to board federally regulated
commercial aircraft.\14\
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\11\ Secure Identification State Progress Report--Fiscal Year
2012 Report to Congress.
\12\ New Jersey and the Commonwealth of the Northern Mariana
Islands are pending DHS compliance determinations. American Samoa,
Oklahoma, and Oregon have not submitted requests for compliance
determination.
\13\ Based on February 2020 REAL ID issuance data voluntarily
submitted monthly to DHS by the compliant states.
\14\ Although a significant segment of the population may not
currently possess a REAL ID, they may have other forms of
identification acceptable for official purposes (e.g., a U.S.
passport, U.S. passport card, or military identification).
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DHS has increased its level of outreach and engagement to the
public and other REAL ID stakeholders, including airlines, airports,
and others in the travel industry. Through these engagements, DHS has
received useful feedback regarding the challenges of fully implementing
REAL ID ahead of the October 1, 2020, card-based enforcement deadline.
DHS has been working with the states and other stakeholders to
identify ways to modernize the REAL ID application process. To further
enlist stakeholder input on ways to streamline the driver's license
application process without compromising the security aspects of the
REAL ID process, DHS issued a request for information (RFI) on November
7, 2019.\15\ The RFI requested input from the public, states, private
sector entities and other interested stakeholders on ways to improve,
streamline, and reduce burdens associated with the current application
process through the use of new capabilities and technologies in
addition to other modification to existing application requirements.
The RFI, for which the comment period closed on December 9, 2019,
yielded more than 100 proposals from the states, the public, the
private sector, and stakeholder associations among others. DHS quickly
assessed these proposals and immediately determined that a proposal
involving electronic submission of identity source documents prior to
an in-person Department of Motor Vehicles (DMV) visit could be achieved
consistent with existing authorities. DHS issued guidance to states
recommending they consider using this process to streamline the
application process and reduce customer wait times.\16\ DHS continues
to review the proposals and is looking for additional ways to
streamline the application and issuance process consistent with the
security aspects of the REAL ID Act.
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\15\ 84 FR 60104 (Nov. 7, 2019).
\16\ See DHS, REAL ID Act of 2005 Implementation: Acceptance of
Electronically Submitted Copies of Source Documents with Certain
Restrictions in Advance of an In-Person DMV Visit (Feb. 19, 2020),
available at https://www.dhs.gov/publication/acceptance-electronically-submitted-copies-source-documents?collection=headquarters-guidance-documents.
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C. Coronavirus Disease 2019 (COVID-19)
Coronavirus Disease 2019 (COVID-19), a communicable disease caused
by a new (novel) coronavirus named SARS-CoV-2, is a respiratory disease
that can cause fever, cough, and difficulty breathing, with reported
illnesses ranging from mildly symptomatic to severe illness and death.
Although the virus that causes COVID-19 was originally detected in The
People's Republic of China, as of mid-March 2020, it had resulted in a
pandemic with cases in over 150 countries, including in the United
States and Canada. On January 30, 2020, the Director-General of the
World Health Organization declared the outbreak a ``public health
emergency of international concern'' under the International Health
Regulations (2005).\17\ On January 31, 2020, the Secretary of the
Department of Health and Human Services declared a nationwide ``public
health emergency'' under section 319 of the Public Health Service Act,
42 U.S.C. 274d, as a result of confirmed cases of COVID-19.\18\ On
March 11, 2020, the World Health Organization announced that the COVID-
19 outbreak can be characterized as a pandemic. On March 13, 2020, the
President determined that the ongoing COVID-19 pandemic is of
sufficient severity and magnitude to warrant an emergency determination
under section 501(b) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121-5207. In addition, on March
13, 2020, the President declared a national emergency under sections
201 and 301 of the National Emergencies Act, 50 U.S.C. 1601 et seq.\19\
State and local jurisdictions throughout the United States are engaged
in various social distancing practices, which frequently entail closing
non-essential business and government services and avoiding crowds. On
March 17, 2020 the National Governors Association (NGA) sent DHS a
letter requesting an extension of the REAL ID enforcement deadline by
at least a year due in part to many states closing DMVs and other state
facilities as a result of the COVID-19 public health crisis.\20\
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\17\ Statement on the second meeting of the International Health
Regulations (2005) Emergency Committee regarding the outbreak of
novel coronavirus (2019-nCoV) (Jan. 30, 2020), available at https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-
committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov).
\18\ HHS, ``Determination that a Public Health Emergency
Exists,'' https://www.phe.gov//emergency//news//healthactions//phe//Pages//2019-nCoV.aspx.
\19\ Proclamation 9994 of Mar. 13, 2020 on Declaring a National
Emergency Concerning the Novel Coronavirus Disease (COVID-19)
Outbreak, 85 FR 15337 (Mar. 18, 2020).
\20\ National Governors Association letter to Acting Secretary
Wolf (Mar. 17, 2020).
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II. Card-Based Enforcement Deadline
Notwithstanding the significant progress made towards full REAL ID
implementation, the Secretary recognizes significant challenges
associated with full enforcement in the current environment. The
outbreak and continued spread of COVID-19 has significantly disrupted
the daily lives and activities of all Americans. It has shifted
priorities and severely curtailed daily interactions. To limit exposure
and reduce the chance of transmission, state and local government
offices have restricted all but the most essential services. This
includes activities at state DMVs where offices are either operating at
limited capacity, providing remote services, or, in some cases, are
temporarily closed to the public.\21\
[[Page 23207]]
Additionally, some states have authorized grace periods and extensions
to those with expiring licenses as a further way to avoid in-person
contact and mitigate risks to the health and safety of the public and
state government employees.
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\21\ Individuals should check with their state DMV for policies
and guidance on license issuance and renewals and other services
during the disruption caused by COVID-19.
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DHS recognizes the impact these disruptions will have on the
ability of an individual to obtain a REAL ID compliant license or
identification card before October 1, 2020. Moreover, the Secretary
recognizes the importance of social distancing, and is taking this
action to assure the public that there is no need to visit a DMV to
obtain a REAL ID document at this time.
Accordingly, the Secretary is extending the date by which
individuals must obtain a REAL ID license or identification card to use
that document for official purposes until October 1, 2021.
Additionally, to avoid any confusion about the ability of federal
agencies to continue to accept certain non-compliant licenses and
identification cards issued under Sec. 37.71, DHS also is extending
the date by which federal agencies may continue to accept these
licenses and identification cards for official purposes until September
30, 2021. Although some agencies, including TSA, accept these licenses
and identification cards for official purposes, others may decide not
to accept, or currently do not accept, non-compliant marked cards for
official purposes. Individuals who need to visit a federal facility,
building, or office should check in advance whether the agency requires
identification for access purposes and, if they do, the forms of
identification they accept.
III. Regulatory Analysis
A. Administrative Procedure Act
DHS takes this action without prior notice and public comment.
Sections 553(b) and (d) of the Administrative Procedure Act (5
U.S.C. 553) authorize agencies to dispense with certain rulemaking
procedures when they find good cause to do so. Under section 553(b),
the requirements of notice and opportunity to comment do not apply when
the agency for good cause finds that these procedures are
``impracticable, unnecessary, or contrary to the public interest.''
Section 553(d) allows an agency, upon finding good cause, to make a
rule effective immediately, thereby avoiding the 30-day delayed
effective date requirement in section 553.
This final rule recognizes the need to extend the card-based
enforcement deadline in light of the significant disruption and
uncertainty in government operations caused by the COVID-19 virus, as
well as the need to encourage appropriate social distancing behavior.
Delaying the change to the regulation's enforcement date by first
undergoing notice and comment would be contrary to the public interest,
as an expeditious regulatory announcement of the new deadline is
necessary for state and individual planning purposes. These factors
suggest that delays associated with notice and comment rulemaking would
potentially undermine critical public health efforts at the federal,
state, territorial, or local level. DHS therefore has good cause to
bypass such procedures.
B. Paperwork Reduction Act
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
C. Executive Orders 12866 and 13563 Assessment
This rule constitutes a ``significant regulatory action'' under
Executive Order 12866, as supplemented by Executive Order 13563, and
therefore has been reviewed by the Office of Management and Budget
(OMB). Executive Order 12866 defines ``significant regulatory action''
as one that is likely to result in a rule that may (1) have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local, or Tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights or
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. DHS is proceeding
under the emergency provision at Executive Order 12866 Section
6(a)(3)(D) based on the urgent needs described above.
D. Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), requires Federal agencies to consider the
potential impact of regulations on small businesses, small government
jurisdictions, and small organizations during the development of their
rules. This final rule, however, makes changes for which notice and
comment are not necessary. Accordingly, DHS is not required to prepare
a regulatory flexibility analysis. See 5 U.S.C. 603, 604.
E. Executive Order 13132 (Federalism)
A rule has federalism implications under Executive Order 13132,
``Federalism,'' if it has a substantial direct effect on state
governments, on the relationship between the national government and
the states, or on the distribution of power and responsibilities among
the various levels of government. DHS has analyzed this rule under that
Order and has determined that although this rule affects the states, it
does not impose substantial direct compliance costs or preempt state
law. In fact, the rule is responsive to concerns expressed by state
agencies regarding the upcoming deadlines. DHS has determined that the
rule is consistent with Executive Order 13132.
F. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 requires Federal agencies
to assess the effects of their discretionary regulatory actions. In
particular, the Unfunded Mandates Reform Act addresses actions that may
result in the expenditure by a state, local, or Tribal government, in
the aggregate, or by the private section of $100 million (adjusted for
inflation) or more in any one year. This final rule will not result in
such an expenditure.
G. Executive Order 13175 (Tribal Consultation)
This rule does not have Tribal Implications under Executive Order
13175, ``Consultation and Coordination with Indian Tribal
Governments,'' because it does not have a substantial direct effect on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
H. Environment
DHS reviews proposed actions to determine whether the National
Environmental Policy Act (NEPA) applies to them and, if so, what degree
of analysis is required. DHS Directive 023-01 Rev. 01 (Directive) and
Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish
the procedures that DHS and its
[[Page 23208]]
components use to comply with NEPA and the Council on Environmental
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500
through 1508.
The CEQ regulations allow federal agencies to establish, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') which experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require an Environmental Assessment (EA) or
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4.
For an action to be categorically excluded, it must satisfy each of the
following three conditions: (1) The entire action clearly fits within
one or more of the categorical exclusions; (2) the action is not a
piece of a larger action; and (3) no extraordinary circumstances exist
that create the potential for a significant environmental effect.
Instruction Manual section V.B(2)(a)-(c).
The delay effectuated by this rule fits within categorical
exclusion A3(a) ``Promulgation of rules . . . of a strictly
administrative or procedural nature.'' Instruction Manual, Appendix A,
Table 1. Furthermore, the rule is not part of a larger action and
presents no extraordinary circumstances creating the potential for
significant environmental impacts. Therefore, the rule is categorically
excluded from further NEPA review.
I. Signature
The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel, for purposes of
publication in the Federal Register.
List of Subjects in 6 CFR Part 37
Document security, Driver's licenses, Identification cards, Motor
vehicle administrations, Physical security.
For the reasons set forth above, the Department of Homeland
Security amends 6 CFR part 37 as follows:
PART 37--REAL ID DRIVER'S LICENSES AND IDENTIFICATION CARDS
0
1. The authority citation for part 37 continues to read as follows:
Authority: 49 U.S.C. 30301 note; 6 U.S.C. 111, 112.
Subpart A--General
0
2. In Sec. 37.5, revise paragraphs (b) and (c) to read as follows:
Sec. 37.5 Validity periods and deadlines for REAL ID driver's
licenses and identification cards.
* * * * *
(b) On or after October 1, 2021, Federal agencies shall not accept
a driver's license or identification card for official purposes from
any individual unless such license or card is a REAL ID-compliant
driver's license or identification card issued by a State that has been
determined by DHS to be in full compliance as defined under this
subpart.
(c) Until September 30, 2021, Federal agencies may accept for
official purposes a driver's license or identification card issued
under Sec. 37.71. On or after October 1, 2021, Federal agencies shall
not accept for official purposes a driver's license or identification
card issued under Sec. 37.71.
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
[FR Doc. 2020-08481 Filed 4-24-20; 8:45 am]
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